741615/17

Pryanka Arora, Esq.

Law Office of Natalia Vassilieva, P.C.

3042 Ocean Avenue, 1st Floor

Brooklyn, NY 11235

Lawrence N Rogak, Esq.

Lawrence N Rogak LLC

3355 Lawson Boulevard

Oceanside, NY 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3, 4

Affirmation in Opposition 5

The Court hereby sua sponte vacates its decision and order dated June 9, 2019, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an [*2]accident which occurred on November 30, 2015 in New Jersey, defendant moves for summary judgment based on a lack of New York insurance coverage as well as for a determination that New Jersey law applies to this action. Plaintiff, a New York corporation which rendered medical services in New York to its assignor, a New York resident, opposes defendant’s motion and cross-moves for summary judgment in its favor seeking payment of bills submitted in the amount of $3,745.37 based on the bills and an affidavit showing that the plaintiff had mailed them to the defendant more than thirty days prior to starting suit and had not received any denials of benefit.

The basis of defendant’s motion is the claim that plaintiff will be unable to submit proof that defendant’s policy covers the subject incident. To maintain a meritorious action, defendant claims plaintiff “must necessarily establish that either 1) the underlying policy under which NYS statutory no-fault benefits are sought contained a mandatory NYS PIP endorsement, and/or 2) that the actual motor vehicle accident giving rise to plaintiff’s claim occurred within New York State.” Defendant also argues that the laws of New Jersey should be applied since “The claimant was a pedestrian struck by a vehicle insured under a New Jersey policy.”

To support these claims, the defendant submits an uncertified copy of a police report purporting to show that the subject accident occurred in New Jersey and an affidavit from its claim representative Ms. Outhouse which simply states that defendant’s policy does not cover the alleged incident based on her review of the file.

As the plaintiff has not objected to the admissibility of the police report, its contents will be considered by the court. See, Bank of NY Mellon v Gordon 171 AD3d 197 [2d Dept 2019]. The police report indicates that the subject accident occurred in New Jersey between a pedestrian who resided in New York and a New Jersey driver driving a vehicle registered in New Jersey.

Plaintiff responds that New York law should apply as it is a New York corporation which rendered treatment to a New York resident in New York. Additionally, the plaintiff argues that the defendant has failed to produce a copy of its policy and thus failed to show its lack of a New York State no-fault endorsement.

New York utilizes the ‘grouping of contacts’ or ‘center of gravity’ analysis as the appropriate approach to resolve choice of law questions in cases premised on breach of contract. The ‘grouping of contacts’ approach seeks to determine which state has the most significant relationship to the contract or the parties. (See Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993], revg 178 AD2d 899 [3d Dept 1991]. The court must consider the spectrum of significant contacts, rather than a single possible gratuitous event, in its determination as to which state has the most significant relationship to the parties or the contract. (Id. See also, Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56 [2d Dept 2000]). Among the contacts to be considered are the state where the parties entered into the contract, negotiated and performed the contract, the domicile of the parties, and the place of subject matter of the contract. In the context of insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk. See Matter of Midland Ins. Co., 16 NY3d 536 [2011], revg 71 AD3d 221 [1st Dept 2010].

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., 38 Misc 3d 140(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2013], the court applied a ‘grouping of contacts’ or ‘center of gravity’ analysis to a first-party no-fault case in which the plaintiff’s assignor was injured in a motor vehicle accident which occurred in New York. The vehicle in question was [*3]being driven by a New Jersey resident who owned the vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York. In that case, the court held that New Jersey law applied.

When dealing with procedural matters, such as the burden of proof and the admissibility of evidence, the law of the forum state applies. (See, Emmons v Country Lincoln Mercury Sales, Inc., 111 AD2d 213 [2d Dept 1985]; Able Cycle Engines, Inc. v Allstate Ins. Co., 84 AD2d 140 [2d Dept 1981]). Contrary to defendant’s contention, as the movant for summary judgment, the burden of proof is on the defendant to establish its policy does not cover the subject incident and that the laws of New Jersey apply to this case.

