CV-728829-17/KI

Law Offices of Aloy O. Ibuzor, Hartford, Connecticut (Duane Frankson of counsel), for Travelers Insurance Company, defendant.

The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Jules Francois Parisien, M.D., plaintiff

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for an examination under oath (EUO) on January 11, 2017 and March 8, 2017, or in the alternative, [*2]to compel plaintiff to appear for an examination before trial (Motion Seq. No. 001). Defendant also seeks an order deeming certain documents as genuine and certain facts as admitted which were submitted in a notice to admit to plaintiff’s counsel.

Plaintiff opposes the motion and cross-moves for summary judgment in his favor (Motion Seq. No. 002). Defendant did not submit any opposition papers to plaintiff’s cross motion or any reply papers in further support of defendant’s motion.

The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff’s requests to reschedule the EUOs for lengthy adjournments of two to three months.

BACKGROUND

On September 27, 2016, plaintiff’s assignor, Nicanor Gonzalez, was allegedly injured in a motor vehicle accident (see defendant’s exhibit C in support of motion, complaint ¶ 3; see also plaintiff’s exhibit 1 in support of cross motion, NF-AOB form).

On March 9, 2017, plaintiff allegedly rendered medical services to its assignor (see defendant’s exhibit A3 in support of motion, NF-3 forms dated 03/20/2017). Plaintiff allegedly submitted two bills these services: one in the amount of $267.79, and another in the amount of $1,625, to a post office box for defendant located in Melville, New York (id.; see also plaintiff’s exhibit 4 in support of cross motion, aff of Julien Parisien, MD ¶¶ 34-39). Defendant allegedly received both bills on March 30, 2017 (see defendant’s exhibit A in support of motion, aff of Lorraine Couvaris ¶ 8 [e]-[f]).

Scheduling of the EUO on January 11, 2017

Prior to the receipt of the bills at issue, by a letter dated December 9, 2016, addressed to the Rybak Firm, PLLC, defendant’s counsel scheduled an EUO of plaintiff to be held on January 11, 2017 at 10:00 a.m. at a court reporting location in Brooklyn (see defendant’s exhibit B, scheduling letter). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on December 9, 2016 (see id.). Copies of the letter were allegedly sent to plaintiff, among others.

By a letter dated January 5, 2017, the Rybak Firm, PLLC replied to the December 9, 2016 letter, and it informed defendant’s counsel that plaintiff retained the Rybak Firm, PLLC to represent his interests in the EUO (see defendant’s exhibit B in support of motion). However, plaintiff’s counsel indicated that the chosen date was inconvenient for Dr. Parisien and should be rescheduled, stating,

“Please be advised that Dr. Parisien has fully booked his schedule till the end of February 2017. Accordingly as the law provides that an EUO be scheduled for a time and place that is convenient to the person being examined, please let our office know which other dates in March Travelers is available to conduct the EUO of Dr. Parisien so that we may arrange for a mutually convenient date, time and location”

* * *

Finally, please be advised that Dr. Parisien must be reimbursed in the amount of $5000.00 per claimant for his loss of income and business opportunities he would suffer while preparing for, traveling to, appearing at and traveling from the EUO you have requested.

* * *

Prior to the EUO, Dr. Parisien needs a firm reassurance by you or Travelers that Travelers has agreed to reimburse our client for his time in the amount listed above, and at the commencement of the EUO, Dr. Parisien must be presented with a check (of the entire amount for $5,000.00 per claimant) from Travelers compensating our client”

(see defendant’s exhibit B in support of motion [emphasis in original]).

On January 11, 2017, defendant’s counsel, by Duane Frankson, Esq., placed a statement on the record at 11:48 a.m. that he had been present at the EUO location since 9:46 a.m., that the time was 11:48 a.m., and no one has appeared on behalf of Dr. Jules Francois Parisien (see defendant’s exhibit B in support of motion, Jan 11, 2017 EUO tr. at 6).

Scheduling of the EUO on March 8, 2017

By a letter dated January 12, 2017 addressed to the Rybak Firm, PLLC, defendant’s counsel stated that the EUO scheduled for January 11, 2017 “will be recorded as a non-appearance” and scheduled a follow-up EUO of plaintiff to be held on March 8, 2017 at 10:00 a.m. at the same court reporting location in Brooklyn (see defendant’s exhibit B in support of motion, scheduling letter). The letter further stated, “We will require submission of detailed appoint [sic] logs before considering any further reschedule date for the EUO. . . . Please note your response fails to include documentation substantiating your demand for $5,000. . . Travelers will issue a disbursement for loss of earnings and travel expense claims for medical providers up to $500, immediately after EUO has been conducted. Compensation beyond $500 will be considered only after documentation substantiating the amount demanded has been received and examined. There is no requirement that compensation occur in advance of the scheduled examination” (id.). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on January 12, 2017 (see id.).

By a letter dated February 27, 2017, the Rybak Firm, PLLC replied to the January 12, 2017 letter, and plaintiff’s counsel again indicated that the chosen date was inconvenient for Dr. Parisien and should be rescheduled, stating,

“Please note that it is very common amongst medical providers to have their schedules fully booked for about the same period of 2-4 months depending on the circumstances, as well as to clear or extend them accordingly, which is usually the main reason/valid excuse of their unavailability to appear for a potential EUO.

As such is the case, please be advised that Dr. Parisien has extended his schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 8, 2017. Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person being examined, we reiterate our previous request for an adjournment. Please let our office know which other dates in May 2017 Travelers is available to conduct the EUO of Dr. Parisien so that we may arrange for a mutually convenient date, time and location”

(see defendant’s exhibit B in support of motion [emphasis in original]).

By a letter dated March 6, 2017, defendant’s counsel responded, “We will not reschedule the examination of your client, Jules Francois Parisien, MD, scheduled for March 8, 2017; your client’s appearance is required and should your client fail to appear the date will be recorded as the second non-appearance” (see defendant’s exhibit B in support of motion). According to an [*3]affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on March 8, 2017, and the documents were emailed and faxed to their office (see id.).

On March 8, 2017, defendant’s counsel, by Duane Frankson, Esq., placed a statement on the record at 10:58 a.m. that he had been present at the EUO location since 9:45 a.m., that the time was 11:05 a.m., no one has arrived, and no one had contacted him to indicate they were attending (see defendant’s exhibit B in support of motion, Mar 8, 2017 EUO tr. at 3-6).

By a letter dated March 10, 2017, plaintiff’s counsel replied to defendant’s counsel letter dated March 6, 2017, stating, in pertinent part:

“Moreover, you were advised in advance of the appearance that our client was unavailable for the first chosen EUO date. It is not unreasonable to request for an adjournment past that date, but considering that first date a “no show” is unreasonable by any standard. As you well know, it is common courtesy to extend adjournments between counsel in order to accommodate everyone’s busy schedule. Our office has extended many such courtesies to your firm.

Further, the fact that Travelers assigned a second, arbitrary date for the EUO of our client does not obfuscate the need to have a mutually convenient dated for the examination. It was again communicated previously that the chosen date was inconvenient for Dr. Parisien. And you will not be provided with patient logs to substantiate the level of inconvenience because it is simply a dilatory, red-tape delay tactic”

(see defendant’s exhibit B in support of motion).

By a letter dated April 6, 2017, defendant’s counsel responded, in relevant part, “Your representations concerning your client’s availability have been and continue to be vague. Despite our attempts to accommodate your client, you consistently seek to adjourn the matter” (see defendant’s exhibit B in support of motion).

Denial of Claim Forms

On April 10, 2017, defendant allegedly issued a denial of the bill in the amount of $267.79, for the date of service on March 9, 2017 (see defendant’s exhibit A4 in support of motion, NF-10 Forms). On April 11, 2017, defendant allegedly issued a denial of the bill in the amount of $1,625, for the date of service on March 9, 2017 (see id.). The Explanation of Benefits attached to each denial identically stated, in relevant part:

“JULES FRANCOIS PARISIEN HAS FAILED TO COMPLY WITH ITS OBLIGATION TO PRESENT A PROPER PROOF OF CLAIM . . . BY FAILING TO APPEAR FOR AN EXAMINATION UNDER OATH ON 1/11/17 AND 3/8/17. THEREFORE, YOU HAVE FAILED TO SATISFY A CONDITION OF COVERAGE — YOUR CLAIM IS DENIED. DUE TO THE FAILURE OF JULES FRANCOIS PARISIEN TO COMPLY WITH POLICY — NO-FAULT GUIDELINES — REQUIREMENTS, THE ENTIRE CLAIM FOR NO-FAULT BENEFITS IS DENIED”

(see defendant’s exhibit A4 in support of motion, NF-10 forms and Explanations of Benefits).

The Instant Action

On August 24, 2017, plaintiff commenced this action, asserting two causes of action to recover unpaid first-part no-fault benefits for the services rendered, plus interest, and a third [*4]cause of action seeking attorneys’ fees (see defendant’s exhibit C, summons and complaint). On September 29, 2017, defendant allegedly answered the complaint (see defendant’s exhibit C in support of motion, answer and affidavit of service).

DISCUSSION

I. Defendant’s Motion for Summary Judgment and other relief (Motion Seq. No. 001)

Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff twice failed to appear for duly scheduled EUOs on January 11, 2017 and March 8, 2017. In the alternative, defendant moves to compel plaintiff to appear for an examination before trial. Defendant also seeks an order deeming certain documents as genuine and certain facts as admitted which were submitted in a notice to admit to plaintiff’s counsel.

A. The branch of defendant’s motion for summary judgment

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137 [A], 2011 NY Slip Op 50194 [U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760 [U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]). Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132 [A], 2011 NY Slip Op 50601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

1. Mailing of the EUO scheduling letters

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2d Dept 2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, —NY3d&mdash, 2021 NY Slip Op 01933, *3 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; accord American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, defendant established mailing of the EUO scheduling letters, by submitting affidavits of service, which stated that the EUO scheduling letter dated December 9, 2016 was sent by regular mail to the Rybak Firm, PLLC on December 9, 2016, and that the EUO scheduling letter dated January 12, 2017 was sent by regular mail to the Rybak Firm, PLLC on January 12, 2017 (see defendant’s exhibit B in support of motion).

Plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed. “[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption” (Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). Contrary to plaintiff’s argument, these affidavits of service were from a person with personal knowledge of the actual mailing.

Plaintiff points out that the EUO scheduling letters did not include the floor number or suite number in the address, and therefore argues that the EUO scheduling letter was sent to the wrong address (affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion ¶ 112). However, minor errors in the mailing address will not render service void where it is “virtually certain” that the mailing will arrive at its intended destination (see Brownell v Feingold, 82 AD2d 844, 845 [2d Dept 1981]). Here, defendant submitted copies of the letters from plaintiff’s counsel, who acknowledged receipt of the EUO scheduling letters.

2. Plaintiff’s failure to appear

Defendant established that plaintiff twice failed to appear for EUOs on January 11, 2017 and March 8, 2017, by submitting certified transcripts from the EUOs scheduled on January 11, 2017 and March 8, 2017. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO (see affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion ¶¶ 62-63), a certified transcript memorializing the missed appearance is sufficient (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Atlantic Radiology Imaging, P.C. v Metro. Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

In opposition, plaintiff extensively argues that defendant failed to establish that it had objective reasons for requesting plaintiff’s EUO (see affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion ¶¶ 92-108, 123-147). However, the Appellate Term, Second Department has repeatedly ruled, “contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (21st Century Pharmacy, Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; see also [*5]Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Contrary to plaintiff’s argument, “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

Plaintiff next argues that defendant cannot meet its burden that plaintiff failed to appear at the EUOs “because it repeatedly scheduled EUOs that were inconvenient to Plaintiff and made no effort to cooperate with Plaintiff to schedule the EUOs at a time and place that was reasonable for all parties” (affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion ¶ 110). Plaintiff asserts that “Plaintiff, through counsel, made clear that because Plaintiff was a medical provider, his schedule was often booked 2-4 months in advance. Yet defendant never scheduled or tried to schedule an EUO outside of this time constraint. As a result, Plaintiff was not able to attend EUOs that defendant scheduled which conflicted with Plaintiff’s schedule” (id. [internal citations omitted]). In its moving papers, defendant contended, “Plaintiff’s communications only demonstrate an effort to frustrate the claim process and have no substantive value beyond confirming notice occurred and Plaintiff failed to attend” (affirmation of defendant’s counsel in support of motion ¶ 13).

