CV-130940-03/QU

LAW OFFICES OF DAVID B. O’CONNOR P.C.

Counsel for Plaintiff PDG Psychological P.C. As Assignee of Glendon Steve Antoine

2606 East 15th Street

Brooklyn, New York 11235

By: David Bryon O’Connor, Esq.

MCDONNELL ADELS & KLESTZICK, PLLC

Counsel for Defendant State Farm Mutual Insurance Co.

401 Franklin Avenue

Garden City, New York 11530

By: Julie Andrea Linwood, Esq. and Alisa Ann Burns, Esq.

I. Background

In this action, PDG Psychological P.C. (the “Plaintiff”) seeks to recover no-fault insurance benefits for alleged services rendered to Plaintiff’s assignor, Glendon Steve Antoine, based on an alleged automobile accident that occurred on or about May 5, 2003. Plaintiff served a summons and complaint on defendant State Farm Mutual Insurance Co. (the “Defendant”) on or about November 6, 2003. In turn, Defendant allegedly served its verified answer and discovery demands to Plaintiff on or about December 22, 2003.

Plaintiff moved for summary judgment and Defendant made a cross-motion to dismiss for failure to provide discovery or, in the alternative, to compel discovery. There is no indication that Plaintiff provided any responses to Defendant’s discovery demands prior to Defendant’s cross-motion. On July 8, 2005, the Court issued an order (the “July 8, 2005 Order”) denying Plaintiff’s motion for summary judgment for failure to establish a prima facie case and granting [*2]Defendant’s cross-motion, holding that “the action is dismissed unless with[in] thirty days after service of a copy of this order, with notice of entry, [P]laintiff provides a response to all previously served discovery demands and appears for an examination under oath.” On or about October 24, 2005, Plaintiff provided responses to Defendant’s discovery demands.

A prolonged period of inactivity appears to have followed and, on June 6, 2007, this case was converted to inactive, and the record indicates that both parties subsequently continued to remain inactive. Defendant alleges that in March 2011 it served notice of entry of the July 8, 2005 Order, with an attached copy of the July 8, 2005 Order, to Plaintiff. Plaintiff asserts that it did not receive a copy of the July 8, 2005 Order until March 11, 2011.

Nevertheless, this matter largely remained dormant until, on or about August 10, 2017, Plaintiff served a notice of trial and certificate of readiness, without having appeared for an examination under oath (“EUO”) as required by the July 8, 2005 Order. On August 17, 2017, Defendant moved: (1) to dismiss the complaint for failure to provide complete and meaningful discovery; or, in the alternative, (2) to strike Plaintiff’s notice of trial; (3) to compel Plaintiff to provide responses to Defendant’s discovery demands and appear for an examination before trial (“EBT”); and (4) to stay the accrual of no-fault interest. On April 18, 2018, this Court issued a decision and order (the “April 18, 2018 Decision”) denying Defendant’s motion to dismiss and granting Defendant’s motions to strike the notice of trial and to compel Plaintiff to appear for an EUO within 30 days of service of the order with notice of entry or the case would be dismissed. Defendant now moves to reargue the April 18, 2018 Decision and requests: (1) an order compelling Plaintiff to provide complete and meaningful discovery responses before appearing for an EUO; and (2) staying accrual of no-fault interest.

In accordance with Rule 2219 [a] of the Civil Practice Law and Rules (“CPLR”), the Court considered: (1) Defendant’s motion to reargue, Defendant’s counsel’s affirmation and attached exhibits; (2) Plaintiff’s counsel’s affirmation in opposition to said motion and attached exhibits; and (3) Defendant’s counsel’s affirmation in reply to Plaintiff’s affirmation in opposition and attached exhibits.

II. Discussion

As an initial matter, Defendant argues that Plaintiff could not transfer this action to the Law Offices of David B. O’Connor P.C., which is the third counsel for Plaintiff, because there is no record of Defendant being served with a consent to change attorney form, pursuant to CPLR 321 [b], evidencing the change from original counsel to the second counsel. However, this argument was made for the first time in Defendant’s reply papers, which function to address arguments made in opposition to the position taken by the movant—not to permit the movant to introduce new arguments or new grounds for the requested relief (see Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827 [2d Dept 2008]). Thus, this Court declines to issue a decision on this argument, but notes that a consent to change attorney form for the transition of this action from second counsel to the Law Offices of David B. O’Connor P.C. was submitted and Defendant has not claimed that Plaintiff’s technical failure in complying with CPLR 321 [b] for the transition from the original counsel to second counsel caused Defendant any prejudice (see Sperry Assocs. Fed. Credit Union v. John, 160 AD3d 1007, 1009 [2d Dept 2018]).