To prevail, the movant must establish entitlement to judgment as a matter of law by submitting admissible evidentiary proof (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]), with which includes an affidavit of a person having knowledge of the facts and other admissible evidence (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). The court’s function in determining such a motion, is issue finding, not issue determination. (Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]).

In the case at bar, defendant submits no admissible evidence to establish its policy does not cover the subject incident. Ms. Outhouse’s affidavit states defendant’s policy does not cover the subject incident based on her review of the claim file. However, she does not specify what records she reviewed, including whether she even reviewed defendant’s subject insurance policy at issue. Ms. Outhouse further makes no attempt to establish the foundation of any reviewed records nor proffer the records for the court’s review. In fact, Ms. Outhouse does not even state whether she reviewed defendant’s subject insurance policy, nor does she submit a copy in support of defendant’s motion.

The contents of business records are inadmissible without the introduction of the records themselves. (See, Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), and it is far from clear here what contents of what records Ms. Outhouse relied upon. Accordingly, Ms. Outhouse’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]). Similarly, the defendant’s failure to proffer its insurance policy or any admissible evidence as to its contents leaves open the possibility that the policy covering the subject accident was issued in New York or otherwise contains a New York no-fault endorsement which would permit the application of New York law. The defendant has failed to sustain its burden of proof to establish either that its policy does not cover the subject incident or that the laws of New Jersey apply to this case. Accordingly, defendant’s motion is denied.

Plaintiff seeks summary judgment based upon proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant failed to pay or deny the claim within the requisite 30-day period. Defendant neither rebuts the sufficiency of the proof of claim nor submits either proof of payment or any denials.

In New York, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the [*4]claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2nd Dept 2006].

Plaintiff’s motion must nonetheless be denied. Although the defendant failed to dispel all issues of fact as to whether this case should be controlled by New Jersey law, its submission of the police accident report without objection by the plaintiff sufficiently raises an issue of fact regarding which state’s substantive law should be applied to this case.

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., the court pointed out that a conflict does exist between New York law and New Jersey law, since under New Jersey law, unlike New York Law, a provider has the burden to establish that the provided services were medically necessary, and this defense is non-precludable, that is, an insurer can raise a lack of medical necessity defense at any time.

Under New Jersey law, as the defendant has failed to show that the plaintiff’s assignor was, under a different insurance policy, a “named insured” or “a resident relative in [a] named insured’s household,” as those terms are used in N.J. Stat. § 39:6A-4.2, this case would fall under N.J. Stat. § 39:6A-4 which provides that no-fault (PIP) coverage is afforded to pedestrians injured by a qualifying automobile. See e.g., Lumpkins v Mkt. Transition Facility of New Jersey, 283 NJ Super 181 [Super Ct 1995]. Plaintiff has shown by admissible evidence that it gave defendant timely notice within twenty-one days of commencement of treatment as required by N.J. Stat. § 39:6A-5(a). Plaintiff additionally has shown that its bills are overdue, both as that term is defined by N.J. Stat. § 39:6A-5(g) and by our own 11 NYCRR 65-3.8(a). Plaintiff has not, however, submitted evidence proving the medical necessity of the services it rendered.

Accordingly, plaintiff’s cross-motion is granted only to the extent that it has proven that bills totaling $3,745.37 were timely submitted to the defendant and that no denial was issued. Defendant has raised a triable issue of fact as to whether New Jersey law should apply to this case. Should the defendant prove at trial that its policy in question contains only a New Jersey no-fault (PIP) endorsement and not a New York no-fault endorsement, then the plaintiff shall bear the burden of proving the medical necessity of the services it rendered.

Defendant’s motion is denied and plaintiff’s cross-motion is granted only to the extent indicated. This constitutes a decision and order of the court.

