[*1]

Civil Court of the City of New York, New York County, August 14, 2014

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Shana Slawitsky of counsel), for defendant.

Gary Tsirelman P.C., Brooklyn (Irena Golodkeyer of counsel), for plaintiff.

Plaintiff brought this no-fault benefits action seeking {**45 Misc 3d at 759}reimbursement for $844.13 for medical services rendered to assignor, Jacques Gladys. Plaintiff submitted to defendant one bill for date of service May 31, 2011. Defendant denied the claim on the basis that the medical provider failed to appear for two scheduled examinations under oath (EUOs).

Defendant moves for summary judgment under CPLR 3212 on the ground that the medical provider failed to appear for two scheduled EUOs and, thus, that plaintiff breached a condition precedent to coverage. Plaintiff’s most persuasive argument in opposition is that defendant failed to prove the provider’s nonappearance for the EUOs. Plaintiff argues that Michael Sirignano’s affirmation is insufficient because, plaintiff argues, he has no personal knowledge of the provider’s nonappearance for the EUOs. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Without moving for disclosure, plaintiff seeks disclosure about defendant’s special investigation unit (SIU) file and its SIU investigation and claims practices before, it urges, it can properly oppose defendant’s summary judgment motion. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 16.)

After oral argument, the court asked the parties to submit memorandums of law about whether Sirignano’s affirmation comports with an Appellate Term, Second Department decision: Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Mar. 21, 2013]). Since oral argument, only defendant submitted a memorandum of law on this issue.

In Alrof, the court determined that the “affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff.” (Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.) The court held that “[i]t is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR 3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment.” (Id. at *1-2.)

The proof the Alrof court considered was an affidavit from Vincent F. Gerbino, a partner at Bruno, Gerbino & Soriano, LLP. In his affidavit, Gerbino states that he has “personal knowledge of the facts at issue . . . based on [his] review of the file and [his] knowledge of office practices and procedures.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino states that {**45 Misc 3d at 760}the “office mailed correspondence to Jonathan Rosario [the assignor] notifying that he was scheduled for an EUO on July 18, 2008, at 10:00 AM. He did not appear on this date. Therefore, . . . this office . . . re-scheduled . . . [the] EUO on July 30, 2008, at 1:00PM.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino thus states that “Jonathan Rosario failed to appear at both . . . EUO’s.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.)

Since Alrof, the court revisited the issue of the sufficiency of an attorney’s affirmation to prove nonappearance at EUOs in Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013 NY Slip Op 51123[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, July 5, 2013]). In Bright Med., the court held the court below properly denied defendant’s summary judgment motion because “defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question.” (Id., citing Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.)

The proof the Bright Med. court considered was the affirmation of Michael A. Callinan. (Defendant’s reply affirmation, exhibit 9.) Callinan states that the

“EUO for July 14, 2009, was scheduled at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747. I was present at your affiant’s office . . . on July 14, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶¶ 15-16.)

Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff failed to appear for a scheduled EUO on July 14, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan’s office scheduled the second EUO on August 10, 2009. (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan states that he “was present at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747, the location of the scheduled EUO, on August 10, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said [*3]EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff, Bright Medical Supply Co., failed to appear for a scheduled EUO on August 10, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.)

{**45 Misc 3d at 761}Since Bright Med., the court determined that the affirmation of defendant’s attorney “who was present in his office to conduct plaintiff’s EUO on the scheduled dates . . . was sufficient to establish that plaintiff had failed to appear.” (Natural Therapy Accupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Jan. 28, 2014].) In Natural Therapy, the court considered the affirmation of Elizabeth Adels, a partner at McDonnell & Adels, PLLC. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 1.) Adels states that on “April 29, 2010, Plaintiff was scheduled to submit to an EUO . . . . I was present in the office on this date in order to conduct the EUO of Plaintiff. No one affiliated with Plaintiff appeared for the EUO scheduled for April 29, 2010.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states that defendant rescheduled the EUO for May 25, 2010. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states

“I was present in the office on this date in order to conduct the rescheduled EUO of plaintiff. Once again, no one affiliated with Plaintiff appeared for the EUO rescheduled for May 25, 2010. If Plaintiff had appeared for the scheduled EUOs, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.)

This court must decide whether Michael Sirignano’s affirmation is sufficient, under Alrof and its progeny,^[FN*] to prove the provider’s nonappearance for the EUOs. Also, this court must also determine whether Sirignano has personal knowledge of the provider’s nonappearance at the EUOs.

Sirignano’s affirmation is sufficient to prove the provider’s nonappearance for the two EUOs. Sirignano has personal knowledge of the provider’s nonappearance at the EUOs. Sirignano states the following:{**45 Misc 3d at 762}

“3. On July 27, 2011, plaintiff was scheduled to submit to an EUO at the offices of Rivkin Radler located 926 RXR Plaza, Uniondale, New York 11556, at 10:00 o’clock in the forenoon of that day [sic]. I was present in the office on this date. No one affiliated with the Plaintiff appeared for the scheduled EUO. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO [*4]of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.

“4. Thereafter, State Farm rescheduled the EUO for August 30, 2011. I was present in the office on this date. Again, no one affiliated with the Plaintiff appeared for the scheduled EUO on August 30, 2011. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶¶ 3-4.)

Sirignano has personal knowledge: He was present on both dates, July 27, 2011 and August 30, 2011. Plaintiff did not appear on either date. Like the attorney in Natural Therapy, Sirignano was present on both dates that plaintiff was scheduled for the EUO. Had plaintiff appeared, Sirignano would have conducted plaintiff’s EUO. Or, he would have assigned one of the other attorneys responsible for conducting EUOs to conduct plaintiff’s EUO.

Unlike the attorney in Alrof who explained in conclusory language that plaintiff failed to appear for EUOs, Sirignano explains his basis for knowing that plaintiff failed to appear for two EUOs.

Sirignano does not equivocate like the attorney in Bright Med. did: “I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Sirignano states that “[i]f Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶ 4.)

Plaintiff argues that Sirignano’s “potential assignment [of plaintiff’s EUO] diminishes [his] credibility as to his personal knowledge that no one affiliated with Plaintiff appeared for the{**45 Misc 3d at 763} scheduled EUOs.” (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano’s statement does not diminish his credibility, in fact it highlights his credibility.

Plaintiff’s other arguments are also unpersuasive. That the EUO scheduling letters indicate that the EUOs were scheduled at Rivkin Radler LLP’s office in Uniondale, New York, “Attn. Barry Levy, Esq.” is of no consequence. (See notice of motion, exhibit 1.) Plaintiff’s argument—that based on the EUO letters Barry Levy, Esq. was the attorney who would conduct the EUO—is misplaced. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano states that he was responsible for plaintiff’s EUO.

That the EUO scheduling letters indicate that the plaintiff call “JUDY AUBIN . . . no later than seven days prior to this examination to confirm your attendance” is also of no consequence. Sirignano states that he was responsible for plaintiff’s EUO. In any event, plaintiff does not allege that it attempted to confirm the EUO appointments with Ms. Aubin or anyone else at Rivkin Radler LLP.

Nor is it significant that Sirignano does not describe the “check-in procedure that is followed by the law firm regarding EUO attendance.” (Golodkeyer affirmation, Sept. 12, [*5]2013, ¶ 25.) Sirignano need not describe the firm’s check-in procedure for EUOs. Sirignano need only demonstrate, through his personal knowledge, that the plaintiff failed to appear for two scheduled EUOs.

Plaintiff did not respond to defendant’s request for EUOs. (See Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists, Dec. 20, 2013] [“(P)laintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs . . . defendant is entitled to summary judgment”], citing Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011].)

Plaintiff’s request for defendant’s special investigation unit file, the SIU investigation, and its claims practices is not necessary to oppose defendant’s summary judgment motion: “Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard . . . and therefore discovery relevant to the {**45 Misc 3d at 764}reasonableness of the EUO requests was not necessary to oppose the motion.” (Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 39 Misc 3d 142[A], 2013 NY Slip Op 50763[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, May 6, 2013], citing CPLR 3212 [f] and Crescent Radiology, 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1; Natural Therapy, 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1.) Plaintiff did not respond to defendant’s EUO requests; therefore, plaintiff cannot now object to defendant’s EUO requests. Also, plaintiff did not move to compel disclosure. Plaintiff’s request, raised only in its opposition papers, is denied.

Defendant proved that it timely and properly mailed the EUO letters to plaintiff. Defendant proved that plaintiff failed to appear for the EUOs on July 27, 2011, and August 30, 2011. Defendant also proved that it timely and properly mailed the denial, NF-10, to plaintiff.

Plaintiff’s counsel’s affirmation, coming from an individual without personal knowledge, has no probative value. Plaintiff’s counsel’s affirmation creates no material issue of fact for trial.

Defendant’s motion is granted.

Footnotes

Footnote *:One of the cases defendant attaches to its memorandum of law pre-dates Alrof. (Exhibit 1, Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 130[A], 2012 NY Slip Op 51276[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Also, in the cases defendant attaches on the Alrof issue—the sufficiency of an affirmation or affidavit to demonstrate personal knowledge of the assignor’s or the provider’s nonappearance at an EUO—the parties never raised the Alrof issue on appeal. (Exhibit 4.)

Civil Court of the City of New York, Richmond County, June 24, 2014

APPEARANCES OF COUNSEL

Cassandra & Gullo, PLLC, Brooklyn (Dominick Gullo of counsel), for plaintiff.

Law Offices of James F. Sullivan, P.C., New York City (Eric Wahrburg of counsel), for defendant.

Plaintiff Forest Rehabilitation Medicine PC commenced the instant action against defendant [*2]insurance carrier to recover $3,490 in payment for the rendering of first-party no-fault medical benefit services to its assignor, Tracy Fertitta, pursuant to article 51 of the Insurance Law. The sole issue for this court’s determination is the medical necessity of “Calmare pain therapy,” also known as “scrambler therapy,” a relatively new and controversial form of treatment that has divided the medical field. Indeed, after a review of the testimony adduced at trial and the exhibits admitted in evidence, the apparent first impression question that must be determined is whether this form of therapy is merely another form of “junk science,” or a revolutionary form of pain management that demands and deserves acceptance.