As plaintiff points out, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant” (11 NYCRR 65-3.5 [e]). The regulations do not place a limit on the number of times an applicant for no-fault benefits can request to reschedule an EUO. Courts have ruled that an EUO that is mutually rescheduled prior to the appointed time would not be deemed to constitute a failure to appear (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Psychological Servs., P.C. v Mercury Cas. Co., 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015]).

However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made (Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc., 64 Misc 3d 131[A], 2019 NY Slip Op 51040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled]).

However, if plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law (Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages]).

If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was “reasonably convenient” to plaintiff (Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). One lower court has ruled [*6]that an insurer may not unreasonably refuse to adjourn the exams “where a good-faith request is made to re-schedule and the adjournment sought is not excessive” (Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013]; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 [App Term, 2d Dept 2005]).

Here, defendant’s submissions indicate that the requests of plaintiff’s counsel to reschedule were made days before the EUOs were to occur, even though defendant’s counsel had mailed the scheduling letters more than a month before the scheduled EUOs. Defendant’s counsel apparently received plaintiff’s letter dated January 5, 2007 on January 10, 2017, the day before plaintiff’s EUO, as indicated by a date stamp on the letter (see defendant’s exhibit B in support of motion). Similarly, defendant’s counsel apparently received plaintiff’s letter dated February 27, 2017 on March 2, 2017, six days before plaintiff’s scheduled EUO on March 8, 2017 (see id.).

Assuming, for the sake of argument, that the requests of plaintiff’s counsel were both timely, plaintiff did not raise a triable issue of fact as to whether these requests were proper, or that they were made in good faith. Plaintiff requested two lengthy adjournments of the EUO for two to three months, ostensibly for the reason that plaintiff is a doctor. If that reason, without more, constituted a good faith basis for an adjournment, then plaintiff could postpone an EUO indefinitely. As plaintiff’s counsel points out, when an insurer schedules an EUO, the insurer must inform the applicant seeking no-fault benefits that “the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR 65-3.5 [e]), which occurred here. Thus, any concern for the loss of earnings would not be a valid reason to reschedule an EUO. Additionally, when requesting to reschedule, plaintiff offered no specific dates which would be convenient for plaintiff. On this motion, plaintiff did not come forward within any additional information to support the contention that such lengthy adjournments would be reasonable under the circumstances. Thus, plaintiff fails to raise a triable issue of fact as to whether his requests for adjournments for two to three months were either proper, or made in good faith.

Lastly, plaintiff contends that defendant “failed to agree to reimburse the provider” for loss of earnings (see affirmation of plaintiff’s counsel ¶ 111). Plaintiff demanded a flat, up-front reimbursement in the amount of “$5,000 per claimant”, which plaintiff insisted be tendered by check “at the commencement of the EUO” (see defendant’s exhibit B in support of motion, letter from plaintiff’s counsel dated January 5, 2017). However, plaintiff’s counsel cites no authority for the proposition that the insurer must reimburse the lost earnings before the EUO takes place, and that the lack of reimbursement prior to the EUO would excuse the person to be examined from having to appear. As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. In this case, the request of plaintiff’s counsel for a flat, up-front fee of $5,000 per claimant was improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations”]).

Finally, plaintiff’s reliance upon Meridian Psychological Services, P.C. v Allstate Insurance Company (51 Misc 3d 128[A], 2016 NY Slip Op 50375[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) is misplaced. There, the attorney testified at a nonjury trial that, [*7]“for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff’s assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30” (id.). Here, unlike Meridian Psychological Services, P.C., the certified EUO transcripts reflect that defendant’s counsel stated on the record that he had been present before the scheduled start time of the EUOs. Thus, no reasonable inference could be drawn that plaintiff had appeared at the EUOs and left before defendant’s counsel had checked for plaintiff’s appearance. Neither does plaintiff submit an affidavit stating that he had appeared for any of the EUOs.

Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff twice failed to appear for duly scheduled EUOs.

3. Timely Denial of the Claims

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. V Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

Here, the bills at issue were dated March 20, 2017 (see defendant’s exhibit A3 in support motion, NF-3 Forms), and the denials were allegedly issued on April 10 and 11, 2017. Although defendant claims to have received the bills on March 30, 2017, the actual date of receipt is not a material issue of fact in this case. Even assuming, for the sake of argument, that the bills were received on March 20, 2017, the issuance of the denials on April 10 and April 11, 2017 would be within 30 days of receipt of the bills.

Because defendant requested plaintiff’s EUO prior to its receipt of the bills, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 did not apply (Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]).^[FN1]

Plaintiff argues that defendant must establish when the NF-2 form was mailed to establish timely scheduling of the EUO, because the EUO was a “pre-claim” EUO, citing Okslen Acupuncture, P.C. v Lancer Insurance Company (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U] [App Term, 1st Dept 2013]). This argument is without merit. Proof of timely mailing of the NF-2 form “is not part of an insurer’s prima facie burden when seeking summary judgment on the ground that a provider or the provider’s assignor failed to appear for duly scheduled EUOs” (BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co., 70 Misc 3d 138[A], 2021 NY Slip Op 50083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Plaintiff’s reliance upon Okslen Acupuncture, P.C. is misplaced. In that case, the Appellate Term, First Department held that pre-claim requests for EUOs do not trigger tolling of the 30-day period for [*8]an insurer to pay or otherwise deny a claim. Here, tolling is not at issue because the denials were allegedly issued within 30 days after they were received.

To establish the mailing of the denials, defendant submitted an affidavit from Lorraine Couvaris, a Claim Litigation Representative employed by defendant (see defendant’s exhibit A in support of motion, Couvaris aff ¶¶ 1-2). Defendant also submitted an affidavit from Mary A. Googe, the manager of a Special Processing Unit of a centralized mailing facility located in Norcross, Georgia, referred to as the Norcross Data Service Center, which does mailing for The Travelers Indemnity Company and its affiliated underwriting companies (see defendant’s exhibit A1 in support of motion, Googe aff ¶¶ 1-3).

Couvaris has been employed in the Claim Department since May 2005, and she has training and experience in claim processing and mail processing procedures that were in effect for the claims at issue (Couvaris aff ¶¶ 3-4). Couvaris processed the bills and issued the denials in this case (id. ¶ 8).

According to Couvaris, claims and documents submitted in support of claims that Travelers received were directed to a Claim Representative for processing (id. ¶ 5 [d]). The Claim Representative noted receipt of the submission on an electronic record, reviewed, the submission, and determined if claims were eligible for coverage (id.). The Claim Representative would seek an EUO if an EUO was deemed appropriate to ascertain the validity of claims (id. ¶ 5 [o]). Once the Claim Representative received the results of an EUO, the Claim Representative would make a determination concerning coverage of related claims (id. ¶ 5 [p]). If the determination of a Claim Representative was a denial, two copies of an “explanation of benefits” or NF-10, and any relevant documents were prepared and directed to the claimant and/or any designated assignee (id. ¶ 5 [q] [iii]). Contemporaneously with the determination, the Claim Representative would note the process on an electronic log (id. ¶ 5 [r]). The claims and documents submitted in support of the claims were kept, maintained, and relied upon by the Claim Representative in processing of the claim, and copies of all documents and electronic logs related to a claim are maintained by defendant in the regular course of business (id. ¶ 7)

Couvaris described the customary practice of defendant’s Melville Claim Center for correspondence as follows: a Claim Representative prepared the documents and reviewed them to ensure the information noted was accurate, and then transmitted the documents electronically for mailing to Norcross Data Center, located in Norcross, Georgia (id. ¶ 6 [a]).

According to Googe, the Norcross Data Service Center is the centralized facility from which certain Travelers documents, including no-fault denials (form NF-10s), verification requests, and associated notices of claim processing delays, are printed, batched, and mailed (Googe aff ¶ 4). When a Travelers employee completes an NF-10 denial, verification request, or a delay letter from his or her desktop computer, and executes the “send and archive option,” the document will be electronically transmitted to the Norcross Data Service Center, where it is batched, printed, and then mailed (id. ¶ 6).

Once transmitted, documents are electronically batched; and, when the documents are printed, they contain encoded information, which identifies the particular batch they were processed in (id. ¶ 8). The documents are then placed into a machine which inserts them into a windowed envelope where the address of the recipient is shown (id.). The envelope is sealed, and the appropriate amount of postage is applied according to size and weight (id.). The machine counts the number of documents and envelopes processed to check that all mail in a particular batch has gone through the process, by comparing the actual number of envelopes with [*9]the expected number (id.). A visual inspection is also performed to ensure that the address of the recipient appears visible in the envelope window (id. ¶ 9). The reconciled mail is then placed into covered United States Postal Service trays, which are secured and placed into United States Postal Service designated containers, which are then delivered to a secure loading facility, where they are picked up by United States Postal employees (id. ¶ 10).

With respect to NF-10 denials, the denials are mailed in duplicate, and mailed to the identified recipient no later than the next business day after the date which appears on the denial (id. ¶¶ 6-7, 13).

In this case, Couvaris stated that defendant received two claims for services rendered to Nicanor Gonzalez on March 30, 2017 (Couvaris aff ¶ 8 [f]). After reviewing the claims, Couvaris denied them for the failure of plaintiff to appear at scheduled EUOs on January 11, 2017 and March 8, 2017 (id. ¶ 8 [g]). Couvaris issued denial of claim forms in duplicate for each of the claims, and sent them to plaintiff and Gonzalez (id. ¶ 8 [h]). Couvaris then documented the electronic record with an account of her review and denial (id. ¶ 8 [i]).

Based on the detailed affidavits of Couvaris and Googe, defendant established proof of mailing of the denials no later than the next business day after April 10 and 11, 2017, the date that appears on the denials, in accordance with a standard office practice and procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; Crystal Acupuncture, P.C. v Travelers Ins., 66 Misc 3d 130[A], 2019 NY Slip Op 52055[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

“[T]o rebut the presumption, there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A, —NY3d—, 2021 NY Slip Op 01933, *3).

Contrary to plaintiff’s argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because Couvaris stated that she was the Claims Litigation Representative who issued the denials, and Couvaris also had personal knowledge of the claims procedures and mailing procedures (Couvaris aff ¶¶ 4, 8 [g]).

As plaintiff points out, Couvaris indicated that she had reviewed electronic logs related to this claim, but defendant did not submit copies or printouts of the electronic logs. “Evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible” (Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and internal quotation marks omitted]). Thus, any information that Couvaris could only have obtained from the electronic log would not be admissible. However, in this case, Couvaris had personally issued the denials, and had submitted copies of the denials themselves. Plaintiff does not point to any information in Couvaris’s affidavit relevant to proof of mailing that could only have been derived from a review of the electronic log.

Contrary to plaintiff’s argument, the failure to send a denial of claim form in duplicate as required under 11 NYCRR 65-3.8 (c) (1) is not, on its own, a fatal error (Performance Plus Med., P.C. v Utica Mut. Ins. Co., 47 Misc 3d 129[A], 2015 NY Slip Op 50399[U] [App Term, [*10]2d Dept 2d, 11th & 13th Jud Dists 2015]; Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In any event, Couvaris and Googe averred that denial of claim forms are sent in duplicate (Couvaris aff ¶ 8 [h]; Googe aff ¶ 6).

Acupuncture Prima Care, P.C. v State Farm Mutual Auto Insurance Company (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]), which plaintiff cites, is distinguishable.

There, to establish proof of mailing, the defendant submitted two affidavits—an affidavit from a claims representative from the defendant’s office in Ballston Spa, New York and an affidavit from a claims support supervisor from the defendant’s office in Melville, New York. The claims representative described the procedure for generating the denial of claim forms, which were then sent to Claims Support Services personnel for processing (id. at *2). The affidavit from the Claims Support Services Supervisor stated, in essence, that the generated denial of claim forms are retrieved from a printer, placed in an envelope, and picked up by a courier who delivers the envelope to the United States Postal Service (id. at *2-3).

The court in Acupuncture Prima Care, P.C. ruled, “while this may describe a ‘standard office practice and procedure,’ it does not describe one “used to ensure that items were properly addressed and mailed” (id. at *3 [internal citation omitted]). The court reasoned that the procedure described did not contain enough safeguards to “take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office” (id.) The court also faulted the affiants for not indicating the basis for their knowledge that the office practice and procedure was followed, and the affiants failed to indicate that they were familiar with the defendant’s office practices and procedures when the first of the denials were allegedly mailed (id. at *3-4). Finally, the court indicated that neither of the affiants (who were in Ballston Spa and Melville) indicated from which office the denials were allegedly mailed, when the denials bore an address from Parsippany, New Jersey (id.).