Dated: October 22, 2019

________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

744329/16

Attorney for Plaintiff
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Ave., 3rd Floor, Ste. 7
Brooklyn, NY 11235
(718) 975-2035

Attorney for Defendant
Katherine A. Hazelton, Esq.
Law Office of Goldstein & Flecker
2 Huntington Quadrangle, Ste. 2N01
Melville, NY 11747
(516) 714-7927

The court’s Decision and Order is based upon consideration of the following papers:

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

SUR REPLY

This is an action by Plaintiff medical provider to recover assigned first-party no-fault benefits for treatment provided to its assignor, David Cenevil (Injured Party). Plaintiff argues that it met its prima facie burden and requests that summary judgment be granted in its favor pursuant to CPLR 3212. Defendant opposes Plaintiff’s motion and cross moves for dismissal on grounds that the injuries were the result of an intentional assault when the insured, Bernard Foy (Insured), used his vehicle as a weapon to deliberately strike the Injured Party. Accordingly, Defendant asserts that the Injured Party’s injuries were not the result of an accident, but an intentional act which is not a covered loss under 11 N.Y.C.R.R. § 65-2.2(a). This court agrees.

In New York, an insurer must provide no-fault insurance benefits for injuries resulting from an accident. 11 N.Y.C.R.R. § 65-2.2(a), requires coverage for “personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (emphasis added). In order for an insurer to be relieved of its obligation to cover a loss, it must come forward with evidence to demonstrate that the injuries were a result of an intentional or deliberate action (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011]; Liberty Mut. Ins. Co. v. Goddard, 29 AD3d 698 [2d Dept. 2006]). An insurer must establish its “founded belief” that the incident was an intentional act by a preponderance of the evidence (A.B. Med. Services PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 9 [2d Dept. 2003]; V.S. Med. Servs., P.C. v. Allstate Ins. Co., 25 Misc 3d 39 [2d Dept. 2009]), and can meet its burden with circumstantial evidence (State Farm Mut. Auto. Ins. Co., v. Laguerre, 305 AD2d 490 [2d Dept. 2003]).

Here, Defendant has met its burden through substantial documentary evidence including a police accident report, a criminal complaint an arrest report and an affidavit from Defendant’s Special Investigation Unit (SIU) investigator Doug Pfleging. These documents consistently support a clear finding that the incident which lead to the Injured Party’s injuries was a result of an intentional act. According to the police accident report, the Insured deliberately hit the Injured Party with his vehicle: “At TPO witness stated that deft had a verbal dispute with his step son [sic]. Witness stated that deft (step father) used his vehicle to hit c/v and fled the accident scene” (Deft. Exh. B). Pursuant to the arrest report, the Insured was subsequently arrested on several charges including felony assault with intent to cause serious physical injury and felony assault for using his vehicle as a weapon (Deft. Exh. C).

In New York, to determine whether an event was accidental “it is customary to look at the casualty from the point of view of the insured, to see whether or not it was unexpected, unusual and unforeseen'” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976]). The view point of the injured party is not considered “[b]ecause an injury is always fortuitous to a non-consenting victim” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Michaels v. City of Buffalo, 85 NY2d [*2]754, 759 [1995]). The same is true when the injured party seeks benefits under the policy’s uninsured motorist endorsement (Castillo v. Motor Vehicle Indemnification Corp., 161 AD3d 937 [2d Dept. 2018]; Utica Mut. Ins. Co. v. Burrous, 121 AD3d 910 [2d Dept. 2014]). Here, both the witness’ statement and the testimony from the Injured Party are consistent with a finding that from the Insured’s perspective, the incident was a deliberate act meant to cause injury (Deft. Exh. D; see generally McCarthy v. Motor Vehicle Indemnification Corp., 12 NY2d 922 [1963]).

Plaintiff’s arguments concerning its prima facie case and timely denial of the claims are irrelevant. Defendant insurer “is not precluded, despite untimely disclaimer, from raising as a defense its denial of liability on the ground that the services rendered to treat the injuries at issue did not arise from a covered accident” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 201 [1997]). Furthermore, Defendant’s “strict compliance with the time requirements of both statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d at199).

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Defendant’s cross motion to dismiss is granted.

This constitutes the decision and order of this court.