Background

A bench trial was held before this court on February 10, 2014. Due to scheduling difficulties, said trial continued and culminated on May 14, 2014. Prior to the commencement of testimony, the parties stipulated to the establishment of plaintiff’s prima facie case, noting that defendant issued a timely denial of the claims asserting medical necessity as its defense. Additionally, the parties stipulated to various exhibits being admitted in evidence, including the claim forms, treatment records, medical records, defendant’s denials, and the peer review of Dr. Ayman Hadhoud. Neither party requested a Frye hearing, pursuant to Frye v United States (293 F 1013 [DC Cir 1923]).

The assignor, Tracy Fertitta, 35 years of age, was involved in a motor vehicle accident on May 12, 2011. Subsequent to the accident, she complained of pain in her neck, right arm, lower back, right leg, right shoulder and right knee. She eventually came under the care of Dr. Christopher Perez, M.D., a founding partner along with Jack D’Angelo, M.D., of plaintiff Forest Rehabilitation Medicine PC. Dr. Perez’s diagnosis relevant to the instant action was essentially right sided cervical and lumbar radiculopathy. His examination of Ms. Fertitta’s cervical spine, lumbosacral spine and right shoulder revealed tenderness and limited range of motion in all three areas. Consequently, Dr. Perez ordered an EMG of the upper extremities, advised Ms.{**44 Misc 3d at 478} Fertitta to engage in a course of physical therapy, to perform various home exercises, and to take analgesics as necessary. On December 21, 2011, Ms. Fertitta met with Dr. Perez to discuss the potential efficacy of treatment utilizing MC-5A Calmare pain therapy to treat her lumbar and cervical regions.

While the witnesses proffered by both plaintiff and defendant attempted to explain the specifics of the subject therapy, the court found a more precise explanation contained in a document entitled “Letter of Medical Necessity for Scrambler Therapy data submission based on New York State Insurance Commission Guidelines and insurance carrier requirements,” contained in a packet of documents admitted into evidence as plaintiff’s exhibit No. 1. Said document was prepared presumably for insurance purposes.

Under the phrase “Technology Description,” it states:

“[T]he MC-5A, using Scrambler Therapy Technology, Calmare Pain Therapy Treatment is a non-invasive method for rapid treatment of high-intensity oncologic, neuropathic, and drug resistant pain through a biophysical rather than a biochemical manner. The method incorporates a multiprocessor apparatus for electronic nerve stimulation, and uses the nerve fibers as a passive means to convey a message of normality to the nervous system by a procedure defined as scrambling or tricking of information, which then enables the nervous system to modify the reflex adaptive responses—referred to as TEMPR—Transcutaneous Electrical Modulation Pain Reprocessor . . . . In neuropathies there are [*3]complex reactions that modify the homeostatic equilibrium of pain system. In such a context, the Scrambler Therapy (ST5) interferes with the pain signal transmission, by mixing ‘non-pain’ information into the nerve fibers. The ST5 consists of a multiprocessor apparatus able to stimulate 5 artificial neurons by the application of surface electrodes on skin pain areas.”

The subject assignor, Ms. Fertitta, received one treatment on each of the following days: December 12, 2011, December 13, 2011, December 14, 2011, December 15, 2011, December 16, 2011, December 19, 2011, December 20, 2011, December 21, 2011, December 22, 2011 and December 23, 2011. The billed amount for each day was $349. The treatments were submitted to Allstate under code 64999, which is the category utilized for an “unlisted neurological procedure.”

{**44 Misc 3d at 479}Defendant called Dr. Ayman Hadhoud, a board certified specialist in the field of physical medicine and rehabilitation, as its sole witness. Initially, Dr. Hadhoud explained that the name “Calmare” is the name of a scientist responsible for the development of this therapy, whose name was then adopted by the manufacturer as the name for the particular mechanical device used in conjunction with the administration of the subject treatments. The court takes judicial notice that in the Italian language, the term “calmare” means “to soothe.” Dr. Hadhoud also testified that this subject course of treatment has mainly been used in treating patients receiving chemotherapy, a fact which he felt rendered it inapplicable in a clinical context. Thus, he testified that he reviewed all the available data concerning the treatment of Ms. Fertitta as a result of the accident, and concluded that the Calmare scrambler pain therapy treatment was not medically necessary. He also indicated that he found the subject treatment medically questionable in that Ms. Fertitta’s symptoms could be appropriately and sufficiently treated with basic physical therapy, and that pain and inflammation relief could easily be achieved with the use of regular oral analgesics.

Additionally, Dr. Hadhoud testified that because a no-pain message is transmitted to the nerve via the application of electrodes to the skin in close proximity to the area of pain, the subject treatment is merely just another form of physical therapy, wherein the primary goal is to reduce pain and inflammation. Thus, the numerous mechanisms, i.e., whirlpool, heat, and electric stimulation, which are regularly applied in physical therapy sessions would clearly be preferable and cheaper forms of treatment. Moreover, Dr. Hadhoud opined that since Calmare scrambler pain therapy is essentially physical therapy, any bills generated from its usage should be included in a fixed physical therapy fee.

Lastly, and most importantly, Dr. Hadhoud recited the definition of “medical necessity,” promulgated by the American Medical Association Policy Statement H-320.953 (Oct. 2000):

“services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, or treating an illness, injury, or its symptoms in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site, and duration; and (3) not{**44 Misc 3d at 480} primarily for the convenience of the patient, physician, or other health care provider.”