CPLR 2221 (d) states, in pertinent part, that “a motion for leave to reargue . . . shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.” Defendant asserts that the April 18, 2018 Decision overlooked the deficiencies in [*3]Plaintiff’s October 24, 2005 discovery responses and the portion of Defendant’s motion seeking a stay of the accrued interest. Given that the April 18, 2018 Decision did not specifically address these issues, the Defendant’s motion is granted and the Court amends its April 18, 2019 Decision as explained below.

A. Discovery Responses

Defendant identified only three of the discovery responses provided by Plaintiff, on or about October 24, 2005, as insufficient. Specifically, Defendant asserts that Plaintiff’s responses to Question 5 and Question 7, of Defendant’s Demand for Verified Interrogatories, are insufficient because they indicate that proof of mailing for the bills at issue had been attached to Plaintiff’s responses, but no proof of mailing was attached. Defendant further asserts that Plaintiff’s response to Question 18 is insufficient because Question 18 requests “the name and address of the office manager and/or individual who assisted in preparing and sending the bills and/or verification of treatment forms attached to the Plaintiffs complaint” and, Plaintiff simply responded “not applicable.”

i. Motion to Dismiss

The Court reaffirms the denial of Defendant’s motion to dismiss based on Plaintiff’s alleged failure to comply with the July 8, 2005 Order. The July 8, 2005 Order provides that the 30-day deadline for Plaintiff to respond to Defendant’s discovery demands, and avoid dismissal, could only be initiated by “service of a copy of the order, with notice of entry,” and Plaintiff has not provided proof that the July 8, 2005 Order was ever served with notice of entry beyond Plaintiff’s submission of an unexecuted copy of a notice of entry dated May 1, 2011. Accordingly, Plaintiff’s October 24, 2005 responses were timely.

Furthermore, to the extent that any of Plaintiff’s responses are substantively insufficient, dismissal is not appropriate “where there is no clear showing that the failure to comply with discovery demands was willful or contumacious” (see Walter B. Melvin, Architects, LLC v. 24 Aqueduct Lane Condominium, 51 AD3d 784, 785 [2d Dept 2008] (noting that striking a pleading is a “drastic remedy” and further finding that “while the plaintiff was clearly dissatisfied with the responses to its demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify striking the defendant’s answer”); Conway v. Brooklyn Gas Union Co., 212 AD2d 498, 498 [2d Dept 1995]). The portion of Plaintiff’s response to Questions 5 and 7 that states “[s]ee attached proof of mailing,” suggests an intent to comply and Plaintiff’s failure to attach proof of mailing could simply be a misunderstanding or oversight. With respect to Plaintiff’s response to Question 18, “not applicable” may simply be an indication that such information is not available, and Plaintiff intends to satisfy its burden by providing evidence of Plaintiff’s “standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]). Accordingly, dismissal is not proper, and Plaintiff should be given a chance to clarify its responses (see Spiegel v. Goodman, 98 AD2d 815, 815 [2d Dept 1983]; Escobar v. St. Vincent’s Med. Ctr. Of Richmond, 2003 NY Slip Op 51674[U], *1 [App Term, 2nd & 11th Jud Dists 2011]).

ii. Motion to Strike Notice of Trial

The Court reaffirms its grant of Defendant’s motion to strike Plaintiff’s notice of trial. A notice of trial is properly vacated when the certificate of readiness incorrectly states a material fact regarding the completion of discovery (see Amoroso v. City of New York, 66 AD3d 618, 618 [2d Dept 2009]; Garofalo v. Mercy Hosp., 271 AD2d 642, 642 [2d Dept 2000]; Citywide Social [*4]Work & Psychological Servs., PLLC v. Autoone Ins. Co., 2011 NY Slip Op 51308[U], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2011] (finding that the court properly vacated a notice of trial due to outstanding discovery mandated in a prior order that directed plaintiff to provide discovery responses and appear for an examination before trial). It is undisputed that the EUO compelled in the July 8, 2005 Order has not yet occurred. Accordingly, Plaintiff’s statement that discovery has been completed in the certificate of readiness filed with the notice of trial in the current matter is erroneous and the notice of trial is properly stricken (see Amoroso, 66 AD3d at 618).