Here, unlike the affiants in Acupuncture Prima Care, P.C., Googe established personal knowledge of the standard mailing procedures, based on training and experience that Googe received (Googe aff ¶¶ 2-3). In any event, the same court which decided Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond v Government Employees Insurance Company (50 AD3d 1123 [2d Dept 2008]) (see Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

In sum, plaintiff failed to raise a triable issue of fact as to whether the denials were mailed to plaintiff no later than one business day after April 10 and April 11, 2017.

Given all the above, the court grants the branch of defendant’s motion for summary judgment dismissing the complaint, on the ground that plaintiff twice failed to appear for duly scheduled EUOs on January 11, 2017 and March 8, 2017.

B. The branch of defendant’s motion to compel plaintiff to appear for an examination before trial

In light of dismissal of the complaint, the branch of defendant’s motion which sought, in the alternative, an order compelling plaintiff to appear for an examination before trial, is denied as academic.

C. The branch of defendant’s motion seeking an order deeming documents as admitted pursuant [*11]to CPLR 3123

The branch of defendant’s motion seeking an order to “deemed the documents described in Defendant’s Notice to Admit as genuine and the matters of fact set forth in Defendant’s Notice to Admit as true” is denied as academic, because defendant was granted summary judgment dismissing the complaint. In any event, “[t]he question as to whether a party has rightly or wrongly declined for reasons set forth to admit or to deny an item tendered in a notice to admit is for the trial court” (Belfer v Dictograph Products, 275 App Div 824 [1st Dept 1949]).

II. Plaintiff’s Cross Motion for Summary Judgment (Motion Seq. No. 002)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 12[A]; 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Here, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim form in defendant’s motion papers, which admitted receipt of the bill (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

However, plaintiff’s cross motion for summary judgment in its favor against defendant is denied. As discussed above, defendant timely denied the bills on the grounds that plaintiff twice failed to appear for duly scheduled EUOs.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that defendant’s motion for summary judgment dismissing the complaint, or in the alternative, to compel plaintiff to appear for an examination before trial and other relief (Motion Seq. No. 001) is GRANTED TO THE EXTENT that the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted, and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the remainder of defendant’s motion is denied; and it is further

ORDERED that plaintiff’s cross motion for summary judgment in its favor (Motion Seq. No. 002) is DENIED; and it is further

ORDERED that the Clerk is directed to enter judgment in defendant’s favor accordingly.

This constitutes the decision and order of the court.

Dated: April 30, 2021
New York, New York
ENTER:
________________________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:However, once the bills are received, defendant is required to comply with the follow-up provisions of 11 NYCRR 65.36 (b) (Mapfre Ins. Co. of NY, 140 AD3d at 470). In this case, the follow-up EUO scheduling letter was sent before the bills at issue were received.

CV-704628-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro LLC

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

Michael Seth Nightingale

100 Garden City Plaza, Suite 414

Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated August 21, 2019 (“Motion“) and file stamped by the court on August 26, 2019. 1

Plaintiff’s Affirmation in Opposition dated and electronically filed with the court on November 23, 2020 (“Opposition“). 2

Defendant’s Reply Affirmation dated and electronically filed with the court on December 4, [*2]2020 (“Reply“). 3

II. Discussion and Decision

Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Workers Compensation insurance was primary and thus barred Plaintiff’s claim for No-Fault benefits. Plaintiff opposed Defendant’s motion for summary judgment.

“[P]rimary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-30 [2d Dept 2010], see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]). By moving for summary judgment dismissing Plaintiff’s complaint, Defendant asked this Court to determine the applicability of the Workers’ Compensation Law. In our instant matter, Defendant failed to support its contention regarding the applicability of the Workers’ Compensation Law with admissible evidence. Here, Defendant laid no foundation for the transcript of a recording of assignor’s unsworn statement, in which he admitted he was operating his employer’s vehicle for business purposes prior to the accident (see Motion, Aff. of Michael S. Nightingale, Ex. 2). The police accident report was also inadmissible because it was neither certified (Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2d Dept 2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts (LMS Med. Care v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011]).

Even had Defendant presented admissible evidence, the applicability of the Workers’ Compensation Law to this case must be resolved by the Workers’ Compensation Board (Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] *1 [App Term 2d Dept 2015]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 523761[U] *2 [App Term 2d Dept 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] *2 [App Term 2d Dept 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] *2 [App Term 2d Dept 2010]). While Defendant cited Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] *1 [App Term 2d Dept 2014]) to support its motion, that case further supports the Court’s conclusion. Accordingly, this Court must hold Defendant’s motion in abeyance pending an application to the Workers’ Compensation Board for determination of the parties’ rights under the Workers’ Compensation Law (Compas Med., P.C. v American Tr. Ins. Co., 2015 NY Slip Op 51675[U] *1; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 2014 NY Slip Op 50340[U] *1; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 2011 NY Slip Op 52371[U] *2; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51738[U] *2).

III. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is held in abeyance pending determination of the Workers’ Compensation Board of the applicability of the Workers’ Compensation Law to this case, and it is further

ORDERED that the parties shall advise the Court of the status of any determination of [*3]the Workers’ Compensation Board by June 1, 2021.

This constitutes the DECISION and ORDER of the Court.

Dated: April 30, 2021

Queens County Civil Court

_____________________________

Honorable Wendy Changyong Li, J.C.C.

CV-702516-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

Callinan & Smith, LLP

3361 Park Avenue, Suite 104

Wantagh, NY 11793

Wendy Changyong Li, J.

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated October 1, 2019 (“Motion”) and file stamped by the court on November 7, 2019.1

Plaintiff’s Affirmation in Opposition (“Opposition”) dated and electronically filed with the court on October 5, 2020. 2

Defendant’s Affirmation in Reply (“Reply”) dated and electronically filed with the court on November 16, 2020. 3

II. Background

In a summons and complaint filed on February 7, 2019, Plaintiff sued Defendant [*2]insurance company to recover a total of $5,739.44 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Shantay J.R. from October 2017 to April 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a bill for services provided October 18 to November 2, 2017 (“First Bill“) in the amount of $405.60. The Third cause of action was for recovery of a $333.12 bill for services provided November 3 to 15, 2017 (“Second Bill“). The Fifth cause of action was for recovery of a $130.32 bill for services provided November 17 to 30, 2017 (“Third Bill“). The Seventh cause of action was for recovery of a $80.02 bill for services provided on October 13, 2017 (“Fourth Bill“). The Ninth cause of action was for recovery of a $148.69 bill for services provided on October 11, 2017 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $92.97 bill for services provided on November 15, 2017 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a bill in an unspecified amount for services provided at an unspecified time (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $204.41 bill for services provided on October 11, 2017 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $204.41 bill for services provided on November 15, 2017 (“Ninth Bill“). The Nineteenth cause of action was for recovery of a $2,597.08 bill for services provided from December 26, 2017 to April 12, 2018 (“Tenth Bill“). The Twenty-First cause of action was for recovery of a $1,542.82 bill for services provided from October 13 to December 28, 2017. In a stipulation dated May 15, 2019, the parties amended such Twenty-First cause of action to recover a $593.76 bill for services provided December 1 to 28, 2017 (“Eleventh Bill“) (see Motion, Soriano Aff., Ex. C). This stipulation effectively reduced the amount Plaintiff sought to recover to $4,790.38. The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second causes of action sought recovery of attorneys’ fees for each of the separate bills. Unlike the First Bill, Second Bill, Third Bill, Fourth Bill, Fifth Bill, Sixth Bill, Eighth Bill, and Ninth Bill, the Tenth Bill and Eleventh Bill are composed of several smaller bills for dates of service within the range of service dates alleged in the complaint.

Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed Defendant’s motion for summary judgment. No cross-motion was filed by Plaintiff. An oral argument by both parties was conducted by this Court on April 8, 2021.

III. Discussion

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at [*3]562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]).

Plaintiff’s Thirteenth Cause of Action

As noted above, Plaintiff’s Thirteenth cause of action did not specify the amount of the bill or the dates of service for which the bill was issued. In its answer, Defendant denied knowledge or information sufficient to form a belief as to all the allegations in Plaintiff’s complaint, but asserted as the Third Affirmative Defense that the “complaint fail[ed] to state a proper cause of action as against [the] answering defendant” (Motion, Soriano Aff. Ex. B). Moreover, Plaintiff addressed only ten (10) bills in its Opposition, even though eleven (11) bills were alleged in Plaintiff’s complaint. Here, this Court grants Defendant’s motion for summary judgment dismissing Plaintiff’s Thirteenth cause of action for failure to state a cause of action (CPLR 3211[a][7]; 3212).

Plaintiff’s First, Seventh and Fifteenth Causes of Action

Plaintiff’s First, Seventh and Fifteenth causes of action concerned the First Bill for $405.60, Fourth Bill for $80.02, and Eighth Bill for $204.41. At the outset, the Court notes that Plaintiff alleged in its First cause of action that the amount of its First Bill was $405.60 and that no payment was made by Defendant. Defendant’s supporting evidence, however, indicated that the original First Bill was indeed in the amount of $456.36 and that Defendant’s adjuster, Kurz, allowed $405.60 as of March 1, 2018, leaving a balance of $50.76 (see Aff. Of Soriano, Ex. X and Y). Because Plaintiff only prayed for $405.60 regarding its First Bill in its compliant, this Court will only address Plaintiff’s First Bill in the amount of $405.60, not $456.36. Defendant argued that the foregoing described causes of action should be dismissed because the above three (3) bills were paid.

To support its motion, Defendant presented explanations of benefits dated November 22 and December 28, 2017, in which Defendant acknowledged receiving the three (3) bills on November 13, 2017 (see Motion, Soriano Aff. Ex. T, V, and X). The explanations of benefits dated November 22 and December 28, 2017 (“November and December EOB“), advised Plaintiff that Defendant received the bills but was delaying payment “pending the Examination Under Oath of the above-mentioned claimant” (id.). The explanations of benefits included in the [*4]November and December EOB identified the claimant as J.R. (see id.). Here, the November and December EOB indicated that Defendant sought verification from J.R. who is Plaintiff’s assignor, but not Plaintiff. This Court notes that Defendant allegedly delayed its payment to the above three (3) bills pending EUO on Plaintiff’s assignor, not on Plaintiff itself, based on Defendant’s supporting documents presented in the Motion. Since letters that do not request verification to a plaintiff are insufficient to delay an insurer’s time to pay or deny a claim by such plaintiff (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]), Defendant’s November and December EOB failed to toll Defendant’s time to pay the claims submitted by Plaintiff.

On another note, this Court does not have a reason to believe, based on the evidence presented by Defendant, that the language in Defendant’s November and December EOB, indicating that the delay of payment pending only Plaintiff’s assignor’s EUO, were typographical errors. Here, Defendant did not address this issue in the Motion or in the Reply. Furthermore, Defendant’s explanations of benefits regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and Eleventh Bill noted that payment was being delayed pending an EUO of both claimant (i.e., Plaintiff’s assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ).

While Defendant presented evidence that it paid the First Bill, Fourth Bill, and Eighth Bill on March 1, 2018 (see Motion, Soriano Aff. Ex. ZZ and AAA), Defendant’s failure to toll the time to pay the bills received November 13, 2017, rendered the payments untimely. As such, Defendant failed to meet its initial burden of demonstrating entitlement to dismissal of Plaintiff’s First, Seventh, and Fifteenth causes of action, and Defendant’s motion for summary judgment dismissing these causes of action must be denied (Neptune Med. Care, P.C. v Dairyland Ins. Co., 53 Misc 3d 152[A], 2016 NY Slip Op 51705[U] *1 [App Term 2d Dept 2016]); Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] *2 [App Term 2d Dept 2013], see Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co., 51 Misc 3d 129[A], 2016 NY Slip Op 50389[U] * 1 [App Term 2d Dept 2016]).).

The failure to timely pay these claims precludes Defendant from raising defenses to non-payment of the claims (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646, 647 [2d Dept 2005]). In addition, “[b]y statute, overdue payments earn monthly interest at a rate of two percent and entitle [Plaintiff] to reasonable attorneys’ fees incurred in securing payment of a valid claim” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318, see Ins. Law § 5106[a]; 11 NYCRR §§ 65-3.9[a], 3.10[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278). In the instant matter, although Defendant paid Plaintiff for the First Bill, Fourth Bill and Eighth Bill as alleged in Plaintiff’s First, Seventh and Fifteenth causes of action, such payments were untimely. As a result, Plaintiff is entitled to a statutory interest (11 NYCRR 65-3.9[c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 207-08 [2d Dept 2009]). The amount of Plaintiff’s attorneys’ fees for the First, Seventh and [*5]Fifteenth causes of action is governed by statute and regulation (Insurance Law § 5106[a]; 11 NYCRR §§ 65-3.10[a]; 65-4.6[c] and [d]). Although Plaintiff would have been entitled to summary judgment on statutory interest and attorneys’ fees based on those causes of action (Nyack Hosp. v. Encompass Ins. Co., 23 AD3d 535, 536 [2d Dept 2005]; Optimal Well-Being Chiropractic, P.C. v MVAIC, 46 Misc 3d 134[A], 2014 NY Slip Op 51861[U] * 2 [App Term 2d Dept 2014]) if they were prayed for, here, Plaintiff did not cross move for summary judgment. Consequently, this Court will not award Plaintiff with statutory interest or attorney’s fee based on the motion papers currently before this Court.