In response to Dr. Hadhoud’s testimony, plaintiff called a rebuttal witness, Jack D’Angelo, M.D., whose area of expertise is also physical medicine and rehabilitation. Dr. D’Angelo testified that Calmare scrambler pain therapy can be simplistically described as a computerized device which uses a biophysical in lieu of a biochemical approach. A “no pain” message is transmitted to the nerves via disposable surface electrodes applied to the skin in the area of the patient’s source of [*4]pain. Scrambler therapy synthesizes 16 different types of nerve patterns which override chronically aberrant signals of chronic pain with normal signals emanating from the brain. Hence, the no-pain message replaces the pain message, essentially cancelling out the pain message.

Dr. D’Angelo further testified that the goal of said therapy is to reduce a patient’s level of pain to a zero level/zone. Dr. D’Angelo conceded the fact that this type of therapy is essentially new. Nevertheless, he emphatically asserted that it has gained wide acceptance in the medical community, and has received approval by the Food and Drug Administration (FDA), for use in chemotherapy induced neuropathy as well as diabetic neuropathy. Moreover, he testified that the Calmare device has also been a European CE marked certified pain therapy medical device for the noninvasive treatment of neuropathic and oncologic pain. Dr. D’Angelo also testified that one third of Calmare devices are currently being utilized by the military, and independent studies are in the process of being conducted by the Mayo Clinic as well as Stanford University. More responsive to the concept of no-fault benefits, he testified that said device has also been approved by the Workers’ Compensation Medical Fee Schedule on a case by case basis.

Dr. D’Angelo explained that with scrambler therapy, the usual protocol is to start with 10 45-minute treatments applied to the “problem area.” He testified that Ms. Fertitta’s pain level was closely monitored after each session. When she initially began treatment, her pain level was five to six. However, upon the completion of said therapy, her pain level had actually been reduced to a three. It should be noted that Dr. D’Angelo conceded that it was too early to be able to render an opinion as to the potential long-term benefits of Calmare scrambler therapy.{**44 Misc 3d at 481}

Conclusions of Law

A denial of no-fault coverage premised on a lack of medical necessity must be supported by competent evidence, such as an independent medical examination or peer review, or other proof, which sets forth a factual basis and a medical rationale for denying the claim (see Healing Hands Chiropractic, P.C. v Nationwide Assur. Co., 5 Misc 3d 975 [Civ Ct, NY County 2004]; Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]).

Where a plaintiff provider proves that it timely submitted completed no-fault claim forms setting forth the facts and amount of the loss sustained, and that payment of the no-fault benefits are overdue, the provider establishes a prima facie case of medical necessity (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). However, “[w]here the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity” (2006 NY Slip Op 51871[U], *2, citing Prince, Richardson on Evidence §§ 3-104, 3-202 [Farrell 11th ed 1995]; see also Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

It has been held that a peer review’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards or generally accepted practice (see Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]; CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608 [Civ Ct, Kings County 2004]; Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values [*5]that define its calling” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co. at 616).

In the instant case, the court finds that despite the fact that Dr. Hadhoud’s expert testimony included a factual basis and a medical rationale for his opinion, this is insufficient to establish a lack of medical necessity for the Calmare pain therapy rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. v Maryland Cas. Co., 32{**44 Misc 3d at 482} Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). It seems that Dr. Hadhoud’s main problem with Calmare pain therapy is that it is not cost effective.

The court, despite extensive research, was unable to locate any reported cases involving the issue of the medical necessity of Calmare scrambler therapy. In order to ascertain the medical necessity of Calmare scrambler therapy, the court must determine if it is generally accepted as reliable science.

The Court in Marsh v Smyth (12 AD3d 307, 310 [1st Dept 2004]) instructed that

“[t]he important purpose of the Frye test is to ensure that courts do not rely upon an expert’s testimony regarding a novel procedure, methodology or theory unless it has been ‘generally accepted’ within the relevant scientific community as leading to reliable results (see People v Angelo, 88 NY2d 217, 223 [1996]). The focus of the Frye test is to distinguish between scientific principles which are ‘demonstrable’ and those which are ‘experimental’ (see People v Wesley, 83 NY2d 417, 422 [1994], quoting Frye, 293 F at 1014). The Wesley court went on to emphasize that ‘the particular procedure need not be “unanimously indorsed” by the scientific community but must be “generally acceptable as reliable” ’ (83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981])” (see also Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 56 [2d Dept 2011]).

Therefore, this court in applying the Frye standard finds that the evidence presented by the experts regarding Calmare scrambler therapy is reliable.