iii. Motion to Compel

This Court grants Defendant’s motion to compel sufficient responses to Questions 5, 7 and 18 of Defendant’s Demand for Verified Interrogatories. CPLR 3101 [a] provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]. The test in determining whether discovery is material and necessary “is one of usefulness and reason” (Id.).

The information sought by Questions 5, 7 and 18 is material and necessary and Plaintiff’s responses require clarity in light of their aforementioned issues. Thus, Plaintiff must provide sufficient responses to Questions 5, 7 and 18, and Plaintiff must produce any proof of mailing in its possession for the bills at issue. Plaintiff must provide said responses and documents to Defendant by no later than May 16, 2019 or this matter will be dismissed. Plaintiff may only extend this deadline with leave of the Court.

Additionally, although the Court reaffirms its grant of Defendant’s motion to compel Plaintiff to appear for an EUO, this Court finds that Plaintiff’s EUO is not preconditioned on Plaintiff’s discovery responses. The July 8, 2005 Order simply states that the Plaintiff must “respon[d] to all previously served discovery demands and appear[ ] for an examination under oath” to avoid dismissal (emphasis added). Contrary to Defendant’s suggestion otherwise, the July 8, 2005 Order does not address whether Plaintiff is required to respond to the discovery demands prior to being afforded the opportunity to appear for an EUO. Moreover, Defendant has not referred to any law that justifies its inactivity, with respect to both Defendant’s belated objections to Plaintiff’s discovery responses and apparent failure to even attempt to schedule an EUO.

In the over 12 years since the July 8, 2005 Order was issued, there is no evidence that the Defendant has served a notice of taking oral deposition pursuant to CPLR 3107 or even contacted Plaintiff about scheduling an EUO. Defendant seemingly blames its 12 years of inactivity on Plaintiff’s deficient discovery responses. However, the “ultimate determination of compliance [with respect to discovery] is the province of the court” (see Jones v. White Metal Rolling & Stamping Corp., 86 AD2d 687, 687-688 [3d Dept 1982]). Upon receiving responses from Plaintiff that Defendant deemed insufficient on or about October 24, 2005, Defendant could have immediately moved to compel satisfactory answers, but failed to do so (see J.R. Stevenson Corp. v. Dormitory Authority of State of NY, 112 AD2d 113, 117 [1st Dept 1985]). Considering that the July 8, 2005 Order provides that this matter “is” dismissed “unless“ Plaintiff responds to discovery requests and appears for an EUO, Defendant’s dilatory conduct played a significant role in this matter being brought to a standstill because Defendant waited [*5]almost 12 years to object to Plaintiff’s discovery responses and never afforded Plaintiff with an opportunity to appear for an EUO.

In light of Defendant’s delay in conducting an EUO of the Plaintiff and in order to expedite the completion of pretrial preparation, this Court further finds that if the Defendant fails to conduct an EUO of the Plaintiff by July 1, 2019, Defendant will be deemed to have waived it’s right to depose the Plaintiff, Plaintiff will no longer be obligated to appear for an EUO pursuant to the July 8, 2005 Order and Plaintiff will be permitted to file a notice of trial. If Plaintiff fails to appear for an EUO, at a time and place to be specified in written notice from Defendant of not less than 20 days beforehand or at such time and place as the parties may agree, this matter will be dismissed. This deadline may only be extended with leave of the Court.

B. Statutory Interest

The determination as to staying the accrual of no-fault interest cannot be made at this point. Prejudgment interest that accrues on overdue no-fault benefits at a rate of two percent per month “is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply” (East Acupuncture P.C. v. Allstate Ins. Co., 61 AD3d 202, 211 [2d Dept 2009]; see Aminov v. Country Wide Ins. Co., 986 NYS2d 909, 910 [App Term, 2d Dept, 11th & 13th Jud Dists 2014] (referring to interest accumulated pursuant to Insurance Department Regulations as prejudgment interest)). The Insurance Department Regulations provide that statutory prejudgment interest shall accumulate “unless the applicant unreasonable delays the . . . court proceeding” (11 NYCRR 65-3.9 [d]; see Aminov, 986 NYS2d at 910; Devonshire Surgical Facility v. Am. Tr. Ins. Co., 2011 NY Slip Op 50793[U], *5 [Civ Ct NY County 2011] (further noting that a “court proceeding ends with entry of judgment”)).