Plaintiff’s Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First Causes of Action

Defendant argued that the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based respectively on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill were properly denied because Defendant timely denied the claims based on Plaintiff’s failure to attend duly scheduled EUOs.

In order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]). This may be established with evidence of the actual mailing or by an affidavit of a person “with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694).

To support its motion, Defendant presented the first request letter dated December 11, 2017, scheduling the EUO for January 9, 2018 (see Motion, Soriano Aff., Ex. G). Defendant also presented a letter from Plaintiff’s counsel dated January 3, 2018, which acknowledged receipt of the December 11, 2017 scheduling letter, but objected to the EUO (see Motion, Soriano Aff. Ex. K) on grounds addressed more fully below. Here, such evidence established timely submission of the EUO request by Defendant (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. In addition, after Plaintiff failed to appear for the January 9, 2018 EUO, Defendant timely sent a second scheduling letter dated January 10, 2018, which scheduled the EUO for January 25, 2018 (see Motion, Soriano Aff. Ex. H) (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). The transcripts of the EUO proceedings (see Motion, Soriano Aff. Ex. J and M) constituted adequate proof of Plaintiff’s nonappearance at the EUOs (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1).

In an affidavit appended to the Motion sworn October 31, 2019, Mueller, Defendant’s litigation examiner, established Defendant’s claim processing and standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claims within thirty (30) [*6]days after the last scheduled EUO at which Plaintiff failed to appear (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and two of the bills included within the Eleventh Bill, for which Plaintiff submitted claims to Defendant before Plaintiff’s second non-appearance at an EUO, Defendant presented explanations of benefits, which delayed payment pending EUOs of both claimant (i.e., assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ). Since Defendant timely mailed the EUO request letters to Plaintiff, these explanations of benefits, which requested verification from Plaintiff, tolled Defendant’s time to pay or deny the claims submitted by Plaintiff (Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]). Finally, with respect to the Tenth Bill and a bill included within the Eleventh Bill, which were submitted after Plaintiff’s second non-appearance at an EUO, Defendant presented the explanations of benefits and denial of claim forms which denied the claims based on these bills for Plaintiff’s failure to attend the EUOs (see Motion, Soriano Aff. Ex. LL, MM, NN, OO, PP, QQ, RR, SS, TT, UU,VV, WW, XX, and YY). Therefore, Defendant’s denials of the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill on February 5, 2018 and subsequent to that date were timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Defendant’s evidence that it requested Plaintiff’s appearance at EUOs twice, that Plaintiff failed to appear both times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597).

IV. Plaintiff’s Opposition to Defendant’s Motion

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment.

Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs. In the January 3, 2018 letter, Plaintiff’s counsel objected to Plaintiff’s EUO request based on the ground that the December 11, 2017 request letter from Defendant’s counsel did not identify the dates of service or state objective reasons for requesting an EUO and argued that invoking State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) did “not allow a carrier to obtain any and all information it request[ed]” (Motion, Soriano Aff. Ex. K). Plaintiff’s counsel also notified Defendant’s counsel that Plaintiff required $1,000.00 as reimbursement for loss of wages for attending an EUO.

Here, this Court’s research revealed no case law or statutory or regulatory authority that a letter objecting to an EUO tolls or delays the time for a No-Fault benefit applicant to appear for an EUO. The “insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR § 65-3.5[c]). A letter objecting to an EUO does, however, preserve the No Fault benefit applicant’s objections to the reasonableness of a requested EUO for litigation (see National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]; Starcar Med. Servs. v State Farm Mut. Auto. Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op [*7]51415[U] *1 [App Term 2d Dept 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] *1 [App Term 2d Dept 2016]). In our instant case, regarding the objections Plaintiff’s counsel raised in its January 3, 2018 objection letter and in opposition to the Motion, the Court notes that Defendant’s counsel’s December 11, 2017 EUO request letter indeed indicated the claim number and date of loss which Plaintiff indicated on each claim Plaintiff submitted to Defendant. Moreover, “[a]ny requests by an insurer for additional verification need not be made on any prescribed or particular form” (11 NYCRR § 65-3.5[b]). The No-Fault regulations do not require “an insurer’s notice of scheduling an EUO to specify the reason[s] why the insurer is requiring the EUOs” (City Chiropractic, P.C. v State Farm Ins., 64 Misc 3d 134[A], 2019 NY Slip Op 51102[U] *1 [App Term 2d Dept 2019]; Bronx Chiropractic Care, P.C. v State Farm Ins., 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U] *1 [App Term 2d Dept 2019]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] *1 [App Term 2d Dept 2014], see Longevity Med. Supply, Inc. v Praetorian Ins. Co., 47 Misc 3d 144[A], 2015 NY Slip Op 50685[U] *1 [App Term 2d Dept 2015]). Based on the evidence presented before this Court, it appears that Plaintiff’s EUO request letter dated December 11, 2017 did not cite State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), as Plaintiff’s counsel alleged, and has complied with the requirement that it advise that Plaintiff “will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR § 65-3.5[e]). Further, a request for a flat fee for attending an EUO is improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] *1 [App Term 2d Dept 2016]).

Contrary to Plaintiff’s position, Defendant in fact responded to Plaintiff’s letters objecting to the EUOs (see Motion, Soriano Aff. Ex. L, O and Q) even though no such response is required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2). Finally, Plaintiff cited Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of NY, LLC] (162 AD3d 1471 [4th Dept 2018]), which held that claimants objecting to verification requests were entitled to have an arbitrator to decide controversy, but which had no bearing on the instant matter.

Here, Plaintiff failed to raise factual issues regarding Defendant’s defense of Plaintiff’s failure to attend an EUO. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff’s third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at [*8]757; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]), and that Defendant is entitled to dismissal of Plaintiff’s third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action.

Plaintiff’s Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second Causes of Action

This Court notes that in Plaintiff’s second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, eighteenth, twentieth, and twenty-second causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). As discussed above, this Court finds that Defendant failed to timely pay the claims under the first, seventh and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278). Given that Plaintiff’s first, seventh and fifteenth causes of action survive summary judgment dismissal, the Court dismisses the improperly pleaded second, fourth, sixth, eighth, tenth, twelfth, fourteenth, eighteenth, twentieth, and twenty-second causes of action, but preserves the sixteenth cause of action for attorneys’ fees regarding the first, seventh, and fifteenth causes of action.

V. Decision

As discussed above, although Defendant paid the bills pleaded in Plaintiff’s first, seventh and fifteenth causes of action, Defendant paid those bills untimely and Plaintiff is entitled to recovery attorney’s fees and statutory interest. As a result, Plaintiff’s first, seventh and fifteenth causes of action survive Defendant’s motion for summary judgement to dismiss. Although Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill in its respective eleven (11) causes of action, this Court preserves Plaintiff’s sixteenth cause of action but otherwise dismisses other causes of action regarding attorneys’ fees in order to address the attorney’s fee for the first, seventh, and fifteenth causes of action. Because Plaintiff did not cross-move for summary judgement, here, this Court will not grant Plaintiff with attorney’s fee or statutory interest sua sponte. The rest of Plaintiff’s causes of action are dismissed due to Plaintiff’s failure to attend scheduled EUO.

VI. Order

Accordingly, it is ORDERED that Defendant’s Motion is granted to the extent of dismissing Plaintiff’s second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second causes of action based on Plaintiff’s Second Bill, Third Bill, Fifth Bill, Sixth Bill, Seventh Bill, Ninth Bill, Tenth Bill and Eleventh Bill and the separately pleaded claims for attorneys’ fees, but is otherwise denied, and it is further

ORDERED that Plaintiff’s first, seventh, and fifteenth causes of action to recover the First, Bill, Fourth Bill and Eighth Bill, respectively in the amounts of $405.60, $80.02 and [*9]$204.41, for services provided respectively, from October 18 through November 2, 2017, on October 13, 2017, and on October 11, 2017, shall proceed to trial only on the issue of the amount of statutory interest, and it is further

ORDERED that Plaintiff’s sixteenth cause of action to recover attorneys’ fees shall proceed to trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 29, 2021
Queens County Civil Court
_____________________________________

Honorable Wendy Changyong Li, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, April 20, 2021

APPEARANCES OF COUNSEL

Rivkin Radler, LLP, Uniondale (Donald Kernisant Jr. of counsel), for defendant.

Law Office of Melissa Betancourt, P.C., Brooklyn (Jaime Koo of counsel), for plaintiff.

In this first-party no-fault action, defendant moves pursuant to CPLR 2221 to reargue that portion of this court’s February 28, 2019 decision which reserved the reasonableness of the content of defendant’s request for post-examination under oath (EUO) additional verification as an issue of fact for trial. Defendant contends its request is not subject to judicial review and is valid under the no-fault rules as a matter of law. Defendant claims the court misapprehended the law when it reserved for trial the question of the reasonableness of these additional verification requests. Plaintiff claims defendant failed to establish its outstanding verification defense and that, under the circumstances of this case, the substance of the additional requests was improper and an abuse of the verification process. Plaintiff maintains that defendant’s demand for this type of additional verification placed an improper onus on the provider to supply documents outside the scope of the claim verification process. They claim that defendant’s denial was improper as it was based on a claimed failure to provide some or all of these impermissible requests. Plaintiff further argued that defendant had acquired sufficient information to determine whether to verify or [*2]deny the claim from the provider’s EUO and defendant’s own related investigation. The court notes that defendant interposed a Mallela defense in its answer and that similar demands were made in combined demands served upon plaintiff.

The decision of whether to grant reargument is within the sound discretion of the motion court (see Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819, 820 [2d Dept 2011]; Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773 [2d Dept 2019]; Barnett v Smith, 64 AD3d 669 [2d Dept 2009]). A motion for reargument “ ’is not designed to provide an unsuccessful party with successive opportunities to{**72 Misc 3d at 344} reargue issues previously decided, or to present arguments different from those originally presented’ ” (Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820, quoting McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]; Jaspar Holdings, LLC v Gotham Trading Partners #1, LLC, 186 AD3d 582 [2d Dept 2020]). The movant must make an effort to demonstrate in what manner the court, in rendering the original determination, overlooked or misapprehended the relevant facts or law (see Nicolia v Nicolia, 84 AD3d 1327 [2d Dept 2011]; Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820).

“Once the court reviews the merits of the movant’s arguments, the court, by doing so, has granted reargument, and must determine whether to adhere to the original determination, or alter the original determination. If the movant has alleged that the original determination overlooked or misapprehended the relevant facts or law, and the court disagrees, it will adhere to the original determination” (Ahmed v Pannone, 116 AD3d 802, 810-811 [2d Dept 2014, Hinds-Radix, J., dissenting] [citation omitted]).

Upon review of the parties’ submissions, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied. Defendant failed to demonstrate that the court overlooked or misapprehended relevant facts or misapplied governing principles of law (see McGill v Goldman, 261 AD2d 593 [2d Dept 1999]). Accordingly, the court adheres to its original decision wherein it ruled that the reasonableness of defendant’s post-EUO request for additional verification remained an issue of fact for trial.

As an initial matter, this court notes that defendant’s post-EUO request for additional verification is the matter at issue herein. The court emphasizes this because in the instant motion, paragraph three of defendant’s affirmation and much of its supporting legal authority pertain to the issue of an EUO no-show, a matter that at no point was in dispute or an issue in the underlying motion. Conversely, at the outset of defendant’s affirmation in support of the underlying summary judgment motion, defendant argued for dismissal of the complaint “because Plaintiff failed to provide GEICO with post examination under oath (‘EUO’) verification that was timely requested pursuant to 11 NYCRR 65-3.5″ (emphasis added). Further, the affidavits in support of defendant’s underlying motion also relate to the issue of outstanding additional verification.{**72 Misc 3d at 345} Likewise, the arguments in plaintiff’s opposition to both the underlying and instant motions apply to outstanding additional verification requests. No other issue is properly before the court for reargument. It is also noted that reargument is not sought as to that portion of the decision wherein the court granted each party summary judgment to the extent that they established their prima facie case. Therefore, the court’s ensuing decision and analysis will discuss the issue of the outstanding post-EUO verification request only.