September 4, 2019
Brooklyn, NY
ENTER.
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

732771/17

Attorney for plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, New York 11235

Attorney for defendant
Lawrence N. Rogak, Esq.
Lawrence N. Rogak LLC
3355 Lawson Boulevard
Oceanside, New York 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3,4

Affirmation in Opposition to the Cross-Motion 5

The Court hereby sua sponte vacates its decision and order dated November 15, 2017, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an accident which occurred on October 1, 2015, defendant moves for summary judgment based on plaintiff’s assignor’s alleged failure to appear for an examination under oath (“EUO”) and upon the defense of policy exhaustion. Plaintiff cross-moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b).

It is well settled that summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman supra at 404).

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

EUO NON

APPEARANCE DEFENSE

While plaintiff’s non-appearance at an EUO vitiates defendant’s obligation to provide coverage (see Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2d Dept 2014]).

Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant’s standard office practices and procedures designed to ensure proper mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008]). Defendant’s affidavit submitted in the case at bar, fails to establish that the described procedures was designed to ensure that the EUO letters were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept [*2]2015]).

To establish the proper mailing of the EUO requests, defendant submits an affidavit from its claim representative, Christina Valentin. Ms. Valentin states that an EUO notice was sent to plaintiff’s assignor, on December 9, 2015, scheduling the EUO for January 6, 2016; and upon assignor’s non-appearance, a follow up notice was sent on January 7, 2016 re-scheduling the EUO for February 9, 2016. Ms. Valentin describes the documents which purport to the be the notices as ” true and accurate copies of the scheduling notices sent by the Law offices of Lawrence N. Rogak LLC” to plaintiff’s assignor.

Contrary to Ms. Valentin’s statement, however, the EUO notices which were attached to defendant’s motion are not generated by the Law Office of Lawrence N. Rogak LLC, but by the Law Firm of Milber Makris Plousadis & Beiden, LLP. Ms. Valentin’s assertions are further erroneous in that the notices seek an EUO of the plaintiff’s employee, Dr. Darren T. Mollo, DC, and not of plaintiff’s assigner, who notably is not even among the named claimants listed in the notices. Thus, defendant fails to establish that it requested an EUO of plaintiff’s assignor, and further, that it accurately addressed and mailed the request to him. Each of said deficiencies, warrants denial of defendant’s motion.

In addition, defendant fails to meet its burden of showing that plaintiff’s assignor failed to appear for the EUOs. (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, to establish burden of plaintiff’s failure to appear for a scheduled EUO, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the instant matter, the only indication of plaintiff’s assignor’s nonattendance at the EUO is defense counsel’s conclusory affirmation in support of the instant motion which is devoid of evidence of his personal knowledge of the alleged non-attendance. Counsel neither indicates whether he was assigned to conduct the EUO nor whether he was present at the EUO. Accordingly, defendant’s motion is further denied on the basis of failure to establish the assignor’s EUO non-appearance.

Moreover, defendant fails to show the timeliness of its denial. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, (11 NYCRR 65-3.8(a)(1)),

According to the denial, the “final verification” requested was on January 31, 2016. Yet, the moving papers contain no verification request, or any document dated January 31, 2016. As discussed above, the only verification requests annexed to defendant’s papers pertain to claimants whose treatment is not at issue in the instant action.

As defendant has failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO request, the nonappearance of the plaintiff’s assignor at the EUOs and the timeliness of its denial, its motion for summary judgment, based on the EUO [*3]nonappearance is denied.

POLICY EXHAUSTION DEFENSE

Defendant also seeks to dismiss the complaint on the basis that its policy limits have been properly exhausted.An insurer is not required to pay a claim where the policy limits have been properly exhausted (Hospital for Joint Diseases v. State Farm Mut. Auto Ins. Co., 8 AD3d 533 [2nd Dept., 2004]). An insurer’s payment of full monetary limits set forth in the policy, terminates its duties under the contract (Presbyterian Hosp. in City of New York v. Liberty Mut. Ins. Co., 216 AD2d 448 [2nd Dept., 1995]).

Moreover, when an insurer receives claims for more than $50,000, payments for claims that are submitted prior to the exhaustion of the $50,000 shall be made in the order in which each service was rendered or each expense was incurred (11 NYCRR 65-3.15; Alleviation Medical Services, P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App. Term, 2nd Dept., 2d, 11th & 13th Jud. Dists., 2017]).