The court is not unduly concerned by the fact that Dr. D’Angelo testified that he could not comment with any semblance of certainty as to the long-term effects of Calmare scrambler therapy treatments. Nor is the court unduly concerned with the current lack of information concerning the potential adverse effects of prolonged treatments. It is common knowledge that most if not every type of medication on the market has potential adverse side effects. Indeed, every commercial on television advertising medication for various ailments comes replete with unnerving warnings about the potential adverse side effects of said medication. After viewing some of these commercials, one has to wonder if the ailment might not be preferable to the cure.{**44 Misc 3d at 483}

In all frankness, the court is fascinated with the entire concept of Calmare scrambler therapy. It has found that the Calmare device is approved by the FDA for marketing in the United States. According to the official FDA website, an FDA 510 (k) classification essentially clears a medical device for commercial distribution. For a medical device to be approved by the FDA, pursuant to 21 USC § 360c (a) (3) (A):

“the effectiveness of a device is, for purposes of this section . . . to be determined, in accordance with regulations promulgated by the Secretary, on the basis of well-controlled investigations, including 1 or more clinical investigations where appropriate, by experts qualified by training and experience to evaluate the effectiveness of the device, from which investigations it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to [*6]have under the conditions of use prescribed, recommended, or suggested in the labeling of the device.”

Furthermore, 21 USC § 360c (a) (3) (B) provides:

“If the Secretary determines that there exists valid scientific evidence . . .

“(i) which is sufficient to determine the effectiveness of a device, and

“(ii) from which it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling of the device,

“then, for purposes of this section . . . the Secretary may authorize the effectiveness of the device to be determined on the basis of such evidence.”

Additionally, the FDA, pursuant to 21 USC § 360c (a) (3) (A) and (B), also requires the individual or entity seeking approval of a device to provide adequate, well-controlled investigations which include clinical investigations by qualified experts who, by possessing the necessary training and expertise, can conclude that the device in question will have the effect it purports to have when used as directed (see also 21 USC § 355 [d] [setting forth the “substantial evidence” required for approval of a new drug]).

The court finds unavailing the fact that no specific evidence that Calmare scrambler pain therapy is widely accepted in the medical field for the treatment of neurological pain has been{**44 Misc 3d at 484} presented. The court notes that no real evidence of nonacceptance has been presented. What is significant and noteworthy is that evidence of independent testing was presented which demonstrated that Ms. Fertitta’s pain level decreased following the administration of Calmare scrambler pain therapy treatments.

The court certainly recognizes that anything new, whether it be a mechanical device or a scientific theory, will inevitably have “kinks” which need to be worked out over time. However, this fact should not fuel any unreasonable fear or disapproval of a device which has the potential to literally revolutionize how the medical field addresses and combats chronic pain.

Therefore, in consideration of this, the court finds no reason to deny the instant claim for reimbursement. The court finds that Calmare scrambler therapy, in the instant action, was a medical necessity for Ms. Fertitta’s pain management.

Accordingly, it is hereby ordered that judgment in the amount of $3,490, in addition to attorney’s fees and statutory interest, is awarded to plaintiff Forest Rehabilitation Medicine PC as assignee of Tracy Fertitta.

Civil Court of the City of New York, Kings County

064253-11KI

Attorneys for Plaintiff:

The Rybak Firm, PLLC.

1506 Kings Highway, 2nd Fl

Brooklyn, NY 11229

Attorney for Defendant

Conway, Farrell, Curtin & Kelly, P.C

48 Wall Street

Woodbury, New York 10005

Katherine A. Levine, J.

Plaintiff Canarsie Chiropractic, P.C. (“plaintiff” or “Canarsie Chiropractic”), a medical services company, brings this action pursuant to Insurance Law § 5106(a) to recover monies for medical services provided to its assignor Harry Brenton (“assignor” or “Brenton”), a New York resident, for injuries he allegedly suffered in an automobile accident in New York. The car’s owner, Adama Ndiaye (“Ndiaye”), obtained the insurance policy for the car at issue, as well as for additional cars he owned in Michigan from Defendant Auto Club Insurance Association AAA Michigan (“Auto Club” or “defendant”). Per the policy, the cars were to be driven and principally garaged in that state. [*2]

After several vehicles that Ndiaye owned and insured with Auto Club were involved in auto accidents in New York between 2007 and 2009, the defendant initiated its investigation into Ndiaye’s place of residence. The investigation revealed that Ndiaye was in fact operating a commercial taxi/livery cab service in New York with the insured vehicles, in violation of the insurance policy term mandating that the vehicles be garaged in Michigan. cab service in New York and that all the vehicles were principally garaged in New York. Auto One thereupon obtained a default judgment from the Michigan Circuit Court, Auto Club Ins. Co. v Adama Ndiaye, C/A No: 10-758-CK (Hon. Timothy P. Connors) declaring the policy void ab initio and that plaintiff Auto One was “neither bound by, nor liable to [Ndiaye] or any other person or entity, whether known or unknown, under any contractual provision [of the policy].”

Auto Club moves for summary judgment on the ground that Michigan law applies, since the underlying no fault policy was procured and issued in Michigan to a Michigan resident. Plaintiff opposes the motion and argues that New York law applies since Auto One does business in New York. A conflict of law issue exists since Michigan law voids the policy ab initio when there is fraud in the procurement of the policy where as New York law does not permit an insurance policy to be cancelled retroactively. See, Mtr. of Allstate Ins. Co., (Stolarz), 81 NY2d 219 (1993); Jiminez v. Monadnock Constr., Inc., 109 AD3d 514 (2d Dept. 2012).