Defendant commenced an investigation into Arthur Avenue Medical Services because it claimed that it identified several facts and circumstances that called into question the provider’s eligibility to collect no-fault benefits. Defendant specifically investigated whether Arthur Avenue was truly owned and controlled by Jaime G. Gutierrez, M.D., or was actually owned and [*3]controlled by laypersons. The investigation included but was not limited to a review and analysis of claims files, public records, previous investigations into other entities that operate out of the same location, previous investigations into other entities where Dr. Gutierrez rendered services and billing submissions submitted to the carrier for reimbursement. Submitted with defendant’s original motion is the affidavit of Glenn Simmons, an investigator with GEICO’s Special Investigations Unit, which sets forth the extent of the investigation and conclusions arrived, namely that: patients treated at Arthur Avenue were referred to that provider by Dr. Gutierrez (who operates at the same location); Dr. Gutierrez provided services on behalf of Jaime G. Gutierrez, M.D., then referred the same patients to Arthur Avenue for additional medical treatment; various doctors performed services, yet the billing submissions name Dr. Gutierrez as the only service provider; improper performance of nerve testing including omissions of necessary steps in the administration of the tests; absence of variation in the pattern of treatment and use of predetermined treatment protocol, etc. Mr. Simmons states that the investigation uncovered indications that laypersons were improperly influencing the manner and method of treatment provided to claimants, that Arthur Avenue was rendering services pursuant to a predetermined treatment protocol designed to maximize profit and that Arthur Avenue’s charges may be the result of improper self-referrals.

In addition to the investigation, it is undisputed that on March 9, 2017, Jaime Gutierrez, M.D., appeared on behalf of{**72 Misc 3d at 346} Arthur Avenue in full compliance with defendant’s EUO request. The court’s review of the EUO transcript annexed to the underlying motion reveals that the EUO took place over the course of five hours with questioning involving medical treatment as well as the provider’s licensing and corporate structure. Dr. Gutierrez’s testimony lent further support to the concerns over fraud previously investigated by defendant, including whether Arthur Avenue was a party to unlawful financial relationships with unlicensed individuals and entities, whether laypersons were improperly influencing the manner and methods of treatment provided to GEICO’s insureds and whether Arthur Avenue is truly owned and controlled by Dr. Gutierrez or by laypersons all in contravention to New York law. Defendant claims that its request for additional verification was based on the information obtained during the EUO and that the EUO raised questions regarding improper corporate structure and fee sharing. Thus, by letter dated March 20, 2017, defendant requested that plaintiff provide the following additional verification:

“1. A complete copy of the lease agreements, if any, entered into by Arthur Medical, including any accompanying Schedules, Documents, Floor Plans or Riders, regarding the following premises:

“• 764 Elmont Road, Elmont

“• 293 East 53rd Street, Brooklyn

“• 2363 Ralph Avenue, Brooklyn

“• 9004 Merrick Boulevard, Jamaica

“• 2625 Atlantic Avenue, Brooklyn

“2. [*4]All article[s] of incorporation, including but not limited to any By-Laws for Arthur Medical;

“3. A complete copy of the billing agreement entered between Arthur Medical and Collection Services, Inc./Inna Lyubronestkaya;

“4. All invoices between Collection Services, Inc./Inna Lyubronestkaya and Arthur Medical;

“5. All W-2, 1099, and/or K-1 forms from Arthur Medical, including, but not limited to, any documentation regarding the employee status or relationship between Arthur Medical and any person rendering services on behalf of Arthur Medical;

“6. All quarterly payroll and tax returns (IRS Form 941 and NYS Form 45-MN) filed from 2016 to present by or on behalf of Arthur Medical;{**72 Misc 3d at 347}

“7. Opening/signatory authorization documents for the Arthur Medical Chase bank account;

“8. Copies of all bank statements and cancelled checks for Arthur Medical from 2016 to present;

“• These include, but is not to be limited to, all checks made to: (i) Collection Services, In[c]./Inna; (ii) Osvaldo; (iii) the physician assistant; and (iv) all rent payments.

“9. All documents relating to Arthur Avenue’s corporate card from 2016 to present;

“10. General ledgers for Arthur Medical from 2016 to present;

“11. Proof of payment of the P.O. Box utilized by Arthur Medical;

“12. All licenses to practice medicine in New York for Dr. Gutierrez as well as any certification to render EMG/NCV testing; and

“13. Proof of purchase of the medical equipment utilized by Arthur Medical, including but not limited to the EMG/NCV machine.”

Relevant to the matter herein, 11 NYCRR 65-3.5 (b) of the No-Fault Law provides, “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.” This section authorizes an insurer, upon receiving the written proof of claim or written notice of its substantial equivalent, to request “any additional verification required . . . to establish proof of claim . . . within 15 business days of receipt of the prescribed verification forms” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53 [2d Dept 2012]). Additionally, section 65-3.2 (c) dictates that insurance carriers “not demand verification of facts unless there are good reasons to do so. When verification of facts is necessary, it should be done as expeditiously as possible” (11 NYCRR 65-3.2 [c]). Indeed, underlying the enactment of the no-fault regulations is the principle of expediency in the processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 285 [1997]). “No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 285).{**72 Misc 3d at 348}

In the context of no-fault reimbursement, to be eligible for benefits, a medical services corporation must be owned by a physician who practices medicine through the corporation (Business Corporation Law § 1508) and may not bill for medical services provided by physicians not employed by the corporation, such as independent contractors (11 NYCRR 65-3.11 [a]). Further, the corporation may not share professional service fees with third parties, such as referral fees (8 NYCRR 29.1 [b] [4]). It is well established that New York law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16 [a]). As relevant herein, the underlying policy concern in the medical field is “that the so-called ‘corporate practice of medicine’ could create ethical conflicts and undermine the quality of care afforded to patients” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], quoting State Farm Mut. Auto. Ins. Co. v Mallela, 372 F3d 500, 503 [2d Cir 2004]).

In the seminal case, State Farm Mut. Auto. Ins. Co. v Mallela, the Court of Appeals held that medical providers that fail to meet the New York State licensing requirements are not eligible for no-fault reimbursement (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

“A successful Mallela defense permits an insurer to avoid paying an otherwise valid no-fault claims [sic] because the provider is not eligible to obtain payment of no-fault benefits because the entity providing the services is owned or significantly controlled by persons who are not licensed to practice the profession for which the professional business entity was formed” (Brownsville Advance Med., P.C. v Country-Wide Ins. Co., 33 Misc 3d 1236[A], 2011 NY Slip Op 52255[U], *3 [Nassau Dist Ct 2011] [citations omitted]).

An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828 [2d Dept 2017]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the{**72 Misc 3d at 349} claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]).

With regards to Mallela related documents, the case law clearly lays out a “good cause” [*6]standard which a carrier must demonstrate in order to investigate licensing violations. In its Mallela decision, the Court of Appeals emphasized the Superintendent’s regulation permitting carriers to withhold reimbursement from fraudulently licensed medical corporations:

“on the strength of this regulation, carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law. Defendants argue that the carriers will turn this investigatory privilege into a vehicle for delay and recalcitrance.

“The regulatory scheme, however, does not permit abuse of the truth-seeking opportunity that 11 NYCRR 65-3.16 (a) (12) authorizes. Indeed, the Superintendent’s regulations themselves provide for agency oversight of carriers, and demand that carriers delay the payment of claims to pursue investigations solely for good cause (see 11 NYCRR 65-3.2 [c]). In the licensing context, carriers will be unable to show ‘good cause’ unless they can demonstrate behavior tantamount to fraud. Technical violations will not do. For example, a failure to hold an annual meeting, pay corporate filing fees or submit otherwise acceptable paperwork on time will not rise to the level of fraud. We expect, and the Legislature surely intended, vigorous enforcement action by the Superintendent against any carrier that uses the licensing-requirement regulation to withhold or obstruct reimbursements to nonfraudulent health care providers” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 321-322 [emphasis added]).

In the recently decided Andrew Carothers, M.D., P.C. v Progressive Ins. Co.,^[FN*] the Court of Appeals upheld its decision in Mallela and added that

“[a] corporate practice that shows ‘willful and material failure to abide by’ licensing and incorporation statutes (Mallela, 4 NY3d at 321) may support{**72 Misc 3d at 350} a finding that the provider is not an eligible recipient of reimbursement under 11 NYCRR 65-3.16 (a) (12) without meeting the traditional elements of common-law fraud” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 405 [2019]).

In cases involving Mallela-type concerns, courts of competent jurisdiction have reviewed the reasonableness of verification requests similar to those at issue. In Island Chiropractic Testing, P.C. v Nationwide Ins. Co., the court held that “verification requests, seeking inter alia, copies of ‘sale of shares or transfer of ownership (and) lease agreements’ are impermissible and improper requests, and cannot support the finding of a denial ‘toll’ which would permit an award of summary judgment to defendant” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A], 2012 NY Slip Op 51001[U], *2 [Suffolk Dist Ct 2012]). “Permitting an insurer to obtain written documents such as tax returns, incorporation agreements or leases regarding a potential fraudulent incorporation ‘[Mallela]’ defense as part of the verification process defeats the stated policy and purpose of the no-fault law and carries with it the potential for abuse” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2). In underlining that denying use of such requests does not prejudice the carrier, the court noted that as “the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 2012 NY Slip Op 51001[U], *2).

Similarly, the court in Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. ruled that “Mallela type material cannot be obtained as verification of the claim. Requesting an [sic] [*7]provider to produce voluminous corporate records in order to obtain payment of a no-fault claim is an abuse of the EUO and the entire verification process” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 35 Misc 3d 1213[A], 2012 NY Slip Op 50676[U], *6 [Nassau Dist Ct 2012], mod 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). This court notes that on appeal, the Appellate Term dismissed the plaintiff’s case based on an EUO no-show and therefore did not rule on the issue of the verification request content and reasonableness (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2013 NY Slip Op 52225[U]).

By comparison, in the context of litigation wherein a carrier asserts a Mallela defense, courts have generally ruled on the{**72 Misc 3d at 351} propriety of pretrial discovery demands for corporate documents and information. The Appellate Term has consistently held that a plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (Marino v County of Nassau, 16 AD3d 628 [2d Dept 2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Clinton Place Med., P.C. v USAA Cas. Ins. Co., 56 Misc 3d 136[A], 2017 NY Slip Op 51012[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Charles Deng Acupuncture, P.C. v United Servs. Auto. Assn., 58 Misc 3d 135[A], 2017 NY Slip Op 51810[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Further, discovery demands concerning a Mallela defense are granted as long as there are sufficient allegations supporting such a defense (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; BS Kings County Med., P.C. v State Farm Mut. Auto Ins. Co., 68 Misc 3d 879 [Civ Ct, Bronx County 2020]). However, it is proper for a court to deny discovery demands seeking information that is “irrelevant, overly broad, or burdensome” (Pesce v Fernandez, 144 AD3d 653, 655 [2d Dept 2016]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [2008]).

Based on the foregoing, the court adheres to its decision on defendant’s summary judgment motion. To prevail on summary judgment, the moving party must provide sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant failed to establish its affirmative defense of outstanding verification in its underlying motion. The reasonableness of defendant’s post-EUO additional verification request remains an issue of fact for trial.

Defendant’s assertion that this court lacks the authority to preserve the reasonableness of additional verification requests for trial conflicts with prevailing no-fault regulations and case law. Both the Mallela and Carothers Courts stressed principles of expediency and good cause in investigations of fraudulent licensing and improper fee sharing and acknowledged that abuse of the verification process may exist. At no time did the{**72 Misc 3d at 352} Court of Appeals state that carriers have unfettered authority in the extent of these investigations. Although there is a lack of Appellate Term authority on this issue, courts of competent jurisdiction have reviewed the content of verification requests in cases similar to the instant matter and have ruled that comparable requests fall outside of the verification scheme. It is the court’s view that it has authority to review additional verification requests to ensure that parties comply with no-fault claim verification procedures. Thus, the question of whether the additional verification was reasonable and necessary for defendant to verify or to deny the claim, based on fraud, is within the court’s authority to determine.