An award of this interest is only available to a prevailing claimant who has proven that that first party benefits are overdue (see Insurance Law § 5106 [a] (“benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained [and] [a]ll overdue payments shall bear interest at the rate of two percent per month”); Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498, 502 [2015] (noting plaintiff’s “prima facie burden of showing the fact and amount of loss sustained”). Further proceedings in this matter must be conducted to determine whether the benefits at issue are overdue (see Viviane, 25 NY3d at 502; see also Solow v. Wellner, 205 AD2d 339, 341[2nd Dept 1994], affd 86 NY2d 528 [1995] (“[A] determination as to the landlord’s entitlement to prejudgment interest on back rent recovered is premature at this point [because] [a]lthough CPLR 5001 (a) provides that interest shall be recovered on monetary damages awarded for breach of contract . . . such award, like that of attorney’s fees, is generally only available to the prevailing party [and] [f]urther proceedings must be conducted to determine whether any of the parties will attain that status.”).

In fact, the July 8, 2005 Order found that Plaintiff failed to meet its prima facie burden in moving for summary judgment (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] (noting that “failure to make such a prima facie showing requires denial of the [summary judgment] motion,” as opposed to the dismissal of a complaint). A determination by this Court on whether interest is tolled would be purely academic when there has not been an initial determination that interest is actually owed and accumulating, and this Court is prohibited from issuing such an advisory opinion (see Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 810 [2003]).

Furthermore, this Court also lacks evidence that is critical in determining the parameters of any tolling period in this matter. For example, Defendant has not submitted affidavits of service to prove service of its discovery demands or service of the July 8, 2005 Order with notice of entry. Additional evidence is also needed to determine whether Plaintiff is the cause of any unreasonable delay in this court proceeding, which must be established before interest can be tolled (see 11 NYCRR 65-3.9 [d]). Indeed, the extent to which Plaintiff caused any delay in this matter is questionable because Plaintiff’s ability to move forward in prosecuting this matter after the issuance of the July 8, 2005 Order was arguably limited by Defendant’s failure to provide Plaintiff with an opportunity to appear for an EUO. Notably, Defendant does not deny that it ignored Plaintiff’s alleged attempt to schedule an EUO even 12 years after the issuance of the July 8, 2005 Order.

Therefore, the Court denies Defendant’s motion to stay the accrual of no-fault interest, but Defendant may resubmit its motion on a later date.

III. Conclusion

Accordingly, the Court denies Defendant’s motion to dismiss, grant’s Defendant’s motion to strike, grants Defendant’s motion to compel, and denies Defendant’s motion to stay interest.

This constitutes the decision and order of the Court.

Dated: April 3, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

007745/11

Attorney for the Plaintiff: Gary Tsirelman P.C., 129 Livingston Street Brooklyn, Brooklyn, New York 11201

Attorney for the Defendant: Law Offices of Aloy O. Ibuzor, 485 Lexington Avenue, 7th Floor, New York, New York 10017

This is an action seeking reimbursement for medical services provided by Plaintiff under the No-Fault system. By Notice of Motion dated February 15, 2018, Plaintiff moves to vacate an order of administrative dismissal pursuant to CPLR 3215(c) dated March 30, 2017 and for leave to enter a default judgment against Defendant. Defendant opposes the motion.

The history of this case which culminated in the CPLR 3215(c) dismissal commenced with the timely purchase of an index number on January 26, 2011. Plaintiff, however, did not serve the summons and complaint on Defendant until June 5, 2013, over two years after the statutory 120-day service period had expired. Plaintiff attributes the delay to law office failure explaining that the office was unaware that it had failed to serve the summons and complaint due to an error caused by transferring files from an old management system to a new system between 2011 and 2012. In 2013, Plaintiff discovered that it did not possess an affidavit of service relative to this case and a process server was sent to serve Defendant in June of that year. Defendant, to date, has not answered. There is no indication in either the record or the parties’ moving papers that Plaintiff ever moved pursuant to CPLR 306(b) for an extension of time to effectuate service.