In Michigan, the various doctrines of fraud do not require the party asserting fraud to have investigated all assertions and representations made by its contracting partner as a prerequisite to establishing fraud. Titan Ins. Co. v. Hyten, 491 Mich. 547, 557 817 N.W.2d 562 (2012). Rather, the party asserting fraud has a plethora of legal and equitable remedies, including the right to “retroactively avoid contractual obligations through traditional remedies such as cancellation, rescission or reformation.” Id at 558. Therefore, Michigan has long held that an insurer can rescind a policy and declare it void ab initio as against an insured who seeks benefits when the insured procured the policy through fraud, even where the fraud was easily ascertainable. Titan Ins. Co. Supra, 491 Mich. At 555. See also Jackimowicz v. Citizens Ins. Co. of America, 2011 Mich. App. LEXIS 396 (Mich. Ct. App. 2011); Hammoud v. Metropolitan Property and Casualty Ins. Co., 222 Mich. App. 485, 488, 563 N.W.2d 716, 718 (1997).

In Titan, supra, the Michigan Supreme Court definitively ruled that an insurer could avail himself of these equitable principles to avoid liability under an insurance policy on the ground of fraud in the procurement notwithstanding that “the fraud might have been easily ascertainable…and the claimant was a third party.” 491 Mich. At 562. The Court reversed precedent which found that the public policy of the state recognizing the right to reimbursement under the no fault law trumped the common law which enabled insurers to obtain traditional forms of relief when they were victims of fraud and that third parties needed to protected. Id at 565- 569. Rather, “(t)hird-party victims of automobile accidents have a variety of means of recourse under the no-fault act (including tort actions), and it is to those means that such person [*3]must look.” Id at 565.

In New York, both the common law and the Insurance Law permit an insurance carrier to rescind and or void an insurance policy where a material misrepresentation was made at the time of the procurement of the policy. Stracar Medical Services v. Nationwide Mut. Ins. Co., 2013 NY Slip Op 50633(U), 39 Misc 3d 1216(A) (Civil Ct., Kings Co. 2013). See, Kiss Construction NY Inc. v. Rutgers Casualty Ins. Co., 61 AD3d 412 (1st Dept. 2009); Ins. Law §3105. However, VTL §313 (1) (a), which prohibits the termination of a contract of insurance until after the insurer mails a notice of termination to the insured, “supplants an insurance carrier’s common law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively.” Liberty Mut. Ins. Co. v. McClellan, 127 AD2d 767 (2d Dept. 1987). See, Mtr. Of Met Life Auto & Home v. Aguedelo, 8 AD3d 571, 572 (2d Dept. 2004). This section thus “places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence.” Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000). However, only innocent third parties who are injured are protected and “not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured’s no-fault benefits.” Mtr of Met life, supra, 12 Misc 3d at 11-12.

The insurance carrier may assert as an affirmative defense that the insured misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured. A.B. Medical Services PLLC v. Commercial Mutual Ins. Co., 12 Misc 3d 8,11-12 (App. Term, 2d Dept. 2006). The defense of fraudulent procurement of an insurance policy is nonwaivable and hence exempt from the 30-day procurement rule, and may be asserted as against health care providers who seek to recover assigned benefits from the insured. AB Medical Services, supra, 12 Misc 3d at 11-12. The insurance company may also bring an action against its insured to recover any losses it incurred by paying benefits under the policy to the innocent third party. Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000).

Here, the assignor was an innocent third party as he was a passenger in a livery car owned by the insured and played no role in the insured’s fraudulent misrepresentation. Therefore, plaintiff health care provider, which stepped into the shoes of the assignor, is an innocent third party in the instant matter.

Traditionally, conflict of law questions relating to contracts were resolved by application of the law of the jurisdiction where the contract was made or was to be performed.” Mtr. of Eagle Ins. Co v. Singletary, 279 AD2d 56, 59 (2nd Dept. 2000). New York has long recognized the use of center of gravity or groupings of contacts as the appropriate analytical approach to choice of law questions in contract cases. Mtr of Midland Ins. Co., 16 NY3d 536 (2011) citing Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317, 319 (1994). This grouping of [*4]contacts approach establishes which State has the most significant relationship to the transaction and the parties, and allows that state “paramount control over the legal issues arising out of a particular factual context.” Mtr of Midland Ins. Co., supra, 16 NY3d at 543; Jiminez v. Monadnock Constr. Inc., 109 AD3d 514, 516 (2d Dept. 2013). Significant contacts include the place of contracting, negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties. Mtr. of Allstate Ins. Co. supra, 81 NY2d at 227; Jiminez, supra at 516; Mtr. Of Eagle Ins. Co. v. Singletary, 279 AD2d 56, 58-59 (2nd Dept. 2000).

In the context of liability insurance contracts, the courts look to the law of the state which the parties understood was to be the principal location of the insured risk. Mtr of Midland Ins. Co. supra 16 N.Y.3rdat 544; Eagle v. Singletary, supra, 279 AD3d at 59; Conflict of Laws § 193. The principle location of the insured risk will be deemed to be the state where the insured is incorporated, domiciled and has its principal place of business. Midland, supra, 16 NY2d at 544. In the case of a noncommercial vehicle insurance, the principal location of the insured risk is the place where the vehicle is to be principally garaged. Eagle Ins. Co., supra, at 57 citing Restatement [Second] of Conflict of Laws, § 193, comment c.