In this matter, the provider fully complied with defendant’s EUO request. Defendant obtained substantial Mallela-type information relevant to its suspicion of fraud during the course of the five-hour EUO, that included a multitude of questions related to corporate structure. Defendant also conducted its own investigation into plaintiff’s billing and medical practices as laid out in the affidavit of its special unit investigator. This inquiry and investigation were well within the guidelines of the No-Fault Law and adhered to the “good cause” requirement as set forth by Mallela and Carothers. However, defendant’s subsequent request for additional information through use of the no-fault claim verification process may be unreasonable and constitute an investigation that goes beyond the purview of the no-fault reimbursement system. “New York’s no-fault automobile insurance system is designed to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 562 [2008] [internal quotation marks omitted]). The court emphasizes the limited purpose of the no-fault system: “Verification is permitted to ‘verify the claim.‘ 11 NYCRR 65-3.5(c)” (Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U], *4 [emphasis added]). A claim is either verified or it is not. Had defendant suspected fraud after the five-hour EUO, defendant may have denied the claim based on fraudulent incorporation at that point in time. Furthermore, in the context of verification of a claim, some of the requested information may be privileged or categorized as improper pre-litigation discovery. Thus, the propriety of the additional verification request upon which the defendant denied the claim remains an issue of fact for trial.{**72 Misc 3d at 353}

Notwithstanding the above, the court’s determination to adhere to its original decision is also based on defendant’s failure to provide the court with a complete record in support of its original request for summary judgment based on its outstanding verification defense. Defendant acknowledges in a footnote in its underlying motion that it received “some” of the requested documents from plaintiff. However, defendant does not identify what plaintiff provided and what remained outstanding from its comprehensive list of post-EUO verification requests, which includes documents subject to privilege and confidentiality rules. The court was unable to rule on the issue it preserved for trial in the absence of these relevant facts. Therefore, in accordance with the original decision, this defense remains an issue of fact for trial.

Finally, the court emphasizes that its decision should not be construed as a substantive ruling on the merit of defendant’s Mallela defense. Rather, the court’s decision is based on its adherence to claim verification procedures as laid out in the no-fault rules. The court is well versed in the public policy concerns underlying the no-fault regulations which govern medical provider licensing and prohibit fee sharing with nonmedical professionals. The prevalence of this fraud provides an insurance carrier with a choice of legal recourse including asserting a non-precludable Mallela defense or a defense related to licensing ineligibility within no-fault litigation, standing to bring a civil action against a medical provider based on fraud or filing a criminal complaint (see Travelers Indem. Co. v Parisien, 70 Misc 3d 1203[A], 2020 NY Slip Op 51561[U] [Sup Ct, Suffolk County 2020]; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676[U]). However, in light of the aforementioned case law and principles, the court reaffirms that the propriety of the post-EUO request for additional verification is subject to the court’s review.

Based on the foregoing, defendant’s motion for leave to reargue is granted, and upon reargument, defendant’s motion is denied.

Footnotes

Footnote *:In Andrew Carothers, M.D., P.C. v Progressive Ins. Co., the Court of Appeals modified the definition of fraud previously laid out in Mallela.

CV-704182-19/QU

Plaintiff’s Counsel:

Gitelis Law Firm, P.C.

2004 Coney Island Avenue, 2d Floor

Brooklyn, NY 11223

Defendant’s Counsel:

Hollander Legal Group, P.C.

105 Maxess Road, Suite S128

Melville, NY 11747

 Papers

The following papers were read on Defendant’s motion for summary judgment seeking an order dismissing Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion seeking summary judgment and Affirmation 1In Support dated July 29, 2019 (“Motion“) and file stamped by the court on August 7, 2019.

Plaintiff’s Affirmation in Opposition dated September 25, 2019 (“Opposition“). 2

Defendant’s Affirmation in Reply dated February 4, 2020 (“Reply“) 3and electronically filed with the court June 8, 2020.

Background

In a summons and complaint filed on March 1, 2019, Plaintiff sued Defendant insurance company to recover $9,609.62 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Seleznyov from February to July 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO”), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed the motion.

Discussion and Decision

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

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance [*2]policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]).

In order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]). This may be established with evidence of the actual mailing or by an affidavit of a person “with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d at 694). To support its motion, Defendant presented the first demand letter dated April 5, 2018, scheduling the EUO for May 1, 2018, (see Motion, Aff. of Drapan, Ex. X). Further, in an affidavit sworn July 29, 2019, Hollander, president of Defendant’s law firm, attested to the standard office mailing procedures for sending EUO request letters (see Motion, Drapan Aff. Ex. GG), which established timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]). Although Seleznyov failed to appear for the EUO on May 1, 2018 with advanced notice, he appeared with counsel for the EUO rescheduled for May 30, 2018. Seleznyov’s counsel had a conflicting appointment, however, which did not allow the EUO to be completed (see Motion, Drapan Aff. Ex. AA). While a mutually agreed rescheduling prior to an EUO does not constitute a failure to appear (Apple Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] *1 [App Term 2d Dept 2015]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 2013 NY Slip Op 52005[U] *1; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] * 2 [App Term 2d Dept 2012]), there is no evidence of such agreement despite Defendant’s acknowledgement that the law firm representing Seleznyov contacted Defendant’s counsel the day before the EUO scheduled on May 1, 2018, to advise that Seleznyov would not appear. Defendant also presented a letter dated June 5, 2018, which scheduled the continued EUO for June 26, 2018 (see Motion, Drapan Aff. Ex. BB), and, a letter dated June 28, 2018, which scheduled the continued EUO for July 25, 2018 (see Motion, Drapan Aff. Ex. DD), as well as a follow up letter dated June 29, 2018 (see Motion, Drapan Aff. Ex EE). These subsequent EUO scheduling letters timely scheduled the continued EUOs after each time Seleznyov failed to appear for the respective scheduled EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). The transcripts of the EUO proceedings (see Motion, Drapan Aff. Ex. Y, CC, FF) constituted adequate proof of Seleznyov’s nonappearance at the EUOs (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Although Seleznyov appeared for one EUO, Defendant’s evidence still established Seleznyov’s failure to appear for an initial EUO on May 1, 2018, and a [*3]follow-up EUOs on June 26 and July 25, 2018, to prove Plaintiff’s failure of a condition precedent to Defendant’s duty to pay the claims (see Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 56 Misc 3d 132[A], 2017 NY Slip Op 50935[U] *2 [App Term 2d Dept 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] *2 [App Term 2d Dept 2013]).

The affidavits of Mclendon, Operations Manager of Defendant’s agent for processing incoming and outgoing mail, established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claims within 30 days after the last scheduled EUO at which Seleznyov failed to appear (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on August 3, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Defendant’s evidence that it requested Seleznyov’s appearance at the continued EUOs twice after the EUO for which he did appear and testify, that he failed to appear both times for the scheduled continued EUOs and that Defendant denied Plaintiff’s claim on such basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). Finally, Defendant’s evidence demonstrated that it paid a bill from Plaintiff that Defendant received on March 30, 2018 (see Motion, Drapan Aff. Ex K).

In opposition, Plaintiff presented no contrary evidence, but merely argued generally that Defendant’s evidence was inadmissible. In the instant matter, Defendant denied Plaintiff’s claims on the ground that Plaintiff assignor failed to attend scheduled EUO. In its Motion, Defendant presented various affidavits documenting Plaintiff assignor’s failure to attend the scheduled respective continued EUOs. This Court finds such affidavits admissible. Defendant also presented affidavits establishing its timely denial of Plaintiff’s claims, and this Court finds such affidavits also admissible. If Plaintiff were to present affidavit indicating that Plaintiff assignor indeed had attended such scheduled respective continued EUOs or that Plaintiff did not timely receive Defendant’s denial of claims, a factual issue would have been raised warranting a trial. Here, Plaintiff did not. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), and that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]). Although Plaintiff also argued without presenting any evidence, that Defendant failed to establish that its denials of claim were issued in duplicate, Mclerndon’s affidavits were sufficient to establish that Defendant’s explanations of review and denial of claim forms were submitted in duplicate (Lenox Hill Radiology, P.C. v Redland Ins. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52263[U] [*4]*1 [App Term 2d Dept 2012]). In any event, the failure to present a denial of claim in duplicate, standing alone, is not fatal to Defendant’s defense (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term 2d Dept 2013]). Finally, in light of the Court’s dismissal of Plaintiff’s complaint, consideration of Defendant’s evidence that Plaintiff’s claims exceeded the applicable fee schedules is academic.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted and Plaintiff’s complaint is dismissed, and it is further

ORDERED that the clerk is directed to dispose of this index number for all purposes.

This constitutes the DECISION and ORDER of the Court.

Dated: April 16, 2021

Queens County Civil Court

Honorable Li, J.C.C.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This constitutes the Decision and Order of the Court.

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

Footnotes

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

CV-706933-20/RI

Sanders Barshay Grossman, LLC for Plaintiff;

Burke, Conway & Stiefeld For Defendant

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

Papers Numbered

Amended Notice of Motion and Affirmation/Affidavit annexed 1-2

Affirmation in Opposition 3

Affirmation in Reply 4

Upon the foregoing cited papers, the decision on Defendant’s Motion to Dismiss is as follows:

Plaintiff, Happy Apple Medical Services, PC (hereinafter, “Plaintiff”), as assignee of Mario Eustache (hereinafter, “Assignor”), commenced this action against the defendant, Liberty Mutual Insurance Company (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR 3211(a)(2) dismissing Plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff submitted opposition to Defendant’s motion, and Defendant submitted an affirmation in reply. The motion was deemed submitted and decision was reserved.

Defendant moves to dismiss Plaintiff’s complaint on the grounds that this Court lacks subject matter jurisdiction over the underlying causes of action. Specifically, Defendant argues that as the New York State Workers’ Compensation Board (the “Board”) has found the underlying action to be a work-related accident, the Board has exclusive jurisdiction over all [*2]workers’ compensation claims. Defendant argues this claim is not covered under its policy.^[FN1] Therefore, Defendant argues, the complaint must be dismissed because the underlying accident was determined by the Board to be work-related.

In opposition, Plaintiff argues that Defendant’s policy exclusion defense should be precluded because the defense was not timely raised by a denial of the bill within 30 days of the submission of the claim (see Ins. Law 5106(a); 11 NYCRR 65-3.8(c)). The Plaintiff argues that there are only four exceptions to preclusion all involving “lack of insurance coverage” and since the exclusion due to a work-related injury is not one of them, Defendant’s motion should fail. The Plaintiff does not make any argument regarding the subject matter jurisdiction of the Court.

Discussion

Defendant is correct in noting that the Board has jurisdiction over the determination of whether an accident occurred within the scope of a claimant’s employment (O’Rourke v Long, 41 NY2d 219, 228 [1976]). The Court of Appeals has ruled that the Board has “the primary jurisdiction, but not necessarily exclusive jurisdiction, in factual contexts concerning compensability.” (Liss v Trans Auto Sys, 68 NY2d 15, 20 [1986]). “When the question is purely one of fact, the Workers’ Compensation Board has exclusive jurisdiction over the issue and it is only when the issue involves statutory construction that the trial court may hear the issue” (Gyory v Radgowsk, 89 AD2d 867, 869 [2d Dept 1982]). Therefore, it is outside this Court’s jurisdiction to make a factual determination as to the eligibility of a claimant for workers’ compensation benefits.

However, Plaintiff has not asked this Court to make such a determination. The causes of action before this Court seek monetary damages relating to unpaid invoices and attorneys’ fees in accordance with a no-fault insurance policy allegedly issued by Defendant to Assignor. This determination is squarely within the Civil Court’s jurisdiction (NY City Civ Ct Act § 202). The fact that the Assignor’s accident was deemed to have been work-related does not divest the Civil Court of its jurisdiction. Rather the Board’s determination is relevant to the extent that “workers’ compensation benefits serve as an offset against first-party benefits payable under no-fault as compensation for ‘basic economic loss'” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [2d Dept 1991]; Ins. Law § 5102(b)(2)).

Defendant’s motion mischaracterizes the underlying action as a claim for payment under a workers’ compensation insurance policy, rather than, as pleaded, for payment of benefits pursuant to a no-fault insurance policy. Therein lies the error of Defendant’s argument. The law provides the Defendant with a valid defense to such a Civil Court action — an exclusion from the no-fault insurance policy from payment in instances of a work-related accident.

The Insurance Law and corresponding regulations require the service of a timely denial of the payment of the bill upon the health care provider within 30 days to exercise the exclusion (Ins. Law § 5106(a); 11 NYCRR 65-3.8(c)). Defendant has failed not only to present any policy documentation but also a denial form, timely or otherwise. As such, that issue is not before the [*3]Court. Any discussion or argument pertaining to Defendant’s denial and issues of preclusion are not applicable to the current motion.