In the case at bar, to demonstrate the policy’s exhaustion based on priority of payment when defendant received the bill, defendant relies on a payment “ledger” which it contends is admissible based on its claim examiner’s statement that the document is “a true and accurate copy of the payment ledger maintained on this claimant.” Defendant, however does not satisfy the evidentiary requirements of CPLR §4518 absent information regarding who or by whom the ledger was created or maintained, or whether the data in the ledger was recorded contemporaneously or soon after the occurrence. As defendant must prove its defense in admissible form, the failure to establish the evidentiary foundation of the ledger, which is the essence of its policy exhaustion defense, warrants denial of its motion.

Aside from its inadmissibility, the ledger’s ambiguity, further prevents defendant from demonstrating the exhaustion defense. The ledger does not specify when defendant received any of the prior bills leading to the exhaustion of the policy, but contains vague headings such as ‘paid date,’ ‘service period start’ and ‘service period end’ without proof that any of the headings represent the date that defendant in fact received or paid the bill at issue.

Finally, defendant fails to establish that its exhaustion of policy defense was based on proper priority of payment of claims. The term “claims,” in the priority of payment regulation excludes claims that are incomplete because verification requests are outstanding (Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, while an insurer awaits verification of an unverified claim, it may pay subsequently received verified claims, even if that will result in exhaustion of the policy before the requested verification is finally received (Id.).

In the instant matter, defendant admits receipt of the bills at issue on December 16, 2015, when, as per the ledger, the entire $50,000 policy was still available to pay claims since no claims had been yet been paid. Since defendant has failed show that the 30-day period it had to pay the bill was tolled by a properly mailed verification request or by non-compliance with such verification, it failed to justify its nonpayment within the 30-days.

Defendant has failed to establish as a matter of law either the defense of EUO non-appearance or that of policy exhaustion. Thus, its motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION

In opposition to the plaintiff’s cross-motion for summary judgment, defendant attaches a copy of a decision in Budget Truck Rental, LLC v. Mollo, Index No.: 150666/15 [Sup. Court, NY County, Lebovits, J.] which included a finding that the time that plaintiff in this case was not [*4]properly incorporated when it submitted its billing in that case which arose from a November 7, 2013 accident and therefore not entitled to payment for those bills.

If it is proven in this case that the plaintiff was ineligible to receive payment as of the date services were rendered, that would constitute a defense. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]) Although the defendant presents no denial of claim on this basis of improper or fraudulent incorporation of the plaintiff, it is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial. (Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept 2012]). Accordingly, there are material issues of fact as to plaintiff’s corporate status at the time that services were rendered necessitating the denial of plaintiff’s cross-motion.

All of the motions before this court are denied with one exception. Plaintiff’s cross-motion pursuant to pursuant to CPLR 3212(g) is granted only to the extent that it has been established that the bills at issue were mailed to and received by the defendant.

Dated: May 17, 2019
______________________
ODESSA KENNEDY
Judge of the Civil Court

706182/16

Attorney for Plaintiff: Olga Sklyut, Esq.

Attorney for Defendant: Law Office of Jason Tenenbaum, PC

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

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

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

Standard of Review

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

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

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

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

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

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

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

No-Fault Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(11 NYCRR 65-1.1).

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

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

(id. at 560).

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

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

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

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

Defendant’s Motion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Plaintiff’s Cross-Motion

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

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

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

This constitutes this Court’s decision and Order.

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

Footnotes

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

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

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

[*1]

Civil Court of the City of New York, New York County, April 9, 2019

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for plaintiff.

Law Offices of Rubin & Nazarian, Long Island City (Tasnim Hassanali of counsel), for defendant.

Background

Plaintiff commenced this action to recover assigned first-party no-fault benefits on behalf of Eric Daniel (assignor) in 2013. In 2018, plaintiff was awarded a judgment for the amount sued for. The action was then assigned to this court for a determination of plaintiff’s claim for attorneys’ fees.

The summons and complaint were filed on February 6, 2013.