Applying this analytical framework to the facts, Michigan clearly had the most significant contacts. Defendant’s casualty claims representative averred that at the time Ndiaye procured the policy, he provided a Michigan address and stated that the four vehicles registered on his policy were to be garaged in that State. The subject insurance policy was negotiated in and issued to Ndiaye in Michigan and incorporated Michigan law. See, GEICO v. Nichols, 8 AD3d 564 (2d Dept. 2004) (retroactive cancellation of policy under Florida law permitted where the policy was issued in Florida to Florida residents for a vehicle registered in Florida and policy incorporated Florida law; the only connection to New York was that insured was driving car in NY at time of accident); Mtr of Eagle Ins. Co supra (retroactive cancellation of policy under Virginia law for fraudulent misrepresentation permitted where the policy was issued in Virginia to a Virginia resident for a vehicle garaged in Virginia, and the only connection to New York was that the accident occurred in NY and the injured passenger was a NY resident); Careplus Medical Supply Inc v. Selective Insurance Co of America, 25 Misc 3d 48 (App Term, 2d Dept. 2009) (New Jersey law governs where the policy was negotiated and entered into in New Jersey, the insureds lived in New Jersey, and the vehicle was garaged and registered in New Jersey; the only connection to New York was that the accident occurred there); R.E.G Flushing Medical v. Integon Nat. Ins. Co., 2011 NY Slip Op 50975(U), 31 Misc 3d 1234(A) (Dist. Ct., Nass. Co. 2011) (North Carolina law applies where policy was issued to insured in North Carolina, the policy listed a North Carolina address for the insured and the insured certified that his cars were garaged at the address listed).

Applying Michigan law, it is clear that the defendant properly cancelled the policy at issue because of fraud in its procurement. Plaintiff argues that even if Michigan Law applies, the [*5]motion cannot be granted because its out of state affidavit lacks a certificate of conformity required by RPL 299-a (1). This section mandates that an affidavit signed outside of the state by a foreign notary be accompanied by a certificate of conformity certifying that the manner in which the acknowledgment was taken conforms with New York law or other place where the acknowledgment was taken. The certificate must be made by an attorney admitted to practice in New York State who resides in the other jurisdiction, or by an attorney admitted to practice in the other jurisdiction, or any other person deemed qualified by any court of the State of New York. RPL ｧ 299-a (1).

Here, the Michigan notary of the public who notarized defendant’s affidavit does not fall within any of the categories allowed by RPL 299-a (1). Nevertheless, the absence of a valid certificate of conformity for an out-of-state affidavit is not a fatal defect and can be cured nunc pro tunc. Fredette v Town of Southampton, 95 AD3d 940, 941 (2nd Dept. 2012); Art of Healing Medicine, P.C. v. Amica Mutual Ins. Co., 2013 NY Slip Op 52014(U), 41 Misc 3d 141(A) (App. Term, 2nd Dept. 2013). Accordingly, the defendant is given 45 days from receipt of this decision to provide a certificate of conformity to this Court and the other side. Upon receipt of proper certificate, this Court will grant the motion for summary judgment and dismiss the case.

This constitutes the Decision and Order of the Court.

DATED: March 10, 2014

_____________________________

KATHERINE A. LEVINE

Acting Justice, Supreme Court

Civil Court of the City of New Y ork, Kings County

003036/11

Attorneys for Plaintiff NATURAL THERAPY ACUPUNCTURE, P.C. a/a/o ADA OKIKA

The Rybak Firm, PLLC

1810 Voorhies Avenue, 3rd Floor

Brooklyn, NY 11235

Attorneys for Defendant STATE FARM MUTUAL INSURANCE COMPANY

McDonnell & Adels, PLLC

401 Franklin Avenue

Garden City, NY 11530

Carol Ruth Feinman, J.

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

review of this Notice of Motion for Summary Judgment:

PapersNumbered

Notice of Motion and Affidavits Annexed (Plaintiff)………..1 & 2 [Exh. 1-5]

Opposition and Affidavits Annexed …….(Defendant)…………3 [Exh. 1-6]

Notice of Motion and Affidavits Annexed..(Defendant)…….. 4 & 5 [Exh. 1-10]

Opposition and Affidavits Annexe (Plaintiff)…………………..6 [Exh. 1-8]

Replying Affidavits (Defendant) ……………………………7 [Exh. E-M]

Other………Plaintiff Post-Motion Memorandum……………..8 [Exh. 1]

Defendant Post-Motion Memorandum9 [Exh. M,N,O,P,L]

Upon the foregoing cited papers and after oral argument, the Decision/Order on [*2]the defendant’s motion seeking Summary Judgment and the plaintiff’s motion seeking Summary Judgment are decided herein as follows:

Plaintiff health service provider brought the within no-fault insurance action against the defendant insurance company to recover first-party no-fault benefits for medical services rendered, pursuant to §5106 of the New York State Insurance Law (hereforth “Insurance Law”) and Regulations of the New York State Insurance Department [11 N.Y.C.R.R. §65-1.1 et. seq.]. Plaintiff is seeking to recover no-fault benefits in the total amount of $600, including statutory interest and attorney fees, for services rendered to its assignor, Ada Okika, between March 9, 2010 to April 16, 2010, relating to injuries allegedly arising out of a motor vehicle accident which occurred on February 13, 2010. Plaintiff seeks reimbursement for no-fault benefits for the following invoices:

a. $535.00 for services rendered between March 9, 2010 and April 10, 2010; and

b. $65.00 for services rendered on April 16, 2010.