Plaintiff claims that the office filed a motion for a default judgment in July of 2014. Plaintiff states that because Defendant was personally served with process on June 5, 2013 and [*2]the affidavit of service was filed on June 6, 2013, it had until July 11, 2014 to move for a default. However, according to Civil Court records maintained for this index number, the motion for a default judgment was filed on August 6, 2014. On that same day, the court issued a “Judgment Rejection Notification.” The reason stated on the notice was “late service.” Plaintiff acknowledges timely receipt of this notice but did not move to cure the defect, claiming that an upgrade in its computer system resulted in the failure to alert a paralegal to draft a motion.

Plaintiff took no further action in this case and, in May of 2017, Plaintiff’s office learned that the action was administratively dismissed by an order of Judge Richard Montelione dated March 30, 2017. The order states:

“[p]laintiff(s) commenced this action to recover assigned first party no-fault benefits. Defendant failed to answer and more than one year had passed. There being no sufficient cause being shown why the complaint should not be dismissed, pursuant to CPLR 3215(c) it is therefore ordered, that the complaint is dismissed.”

Plaintiff now moves to vacate the administrative dismissal arguing that its motion should be granted because the court did not give it prior notice of the impending administrative dismissal. Plaintiff asserts that the court’s failure to give notice deprived the attorneys of an opportunity to be heard. Plaintiff further claims that this lack of notice constitutes its reasonable excuse for the failure to appear on March 30, 2017. Plaintiff also seeks to revive the August 6, 2014 application for a default judgment which it insists the court improperly rejected.

It is noted that the administrative dismissal order of March 30, 2017 was issued pursuant to CPLR 3215(c). The Second Department holds that “CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned … unless sufficient cause is shown why the complaint should not be dismissed’ ” (Myoung Ja Kim v. Wilson, 150 AD3d 1019, 1020 [2d Dept. 2017] quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 AD3d 301, 307—308 [2d Dept. 2011]; see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671 [2d Dept. 2016]).

Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed'” (HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671, quoting CPLR 3215[c]). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764 [2d Dept. 2015]; see Wells Fargo Bank, N.A. v. Bonanno, 146 AD3d 844, 845—846 [2d Dept. 2017]). “‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion [*3]court'” (Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2d Dept. 2014] quoting Giglio v. NTIMP, Inc., 86 AD3d at 308; see U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852 [2d Dept. 2016]). While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure (see CPLR 2005; CEO Bus. Brokers, Inc. v. Alqabili, 105 AD3d 989, 990 [2d Dept. 2013]; HSBC Bank USA, N.A. v. Wider, 101 AD3d 683 [2d Dept. 2012]; Ibrahim v. Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept. 2018]).

Plaintiff’s claim that the court was required to give notice prior to the CPLR 3215(c) dismissal based on Rhodehouse v. CVS Pharmacy, Inc., 151 AD3d 771 (2d Dept. 2017), is erroneous. The dismissal in that case was made pursuant to CPLR 3216, not CPLR 3215(c), which expressly provides that a court may dismiss an action as abandoned “upon its own initiative or on motion” (Ibrahim v Nablus Sweets Corp., 161 AD3d at 961).

This case was properly dismissed, sua sponte, pursuant to CPLR 3215(c) as the case lay dormant in the court system without joinder of issue and without a default judgment against Defendant for over three years. Furthermore, this application must be denied as Plaintiff does not submit an affidavit of merit and the excuse of law office failure is vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus, 140 AD3d at 852; Baruch v. Nassau County, 134 AD3d 658, 659 [2d Dept. 2015]; Mattera v. Capric, 54 AD3d 827, 828 [2d Dept. 2008]; Ibrahim v. Nablus Sweets Corp., 161 AD3d at 963; Private Capital Group, LLC, v. Hosseinipour, 2019 WL 1141605 [2d Dept. 2019]).