The sole question before this Court in the instant motion is whether the Court has subject matter jurisdiction. The matter before the Court is not a determination of a workers’ compensation claim, but rather a claim for reimbursement under a no-fault automobile insurance policy. The availability of workers’ compensation benefits can serve as a defense to the No-Fault claim, but it does not invalidate the Civil Court’s subject matter jurisdiction. This Court has jurisdiction to adjudicate the causes of action as it relates to the reimbursement and defenses under the no-fault insurance policy. The Defendant’s motion makes no other argument to justify the dismissal of the complaint other than alleging a lack of subject matter jurisdiction of the no-fault insurance claim.

Accordingly, the Defendant’s motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 13, 2021

Staten Island, New York

Hon. Robert J. Helbock, Jr.

Judge, Civil Court

Footnotes

Footnote 1:While New York law permits No-Fault policies to exclude payment for treatment of work-related injuries (11 NYCRR 65-3.16), the Defendant did not offer a copy of the no-fault insurance contract containing such an exclusion. However, the Court assumes the exclusion applies as a matter of the regular industry practice. However, this assumption, without admissible evidence, does not factor into the Court’s decision.

CV-724222-19/QU

Plaintiff’s Counsel:
Gabriel & Shapiro, L.L.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Former Counsel:
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 420
Melville, New York, 11747

Defendant’s Current Counsel:
Callinan & Smith, LLP
3361 Park Avenue, Suite 104
Wantagh, NY 11793

Papers

The following papers were read on Defendant’s motion and Plaintiff’s cross-motion for summary judgment:

PapersNumbered

Defendant’s Notice of Motion seeking summary judgment and Supporting1

Affirmation dated as of January 10, 2020 (“Motion”) and entered by the court on

February 3, 2020.

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation2

in Support dated as of October 16, 2020 (“Cross-Motion”) and electronically filed

with the court on October 19, 2020.

Defendant’s Affirmation to Cross-Motion dated as of October 20, 2020 (“Reply”) and

electronically filed with the court on October 20, 2020.3

Background

In a summons and complaint filed on October 24, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,034.58 in unpaid first party No-Fault benefits for chiropractic services provided to Plaintiff’s assignor Martinez throughout 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a $92.48 bill for services provided May 8 to 9, 2018 (“First Bill“). The Third cause of action was for recovery of a $458.16 bill for services provided June 18 to July 11, 2018 (“Second Bill“). The Fifth cause of action was for recovery of a $285.94 bill for services provided April 2 to 13, 2018 (“Third Bill“). The Seventh cause of action was for recovery of a $226.96 bill for services provided July 17 to 27, 2018 (“Fourth Bill“). The Ninth cause of action was for recovery of a $138.72 bill for services provided September 6 to 14, 2018 (“Fifth Bill“). The Eleventh cause of action was for recovery of a $231.20 bill for services provided August 10 to 27, 2018 (“Sixth Bill“). The Thirteenth cause of action was for recovery of a $92.48 bill for services provided August 2 to 3, 2018 (“Seventh Bill“). The Fifteenth cause of action was for recovery of a $369.92 bill for services provided April 17 to May 2, 2018 (“Eighth Bill“). The Seventeenth cause of action was for recovery of a $138.72 bill for services provided June 11 to 15, 2018 (“Ninth Bill“). The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, and Eighteenth causes of action sought recovery of attorneys’ fees for each of the separate bills.

Defendant now moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“) and failed to timely submit a claim to Defendant, or alternatively for judgment that Defendant established its prima facie case. Plaintiff cross-moved for summary judgment on its claims against Defendant. After [*2]various adjournments, the motion papers were deemed to be fully submitted and subsequently assigned to this Court during the coronavirus pandemic. An oral argument by both parties was conducted by this Court on March 17, 2021.

Discussion and Decision

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82). Noncompliance with an insurance policy provision requiring disclosure through an examination under oath is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Regarding notification of the EUO, the insurer must present proof of the actual mailing or its standard office practices that ensure notices “are properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016]; Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2d Dept 2015]). An insurer must request verification within ten (10) days after receipt of claim (11 NYCRR § 65-3.5[a], see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2d Dept 2011]).

In the instant matter, Plaintiff alleged that Defendant failed to timely pay or deny nine (9) separate bills for chiropractic services provided from April to September 2018. Defendant denied receiving Plaintiff’s Second Bill. With respect to the eight (8) remaining bills, Defendant maintained that it properly denied the claims based on those bills because Plaintiff failed to attend EUOs.

Plaintiff’s Second Bill/Plaintiff’s Third Cause of Action

Regarding Plaintiff’s Second Bill in the amount of $458.16 for chiropractic services rendered from June 18 to July 11, 2018 that Plaintiff prayed for in its third cause of action, Defendant denied receiving the bill. Defendant presented an affidavit sworn January 7, 2020, in which Overly, an employee of IDS Property Casualty Insurance Company, which works for Defendant, attested in detail to Defendant’s office practices and procedures for processing claims it received and that a records search revealed no bill for $458.16 for service performed from June [*3]18 to July 11, 2018. Here, such evidence sufficiently demonstrated that Defendant did not receive Plaintiff’s claim in the amount of $458.16 (Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] *1 [App Term 2d Dept 2013]; Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158[A], 2012 NY Slip Op 50431[U] *3 [App Term 2d Dept 2012]). In opposition, Plaintiff presented the affirmation of Moroff, a partner in Plaintiff’s law firm, who attested to the firm’s standard procedures for processing bills it received and submitting them to the insurer for payment (see Cross-Motion, Aff, of John E. Fagan Ex. B). An affidavit of mailing attached to Moroff’s affirmation indicated that the bill was mailed on July 24, 2018. Contrary to Defendant’s contention, Plaintiff properly used an affirmation from Moroff, instead of an affidavit because Moroff is not a party to this action (see Finger v Saal, 56 AD3d 606, 607 [2d Dept 2008]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466, 466 [2d Dept 2004]; Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] *1 [App Term 2d Dept 2012]). Here, Plaintiff has raised factual issues regarding its timely submission of the Second Bill (BAB Nuclear Radiology, P.C. v Mercury Cas. Co., 50 Misc 3d 147[A]; 2016 NY Slip Op 50318[U] *1 [App Term 2d Dept 2016]; Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] *1 [App. Term 2d Dept 2016]), and such issue must be resolved at trial.

Plaintiff’s Third Bill and Eighth Bill/Plaintiff’s Fifth and Fifteenth Causes of Action

Defendant acknowledged receiving Plaintiff’s Third Bill in the amount of $285.94, on May 12, 2018, and Plaintiff’s Eighth Bill in the amount of $369.92, on June 4, 2018, which respectively constituted Plaintiff’s fifth and fifteenth causes of action. Although Defendant sent two separate explanations of benefits dated May 24, 2018 and June 6, 2018, which advised Plaintiff that payment was being delayed pending an EUO, this Court finds that these explanations of benefit are insufficient to delay payment or denial because they did not request verification (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [2d Dept 1999]; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]). Therefore, regarding the Third Bill and Eighth Bill respectively received on May 12 and June 4, 2018, Defendant’s denial of Plaintiff’s claims based on these bills on July 27, 2018 was untimely (Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90, 92 [App Term 2d Dept 2012]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046-47 [2d Dept 2009]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649 *2). As a result, Defendant is not entitled to a judgment dismissing Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill respectively.

Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill/

Regarding the remaining six (6) bills, i.e., Plaintiff first, fourth, fifth, six, seventh and ninth bills, which constituted Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, Defendant presented an affidavit sworn January 10, 2020, in which Callinan, a partner in Defendant’s counsel’s office, attested to the standard mailing procedures for requests for EUOs and that counsel’s office mailed a request to Sayyed and his attorney on June 5, 2018, scheduling an EUO for June 21, 2017 (see Motion, Aff. of Michael Soriano, Ex. E). Defendant also presented a letter from Plaintiff’s counsel dated June 18, 2018, which acknowledged receipt of the June 5, 2018 scheduling letter (see Motion, Soriano Aff. Ex. K). Here, such evidence established Defendant’s timely submission of the EUO request (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1. The transcripts of the EUO proceedings (see Motion, Soriano Aff., Ex. I and J) further constituted adequate proof of Sayyed’s nonappearance (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). In addition, Defendant established the timeliness of the second EUO request letter dated June 26, 2018, which scheduled the EUO for July 13, 2018 (see Motion, Soriano Aff. Ex. F), after Sayyed failed to attend the first EUO (11 NYCRR § 65-3.6[b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home, 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). Since Defendant received the remaining bills after the request for EUO was sent to Plaintiff, the EUO request letter dated June 5, 2018 tolled Defendant’s time to pay or deny the claims (Sharp View Diagnostic Imaging, P.C. v Esurance, 57 Misc 3d 146[A], 2017 NY Slip Op 51466[U] *1 [App Term 2d Dept 2017]; Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U] *2).

Overly’s affidavit established Defendant’s standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff’s claim within thirty (30) days after the second scheduled EUO (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Tam Med. Supply Corp. v 21st Century Ins. Co., 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 2017 NY Slip Op 50028[U] *1). Therefore, Defendant’s denial of these claims on July 27, 2018 was timely (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757, see 11 NYCRR §§ 65-3.5[a]; 65-3.5[a]). Here, Defendant’s evidence that it twice requested EUOs from Sayyed, that he failed to appear both times and that Defendant denied Plaintiff’s claim on that basis satisfied Defendant’s burden of establishing a material policy breach by Plaintiff (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d at 1007; Interboro Ins. Co. v Clennon, 113 AD3d at 597). As a result, Defendant has met its initial burden of demonstrating that Sayyed failed to attend duly scheduled EUOs and that Defendant timely denied the claims [*4]based on the First Bill, the Fourth Bill, the Fifth Bill, the Six Bill, the Seventh Bill and the Ninth Bill, which were embodied in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

In opposition, Plaintiff contended that factual issues existed precluding Defendant’s motion for summary judgment. While Plaintiff contended that Defendant failed to respond to Plaintiff’s objections to the EUOs, here, such a response is not required to establish noncompliance with a scheduled EUO (see Interboro v Clennon, 113 AD3d at 597; 21st Century Pharm., Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also, contrary to Plaintiff’s argument, Defendant was not required to provide “objective reasons for requesting [an] EUO” (21st Century Pharm., Inc. v Integon Natl. Ins. Co., 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019]; Dynamic Balance Acupuncture, P.C. v State Farm Ins., 2019 NY Slip Op 50171[U] *2).

Since Plaintiff failed to raise factual issues regarding Defendant’s defense, Defendant is entitled to dismissal of Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action.

Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Although Plaintiff presented no evidence supporting its Cross-Motion, Defendant’s denial of claim forms constituted prima facie evidence that Defendant received Plaintiff’s claims (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]).

With respect to Plaintiff’s fifth and fifteenth causes of action, as addressed above, Defendant failed to toll the time to pay or deny the claims based on Plaintiff’s Third Bill and Eighth Bill in the respective amount of $285.94 and $369.92. Therefore, Plaintiff is entitled to a summary judgment on its claims based on these bills in the total amount of $655.86, plus statutory interest (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046-47; Alur Med. Supply, Inc. v Progressive Ins. Co., 2008 NY Slip Op 52191[U] *1-2).

With respect to Plaintiff’s third cause of action, as noted above, factual issues remain regarding Defendant’s receipt of the Second Bill in the amount of $458.16. Such issue must be resolved at trial.

Finally, regarding the remaining six (6) bills alleged in Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action, given Defendant’s unrebutted evidence of its timely submission of EUO request letters, Sayyed’s failure to attend the two scheduled EUOs, and Defendant’s timely denial of Plaintiff’s claims on that basis, this Court dismisses these causes of action as set forth above. Plaintiff is not entitled to a payment for the First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill, and Ninth Bill.

It is noted that in its second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, and eighteenth causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). Although the Court finds that Defendant failed to timely pay or deny the claims under the fifth and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees (Insurance Law § 5106[a]; 11 NYCRR 65-3.9[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 278), given that Plaintiff’s third cause of action must proceed to trial, determination of attorneys’ fees is premature.

IV.Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is granted to the extent of dismissing Plaintiff’s first, seventh, ninth, eleventh, thirteenth, and seventeenth causes of action based on Plaintiff’s First Bill, Fourth Bill, Fifth Bill, Sixth Bill, Seventh Bill and Ninth Bill, but is otherwise denied, and it is further

ORDERED that Plaintiff’s Cross-Motion is granted to the extent of judgment in Plaintiff’s favor on Plaintiff’s fifth and fifteenth causes of action based on the Third Bill and Eighth Bill in the total amount of $655.86 plus statutory interest, but is otherwise denied, and it is further

ORDERED that Plaintiff’s third cause of action to recover the Second Bill in the amount of $458.16 for services provided June 18 through July 11, 2018, shall proceed to trial; and that Plaintiff’s attorneys’ fees shall be decided during or upon the conclusion of the trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 13, 2021
Queens County Civil Court
_____________________________________
Honorable Li, J.C.C.