On May 6, 2013, defendant appeared, by counsel, and filed an answer asserting 11 affirmative defenses, including that plaintiff’s assignor failed to appear for an independent medical exam (IME) and thus breached a condition precedent for coverage.

On June 25, 2013, defendant moved for summary judgment based on its defense that the assignor failed to appear for an IME. The motion was adjourned to October 4, 2013, April 1, 2014, July 25, 2014, and January 6, 2015. On February 5, 2015, defendant withdrew the motion.

There was a preliminary conference scheduled for October 4, 2013, and further conference dates on April 30, 2014, November 12, 2014, and April 22, 2015.

Plaintiff filed a notice of trial on May 14, 2015.

The action appeared on the trial calendar on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. On December 18, 2018, the court (Ramirez, J.) issued a decision which stated in pertinent part:

“Plaintiff has made out a prima facie case. Defendant has failed to establish its defense of IME no show. Thus, judgment for Plaintiff for $944.12, plus statutory interest and filing fees.

“The issue of attorney fees will be severed and heard in Part MP2 on 2/20/19 at 9:30 am (Room 353).”

On February 20, 2019, the action was adjourned to April 1, 2019.

On April 1, 2019, the action was assigned to this court for a hearing to determine plaintiff’s claim for attorneys’ fees. The{**63 Misc 3d at 877} hearing commenced and concluded on that date. The matter was adjourned to April 8, 2019, for the submission of legal memoranda. On April 8, 2019, after the submission of memos by each party via email, the court reserved decision.

The Hearing

Plaintiff presented one witness at the hearing, Jennifer Raheb (JR), an attorney with the law firm representing plaintiff. Plaintiff also submitted a copy of the pleadings, the summary judgment motion papers, a printout from eCourts and the decision entering judgment.

JR testified that she has been admitted to practice law for 15 years, and has worked for Gary Tsirelman, P.C. for approximately five years. JR is familiar with this action and made all the court appearances on the case from at least May 2016 forward. JR testified credibly that each time the action appeared on the trial calendar, she spent approximately one hour preparing the file the night before. For this case, JR testified that the preparation included review of documents related to defendant’s IME no-show defense, including letters requesting an appearance for an IME and proof of mailing. JR testified that she also prepared cross-examination for the two witnesses she expected defendant to produce to establish proof of the assignor’s failure to appear and the scheduling letters.

JR did not do the opposition to the summary judgment motion, nor is there a record of opposition papers having been filed with the court. However, plaintiff did submit a copy of the opposition papers prepared by another attorney at the firm, Douglas Mace, Esq. (exhibit 7).

JR testified that in her experience motions on policy issues are much more complex than motions on medical necessity.

JR is assigned to handle the New York County no-fault cases for her firm and makes daily appearances in New York County Civil Court. JR typically arrives in court at around 9:30 a.m.

JR remembers first appearing on this case in 2015.

While JR had some independent recollection of specific appearances, much of her testimony was based on her general practice and procedures. JR testified that there were six appearances required for defendant’s summary judgment motion and eight appearances required for trial dates.

JR testified that no adjournments were granted without an application before the court on the trial dates, because of the age of the action. JR testified that she called defendant prior to{**63 Misc 3d at 878} each date and on each occasion, defendant stated they were ready to proceed.

JR appeared on May 25, 2016, before Judge Samuels and recalled that the trial was adjourned on defendant’s application.

JR appeared on June 8, 2017, and defendant made an application for an adjournment.

JR appeared on July 5, 2018, before Judge Nock, and defendant made an application to adjourn to secure a witness for the IME no-show defense. Defendant had only one witness available on that date.

JR testified that both parties knew early on that plaintiff would be seeking attorneys’ fees in this litigation, and that the case stood out in her mind for that reason.

On September 24, 2018, both parties appeared in court and conferenced the case with Judge Ramseur and her court attorney. Defendant decided at that time that it was not going to pursue the IME no-show defense and the action was adjourned to discuss a possible resolution including the issue of attorneys’ fees.

On November 5, 2018, defendant made an application for an adjournment and stated it did intend to proceed on the IME no-show defense at trial.