This case has been riddled with procedural defects since inception. Although Plaintiff purchased the index number within the statute of limitations on January 26, 2011, the summons and complaint were not served on Defendant until June 5, 2013, over two years later. At no time did Plaintiff move for an extension of time to serve Defendant pursuant to CPLR 306(b) and this defect continues to plague this case. Plaintiff offers no reasonable excuse as to why it filed the motion for a default judgement over one year after Defendant defaulted in answering. It is not clear whether the court rejected the default papers because Plaintiff served Defendant beyond the statutory 120-days of filing without leave of court or because Plaintiff filed the motion late. In either case, it is clear that the court rejected Plaintiff’s default judgment as untimely and no motion was made at that time to cure the rejected papers.

All of the above demonstrates a general pattern of neglect for which Plaintiff has consistently failed to provide a reasonable excuse or otherwise remedy. Considering the history of procedural defects, this court cannot accept Plaintiff’s vague excuse that the implementation of a new case management and computer system were valid reasons for the office failures over the years and, specifically for the failure to timely file for default judgment which led to the administrative dismissal of March 30, 2017

Accordingly, Plaintiff’s motion to vacate the March 30, 2017 order of administrative dismissal pursuant to CPLR 3215(c) is denied and the complaint is dismissed with prejudice.

This constitutes the decision and order of this court.

April 1, 2019
Brooklyn, NY
ENTER
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

723761/17

Attorney for Plaintiff:

David Landfair, Esq.

Kopelevich and Feldsherova

882 Third Avenue, 3rd Fl., Ste Ne1

Brooklyn, New York 11232

Attorney for Defendant:

Jeffrey S. Siegal

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road

Melville, New York 11747

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

Notice of Motion 1, 2

Notice of Cross-Motion

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212, based on plaintiff’s alleged failure to appear for an Examination Under Oath “EUO.”

Defendant received plaintiff’s bills on March 24, 2017; and on March 27, 2017, sent plaintiff a letter scheduling an EUO for April 10, 2017. Defense counsel claims plaintiff failed to appear for the EUO, and that he memorialized the non-appearance by placing a statement on the record.

Defendant states that on April 12, 2017, it sent a follow up letter rescheduling the EUO to April 26, 2017. Plaintiff again failed to appear for the EUO, and defense counsel memorialized the nonappearance on the record.

On May 4, 2017, defendant denied the bills at issue based on plaintiff’s failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.

The appearance of plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, 2006 NY Slip Op 09604 [2nd Dept 2006]); thus, defendant is correct that plaintiff’s failure to appear vitiates insurer’s obligations under the policy (see Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 584 N.Y.S.3d 607 [2nd Dept 1992]).

However, to demonstrate entitlement to summary judgement based on a provider’s failure to appear for an EUO, defendant must prove through admissible evidence, it had twice duly demanded an EUO from the provider, that the provider failed to appear, and defendant issued a timely denial. (See Island Life Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51552[U] [App. Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2nd Dept 2014]).

In the instant matter, defendant argues plaintiff did not attend any of the two EUOs scheduled. However, defendant has the burden to establish, through admissible evidence, that that the EUO scheduling letters, and defendant’s denials, were properly mailed to the plaintiff. (See Parisien v Maya Assur. Co., 59 Misc 3d 146(A), 2018 NY Slip Op 50766(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018]; L.Z.R. Raphaely Galleries, Inc. v Lumbermens Mut. Cas. Co., 191 AD2d 680, 595 N.Y.S.2d 802 [2nd Dept 1993]).

To establish the admissibility of the two scheduling letters, serving as the basis of defendant’s motion, defendant the must prove that the documents were (1) “made in the regular course of defendant’s business” and (2) that “it was the regular course of business of the defendant to make” the documents at the time or within reasonable time after the event reflected in the documents. (See CPLR 4518(a)).

To fulfill the requirements of CPLR 4518 (a), defense counsel states that the EUO scheduling letters were created in the regular course of business of his law firm, which however, satisfies only the first prong of CPLR 4518(a). The second prong of the statute is not satisfied, as counsel does not state or establish that “it was the regular course of his law firm to make” the documents. Further, counsel represents that the letters were created by “an individual with knowledge” without, however, providing any information about the person, the basis of the person’s knowledge, whether the individual was an employee of defense counsel, or created the letters, in the regular course of business of defendant’s law firm. Defendant’s failure to satisfy the requirements of CPLR 4518(a), renders the EUO scheduling letters, inadmissible, and warrants denial of the motion, as defendant fails to establish as a matter of law that it timely requested the EUOs.