CV-730032-18/KI

The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Barakat P.T., P.C., plaintiff. Law Offices of Rachel Perry, Lake Success (Edward R. Johannes of counsel), for Progressive Insurance Company, defendant.

BACKGROUND

On April 22, 2017, plaintiff’s assignor, Jerrod Bratcher, was allegedly injured in an automobile accident (see plaintiff’s exhibit 4 in support of motion, complaint ¶ 2).

On April 27, 2017, plaintiff allegedly provided the following services to Bratcher:

(see plaintiff’s exhibit 3 in support of motion, NF-3 form dated 5/16/17). According to Amro S Mohamed, P.T., the sole proprietor of plaintiff, the bill was mailed to the insurance carrier on May 16, 2017 (see plaintiff’s exhibit 2 in support of motion, Mohamed aff ¶¶ 1, 21).

On May 30, 2017, defendant allegedly denied the bill in its entirety. According to the Explanation of Benefits (EOB), the amount allowed was $103.95, based on the Workers’ Compensation fee schedule, and the amount fell within a deductible/copay (see defendant’s exhibit C in support of cross motion, NF-10 form and EOB).

The instant action

On July 13, 2018, plaintiff commenced this action seeking to recover assigned first-party no-fault benefits, with interest plus attorneys’ fees (see plaintiff’s exhibit 4 in support of motion, summons and complaint). On August 1, 2018, defendant allegedly answered the complaint (see defendant’s exhibit A in support of cross motion, answer and affidavit of service).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

Defendant generally argues that it is entitled to summary judgment dismissing the complaint because plaintiff billed in excess of the fee schedule, and defendant was reimbursed pursuant to the Workers’ Compensation fee schedule (see affirmation of defendant’s counsel ¶¶ 6-10 ^[FN1] ). Defendant contends that the allowable amount was properly applied to the assignor’s deductible (id. ¶¶ 11-12).

A. Workers’ Compensation Fee Schedule

“Insurance Law § 5108 provides, with some exceptions, that charges for services covered under Insurance Law § 5102 ‘shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents'” (Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd 27 NY3d 22 [2016], quoting Insurance Law § 5108 [a]).

To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller (Merrick Med., P.C. v A Cent. Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018][certified medical coder and biller]; Compas Med., P.C. v American Tr. Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [professional coder]).

The affidavit must show that defendant properly applied the appropriate relative value units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique, 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op [*2]51450[U], [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [conversion factor not provided]; see also Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [defendant failed to demonstrate that it had used the correct conversion factor]; Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [defendant failed to demonstrate correct conversion factor was applied]). Lastly, the applicable portion of the fee schedule must be annexed to defendant’s papers (Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Here, defendant failed to meet its prima facie burden demonstrating that plaintiff billed in excess of the fee schedule. Defendant’s counsel argues that, based on an examination of plaintiff’s bill, plaintiff, a physical therapist, used a conversion factor of 8.45, which is reserved for medical doctors, instead of using the conversion factor for physical therapists (affirmation of defendant’s counsel ¶ 8). Defendant’s counsel asserts that the correct conversion factor for plaintiff is 7.70 (id. ¶ 7). However, defendant did not submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller, stating that a physical therapist may only bill for services using the conversion factor for physical therapists, or that a physical therapist may not bill for services using the conversion factor for physical medicine, which is 8.45. Neither did defendant’s counsel cite to any ground rules from the fee schedule nor any statutory or case law authority to support his contention. Defendant therefore failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate (Laga v GEICO Ins. Co., 58 Misc 3d 127[A], 2017 NY Slip Op 51713[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

B. Reduction of the claim due to a policy deductible

Although defendant did not demonstrate that the bill was properly reduced in accordance with the Workers’ Compensation fee schedule, defendant also argues that the policy under which no-fault benefits are being claimed had a $200 deductible. Insofar as the amount of the bill was within the deductible amount, the court must reach defendant’s alternative argument that the bill was validly denied due to the policy deductible.

To meet its prima burden that the bill was properly denied due to application of a deductible, defendant must submit affidavits and documents establishing that that the automobile insurance policy in question had a personal injury protection deductible, and that the claim at issue was timely denied due to said deductible (Healthy Way Acupuncture, P.C. v 21st Century Indem. Ins. Co., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

1. Policy Deductible

Here, defendant submitted a copy of the policy declarations page, which indicates that the automobile policy that defendant issued to the named insured, Jerrod Bratcher, in effect at the time of the accident, has “Mandatory Personal Injury Protection” up to $50,000 for each person, with a $200 deductible (see defendant’s exhibit E in support of motion, Declarations Page at 2). Plaintiff did not raise any objections to this document (see affirmation of plaintiff’s counsel in further support of motion and in opposition to cross motion ¶¶ 14-52).

[*3] 2. Timely Denial

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]). According to defendant’s counsel, the denial was mailed on May 30, 2017 (see affirmation of defendant’s counsel ¶ 11 [table]).

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, —NY3d&mdash, 2021 NY Slip Op 01933, *3 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; accord American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-30 [1st Dept 2004]).

Here, to establish proof of mailing, defendant submitted an affidavit from Tamu Jordan, a Litigation Representative employed by defendant since June 1999 (see defendant’s exhibit B in support of cross motion, Jordan aff ¶ 1), and copies of the denial of claim form and a mailing report (see defendant’s exhibit C in support of motion), which Jordan established were business records (Jordan aff ¶ 6).

According to Jordan, the claims representative electronically creates the document to be mailed, which includes the mailing address, and places the document into a digital file in a centralized computer for mailing (see Jordan aff ¶ 3 [l]). Once the claims representative creates the documents to be mailed, the centralized computer system generates the document with the mailing address (id. ¶ 3 [n]). Documents are printed from the centralized computer system at mailing facilities located in either Highland Heights, Ohio or Colorado Springs, Colorado (see id. ¶ 3 [l]). Once printed, an automated mail machine inserts the document into a windowed envelope so the mailing address is visible (id. ¶ 3 [n]).

Documents mailed in the same windowed envelope are identified with the same Envelope ID, and the sixth and seventh digit of the Envelop ID indicate the facility from which the documents were mailed (id. ¶ 3 [m]). If the sixth and seventh digits are 00 or 02, the documents were mailed from Highland Heights, Ohio; if the sixth and seventh digits are 01, the documents were mailed from Colorado Springs, Colorado (id. ¶ 3 [m]).

In Highland Heights, Ohio, mail is picked up by a United States Postal Service by 1:00 p.m. and 5:00 p.m. Eastern Standard Time, Monday through Friday; in Colorado Springs, Colorado, the mail is picked up by a United States Postal Service by 1:30 p.m. and 5:30 p.m. Mountain Time, Monday through Friday (id. ¶¶ 3[o]-[p]). As the mail is placed into the custody and control the United States Postal Service, information on a Medical Payments Proof of Mailing Report is contemporaneously captured (id. ¶ 3 [a]). The information cannot be altered once it is captured in defendant’s computer system, and the data on the report is compiled the same date that the documents were mailed (id. ¶ 3 [b]).

For denials, two copies are mailed, along with two EOBs (id. ¶ 3 [g]). The information appearing in the NF-10 form and the EOB regarding the recipient, recipient address, patient, dates of service, and the amount billed is obtained from the bill(s) submitted by plaintiff (id. ¶ 3 [i]).

Here, defendant established prima facie proof of mailing of the denial on May 31, 2017, in accordance with a standard office practice or procedure (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50997[U] [App Term, 2d Dept, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). The Medical Payments Proof of Mailing Report indicates that two NF-10s and two EOBs were mailed to plaintiff on May 31, 2017, with Envelope ID CMBPI02Q00566 (see defendant’s exhibit C in support of cross motion). Based on the sixth and seventh digits of the Envelope ID on the mailing report and on Jordan’s affidavit, the denial was therefore mailed from Highland Heights, Ohio.

Plaintiff’s arguments in opposition to proof of mailing are unavailing.

“[T]o rebut the presumption, there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A. v Schiffman, —NY3d—, 2021 NY Slip Op 01933, *3 [2021]). Contrary to plaintiff’s argument, the affidavit stated Jordan’s current title as Litigation Representative (Jordan aff ¶ 1). Additionally, Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (id. ¶ 2).

Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]), which plaintiff cites, is distinguishable.

There, to establish proof of mailing, the defendant submitted two affidavits—an affidavit from a claims representative from the defendant’s office in Ballston Spa, New York and an affidavit from a claims support supervisor from the defendant’s office in Melville New York. The claims representative described the procedure for generating the denial of claim forms, which were then sent to Claims Support Services personnel for processing (id. at *2). The affidavit from the Claims Support Services Supervisor stated, in essence, that the generated denial of claim forms are retrieved from a printer, placed in an envelope, and picked up by a courier who delivers the envelope to the United States Postal Service (id. at *2-3).

The court in Acupuncture Prima Care, P.C. ruled, “while this may describe a ‘standard office practice and procedure,’ it does not describe one “used to ensure that items were properly addressed and mailed” (id. at *3 [internal citation omitted]). The court reasoned that the procedure described did not contain enough safeguards to “take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office” (id.) The court also faulted the affiants for not indicating the basis for their knowledge that the office practice and procedure was followed, and the affiants failed to indicate that they were familiar with the defendant’s office practices and procedures when the first of the denials were allegedly mailed (id. at *3-4). Finally, the court indicated that neither of the affiants (who were in Ballston Spa and Melville) indicated from which office the denials were allegedly mailed, when the denials bore an address from Parsippany, New Jersey (id.).

Here, unlike the affiants in Acupuncture Prima Care, P.C., Jordan established personal knowledge of the standard mailing procedures in both Ohio and Colorado, based on training that Jordan received from the facilities at both Ohio and Colorado (Jordan aff ¶ 2). It is part of Jordan’s duties to ensure compliance with those procedures (id. ¶ 5). Unlike the affidavits in Acupuncture Prima Care, P.C., which did not state the office from which the denials were issued, Jordan provided information about the Envelope ID to establish that the denial was issued from Highland Heights, Ohio. In any event, the same court which decided Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond v Government Employees Insurance Co. (50 AD3d 1123 [2d Dept 2008]) (see Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

Defendant’s copies of the NF-3 Form that plaintiff submitted to defendant are date-stamped “Received Date: 05/22/2017” (see defendant’s exhibit C in support of motion), and plaintiff does not dispute that defendant received the bills on May 22, 2017. Even assuming, for the sake of argument, that the NF-3 Form was received on May 16, 2017, the same date on the NF-3 Form, defendant’s denial on May 31, 2017 was well within 30 days of defendant’s receipt of the bill.

Therefore, defendant met its prima facie burden that the claim was properly denied because the amount allowed was within the $200 policy deductible (Healthy Way Acupuncture, P.C., 54 Misc 3d 142[A], 2017 NY Slip Op 50204[U]; Innovative Chiropractic, P.C., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U]).

Plaintiff failed to raise a triable issue of fact warranting denial of summary judgment.^[FN2]

Therefore, defendant’s motion for summary judgment dismissing the complaint is granted.

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim form in defendant’s motion papers, which admitted receipt of the bill (Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

However, plaintiff’s motion for summary judgment in its favor against defendant is denied. As discussed above, defendant timely denied the bill on the ground that the amount sought was within a $200 deductible.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that plaintiff’s motion for summary judgment in its favor (Motion Seq. No. 001) is DENIED; and it is further

ORDERED that defendant’s cross motion for summary judgment dismissing the complaint (Motion Seq. No. 002) is GRANTED, and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment in defendant’s favor accordingly.

This constitutes the decision and order of the court.

Dated: April 9, 2021

New York, New York

ENTER:

RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1:The paragraphs in defendant’s affirmation in opposition to the motion and in support of the cross motion are misnumbered. The paragraphs are numbered sequentially from 1 through 11, but the paragraphs that follow are numbered 6 through 12. The citation here refers to latter numbering.

Footnote 2:As defendant points out, plaintiff’s affirmation in further support of motion and in opposition to defendant’s cross motion was purportedly served on January 14, 2020, past the December 26, 2019 agreed-upon deadline for opposition to cross motion (see defendant’s exhibit A in reply). However, the court will consider these papers, in the absence of any demonstrable prejudice to defendant (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874, 875 [2d Dept 2011] [“Supreme Court did not abuse or improvidently exercise its discretion in considering the plaintiff’s untimely opposition papers inasmuch as the defendants were not prejudiced thereby”]).