On December 18, 2018, the order entering judgment against defendant was issued. JR testified that plaintiff relied upon a notice to admit to establish its prima facie case. JR estimated that the trial could not have commenced before 11:00 or 11:30 a.m., because the court first went through the calendar calls.

The parties appeared on February 20, 2019, for the attorneys’ fees hearing, but the court had mis-calendered the matter and the hearing was adjourned to April 1, 2019.

On cross-examination, JR acknowledged that she maintained no contemporaneous records of the time she spent working on this case. For example, she did not record on any of the appearance dates the time she left the courthouse.

JR testified that she typically has more than one case on the morning calendar but less than 10 cases. While her office does maintain records of the specific number of cases she was handling on each of the dates in question, JR did not bring those records with her for the purpose of the hearing.{**63 Misc 3d at 879}

Discussion

It is undisputed that in this case defendant designated its IME no-show defense as a policy issue by checking off box 5 on the NF-10 denial of claim form.

11 NYCRR 65-4.6 (c) governs payment by insurers of applicants’ attorneys’ fees for services necessarily performed in the resolution of no-fault disputes and provides in pertinent [*4]part:

“For disputes subject to . . . court proceedings, where one of the issues involves a policy issue as enumerated on the prescribed denial of claim form (NYS form NF-10), subject to this section, the attorney’s fee for the arbitration or litigation of all issues shall be limited to a fee of up to $70 per hour, subject to a maximum fee of $1,400. In addition, an attorney shall be entitled to receive a fee of up to $80 per hour for each personal appearance before the arbitration forum or court.”

While defendant argues that there was no policy issue in this action, the court disagrees. “The failure to appear for IMEs requested by the insurer ‘when, and as often as, [it] may reasonably require’ (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]).

Plaintiff has the burden in establishing the amount of hours reasonably spent on legal work in this action. Plaintiff admitted it was aware that it would be seeking attorneys’ fees in this action, and the best evidence of time spent would have been time records contemporaneously maintained by the attorney doing the work.

JR’s testimony on the hours she spent was essentially an educated guess based on her routine and custom. For example, in confirming that she appeared on the dates in question, JR testified that she relied in part on her records of days absent from work, and when she saw she was not absent she determined she would have been the attorney in court on a particular date.

Less guesswork would have been involved had plaintiff provided evidence of the number of other matters she handled on each date she appeared. This evidence was readily available to plaintiff, as acknowledged by JR in her testimony, but not provided to the court, nor subpoenaed by defendant.{**63 Misc 3d at 880}

The court finds that plaintiff’s attorneys spent at least one-half hour in court on each of the trial dates on May 25, 2016, June 8, 2017, July 5, 2018, September 24, 2018, November 5, 2018, and December 18, 2018. This is reduced from the one hour per appearance requested by plaintiff, based on the failure of counsel to maintain contemporaneous time records for the appearances, and the failure of plaintiff to provide the court with evidence on the number of cases the attorney was handling in court on each of the dates in question.

As JR did not testify with certainty that she appeared on the earlier dates, and no other attorney for plaintiff offered evidence of same, no time is awarded for court appearances prior to the initial trial date.

No award is made for appearances after the trial date, as these appearances were solely on the issue of attorneys’ fees and time spent substantiating counsel fees, also known as fees on fees, and are not permitted by the statute (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2017]; Insurance Law § 5106 [a]).

The court further finds that JR spent one hour each night prior to scheduled trial dates in preparation.

Plaintiff is additionally awarded one-half hour for the preparation of opposition papers to defendant’s summary judgment motion. Again since there was no evidence on the amount of time the attorney who prepared the papers spent on the task, and the papers were never filed with the court, the time is more limited than requested by plaintiff.

Based on the foregoing, the court finds plaintiff is entitled to three hours for court appearances totaling $240 and 6.5 hours for trial preparation and the affirmation in opposition totaling $455. Plaintiff is entitled to a total of $695 for attorneys’ fees in this action.

Footnotes

Footnote *:The file was not available to the court at the time of the hearing. The procedural history is based on the case summary maintained by Civil Court as well as the documents and testimony presented at the attorneys’ fees hearing.