Had defendant established the evidentiary foundation of the EUO letters, it’s motion would still be denied, as it further fails to establish that the EUO scheduling letters were properly addressed and mailed to the plaintiff.

To establish entitlement to summary judgment, defendant must prove that it had a procedure designed to ensure that the EUO letters and denials were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 [*2]AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept 2015]).

In the case at bar, defense counsel states that an individual affixes “the proper postage to the envelope containing the EUO request letter.” However, the statement is conclusory, as counsel provides no information as to whether the envelopes are addressed by a computer, machine, and/or by an employee; how the envelopes are addressed to ensure the accuracy of the recipient’s address, and the method by the envelopes are weighed and affixed with proper postage. Accordingly, defendant fails to establish its proper mailing of the EUO scheduling letters.

With respect to the mailing of the denials, defendant’s claims adjuster states they were properly mailed to the plaintiff, as the “recipient’s address” is printed on the denial, and on the envelope containing the denial.

However, the claims adjuster fails to provide any information as to how and by whom the names and the proper addresses of the recipient, are obtained and printed on the denial, and on the envelope containing the denial. Nor does defendant’s adjuster establish that defendant’s mailing practices are designed to ensure that the envelopes are correctly addressed. Thus, defendant’s motion is further denied as defendant failed to show that it correctly addressed the denials to the plaintiff.

In addition, there is no evidence establishing that defendant affixed proper postage on the envelopes bearing the denials. Defendant’s claims adjuster concludes that proper postage is “applied” to the envelopes containing the denials, but fails to provide any information regarding the individual, if any, who applies the postage, whether the postage is applied by a computer, a machine, or the method by which proper postage is determined.

Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing defendant’s proper mailing of the EUO scheduling letters and denials. As defendant did not establish its entitlement to summary judgment, irrespective of the sufficiency of plaintiff’s opposition (see Alverez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), its motion is denied.

Dated: March 28, 2019

_________________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

CV-735802/17

Attorney for plaintiff
Damin J. Toell, Esq,.
Law Offices of Damin J. Toell P.C.
P.O BOX 245112
Brooklyn, New York 11224

Attorney for defendant
Desiree Ortiz Esq.,
Robyn M. Brilliant P.C.
333 West 39th Street, Suite 400
New York, New York 10018

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action by a provider to recover assigned first-party no-fault benefits for breach of contract, defendant moves for an order dismissing the action pursuant to CPLR 3211(10) for failure to join a necessary party, or in the alternative, an order extending defendant’s time to interpose an answer pursuant to CPLR 2004.

Defendant claims that the assignor, Mikhail Soldatov, while operating his own vehicle, was involved in a motor vehicle incident with another vehicle, resulting in injuries which were treated by the plaintiff.

Defendant moves to dismiss the complaint based on plaintiff’s failure to join a necessary party, which defendant argues is the insurance carrier for Soldatov’s vehicle. Defendant contends that it never issued a liability insurance policy to Mr. Soldatov, but that it was the insurer of the [*2]other vehicle involved in the accident. Defendant argues that since Mr. Soldatov was not an occupant of the vehicle insured by defendant, defendant has no duty to provide Mr. Soldatov no fault coverage.

In opposition, plaintiff contends that the Court lacks subject matter jurisdiction to hear the defense that an insurance carrier other than the defendant is responsible for plaintiff’s claims. The defense, as per plaintiff, involves the priority of payment of insurance carriers, which must be resolved by arbitration, pursuant to 11 NYCRR 65-4.11(a)(6), which states “Any controversy between insurers involving the responsibility or obligation to pay first part benefits is not a coverage questions and must be submitted to mandatory arbitration.”

Plaintiff’s claim that the court lacks jurisdiction is unavailing. The priority of payment among insurance carries, applies to an applicant who is an “eligible injured person” under applicable insurance policies including defendant’s policy.

In the case at bar, plaintiff’s counsel submits no evidence that Mr. Soldatov’s vehicle was insured by defendant, or that Mr. Soldatov is otherwise entitled to receive no fault coverage from the defendant. Absent evidence that Soldatov is an “eligible injured person” under defendant’s policy, the priority of payment analysis under 11 NYCRR 65-4.11(a)(6) is not triggered or applicable herein.

In contrast, defendant provides an affidavit which unequivocally states it never insured the vehicle owned and operated by Mr. Soldatov. Defendant contends that the insurer of the Soldatov vehicle at the time of the incident, not the defendant, is the carrier responsible for providing Soldatov no-fault benefit. (See 11 NYCRR 65.1(d)(c), a person not an occupant of the vehicle defendant insured at the time of the incident, is not an “eligible injured person” under defendant’s policy).

A party may move for a judgment dismissing the action on the ground that the court should not proceed in the absence of a person who should be a party. (see CPLR 3211). In the instant action, defendant has submitted evidence that it did not insure the Soldatov vehicle.

However, plaintiff argues that defendant’s claim that another carrier insured the vehicle occupied by Soldatov at the time of the incident must be rejected, as the claim is based on the an uncertified, police report, which is an inadmissible hearsay. Absent the police report, plaintiff argues, defendant would have no basis to conclude that Soldatov occupied his own vehicle at the time of the incident.

While a police report is inadmissible unless the report constitutes a hearsay exception. (see Memenza v Cole, 131 AD3d 1020), a report based on the officer’s personal observations in carrying out her duties, is admissible as a business record (CPLR 4518 (a); Wynn v Motor Veh Acc Indem Corp 137 AD3d 779 [2d Dept 2016]).

In the case at bar, the police officer was under a business duty to obtain the names of the owners and occupants of the vehicles involved in the incident, which we can infer were based on the police officer’s observation. However, as the police report annexed to defendant’s motion is not uncertified, it is inadmissible. (See CPLR 4518 (c) a police report may be admitted as proof of the facts recorded therein only if it is certified).

Although the police report may not be admitted into evidence (CPLR 4518 (c)), the Court notes that plaintiff has not presented any evidence to dispute the truthfulness of the officer’s presumed observation that Soldatov was the operator of his own vehicle at the time of the incident. (See Wynn v Motor Veh Acc Indem Corp 137 AD3d 779; Clear Water Psychological Servs. PC v American Tr. Ins. 54 Misc 3d 915). Accordingly, defendant’s motion to interpose an [*3]answer is granted.

In its reply, defendant further argues that plaintiff did not provide it with written notification of the incident. Under 11 NYCRR 65-1.1(d), coverage is precluded absent written notification of the accident by the assignor or her representative within 30 days after the incident.

However, defendant’s motion is based on plaintiff’s failure to sue the proper party and failure to join a necessary party, and not on violation of the requisite 30-day rule. Accordingly, the court will not consider the above argument, as same is raised in defendant’s reply (Matter of Forest Riv., Inc. v Stewart, 34 AD3d 474 [2006]) and is further, not enumerated as a basis of defendant’s instant motion to dismiss.

Based on the foregoing, defendant’s motion is granted to the extent that defendant may interpose an answer within 30 days, raising all applicable defenses.

Dated: March 22, 2019
Brooklyn, New York
_______________________
HON. ODESSA KENNEDY
Judge of the Civil Court

CV-707232-16/QU

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

Counsel for Plaintiff

Andrew J. Dowd, M.D.

As Assignee of Audra Fulton

3361 Park Avenue, Suite 1000

Wantagh, New York 11793

Joseph J. Padrucco, Esq.

LAW OFFICES OF KAREN L. LAWRENCE

Counsel for Defendant

Allstate Insurance Company

1225 Franklin Avenue, Suite 100

Garden City, New York 11530

Marie-Ann Inguanti, Esq.

I.Background

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

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

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

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

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

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

II.Discussion

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

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

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

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

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

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

[*4]III.Conclusion

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

This constitutes the decision and order of the Court.

Dated:March 11, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

[*1]

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

APPEARANCES OF COUNSEL

Johnnie Gordon, plaintiff pro se.

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

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

CPLR 5525 (c) (1) provides that

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

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

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

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

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

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

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

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

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

“(Plaintiff) Okay.

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

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

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

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

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

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

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

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

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

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

Footnotes

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

714648/16

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

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

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

Title Number

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

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

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

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

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

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

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

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

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

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

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

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

This constitutes the Decision and Order of the court.

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

Footnotes

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

718659/17

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

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

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

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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