Defendant moves herein for an order granting summary judgment and dismissing plaintiff’s complaint as a matter of law, on the grounds that plaintiff failed to establish its prima facie entitlement to no-fault payments, that plaintiff breached a condition precedent to coverage, to wit, its failure to appear for an examination under oath (hereinafter “EUO”), pursuant to 11 N.Y.C.R.R §65-1.1 and §65-3.5, and that plaintiff is fraudulently incorporated, thus arguing that plaintiff is not entitled to receive no-fault payment.

Plaintiff opposes defendant’s application, arguing the reasonableness of defendant’s EUO request, and that such notices and denials from defendant were neither properly generated nor timely mailed.

Plaintiff subsequently also moves herein for an order granting summary judgment as a matter of law, on the grounds that it has established its prima facie case, in that Ada Okika assigned her “no-fault” benefits to plaintiff health service provider pursuant to the terms of the insurance policies sold by the defendant, and plaintiff timely submitted invoices and/or bills to defendant in accordance with the New York State Insurance Law. The plaintiff asserts herein that the defendant failed to properly pay or deny the various claims within thirty (30) days of receipt, as required by the New York State Insurance Law and Regulations.

Defendant opposes Plaintiff’s application, arguing that plaintiff failed to establish its prima facie entitlement to reimbursement, and also that plaintiff fraudulently incorporated its practice.

The court notes that there are two sets of motions filed in the instant action, [*3]referencing the same applications to the court, wherein both parties are seeking relief in their favor. Defendant filed a summary judgment motion seeking relief, in which plaintiff filed opposition papers. Plaintiff also subsequently filed a summary judgment motion seeking relief, in which defendant filed opposition papers. This court, in the interest of judicial economy, shall hereby decide both parties’ motions in this instant decision. The court has considered all submitted documents of both parties herein, along with the additional post-motion briefs the court directed both parties to submit. The court finds that this will cause no prejudice to either party.

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. See, Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Tortello v. Carlin, 260 AD2d 201 [1st Dept. 1999]; Cox v. Kingsboro Medical Group, 214 AD2d 150 [2nd Dept. 1995]. The burden of proof, as well as persuasion, rests with the proponent of the summary judgment motion. Once the burden is satisfied, the opponent of the motion must produce sufficient evidence, in admissible form, establishing the existence of at triable issue of fact. See, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], citing Zuckerman v. City of New York, 49 NY2d 557 [1980].

Pursuant to both the Insurance Law and the Regulations promulgated by the Superintendent of Insurance, an insurer is required to pay or deny a claim for no-fault automobile insurance benefits within thirty (30) days from the date a claimant supplies proof of claim forms. See, Insurance Law §5106(a); 11 N.Y.C.R.R. §65.15(h). Failure to pay benefits within the 30-day requirement renders the benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. See 11 N.Y.C.R.R. §65-3.9(a). In addition, the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See, Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 [1997].

After oral argument previously conducted, this court found that plaintiff had established its prima facie entitlement to no-fault reimbursement. However, the court determined that the remaining issues to be determined were the reasonableness of defendant’s EUO verification request, the timeliness and proper mailing of the EUO verification request, and personal knowledge of the assignor’s appearance or failure of same. The court reserved decision and directed both parties to submit additional briefs regarding these remaining issues, which the court notes it only received additional briefs from defendant. Thus, the court shall render its decision based upon the record herein.

REASONABLENESS OF EUO REQUEST

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person … shall … as may reasonably be required, submit to examinations under oath by any person named by the [insurer] and subscribe to same. Another condition to coverage under this section sets forth that an eligible person shall [*4]submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.” See, 11 N.Y.C.R.R. § 65—1.1(d) [Sec. I. Conditions, Proof of Claim (b) ].

It is well settled that a defendant insurance company is within its rights to request an examination under oath (“EUO”) of a plaintiff provider based upon the fact that all no-fault endorsements issued in the state since April 2002 allow for the taking of same, for the purposes of verifying a claim. Moreover, an EUO of a medical provider has been held to be appropriate where the insurer can demonstrate a valid and necessary reason for doing so. See 11 N.Y.C.R.R. §65-1.1. See also, W & Z Acupuncture, P.C. v Amex Assurance Co., 24 Misc 3d 142(A) [App. Term 2nd, 11th & 13th Jud. Dists. 2009]. Appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay no-fault benefits. See, Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141(A) [App. Term 2nd, 11th and 13th Jud. Dists. 2010].

The regulations provide for an examination under oath. The term “examination under oath” is not defined by the no-fault regulations. Word used in regulations that are not specifically defined in the regulations are to be given their ordinary meaning. See, Oefelein v. Town of Thompson Planning Board, 9 AD3d 556 [3rd Dept.2004]; Parker v. Kelly, 140 AD2d 993, [4th Dept.1988]; McCarter v. Beckwith, 247 App.Div 289 [2nd Dept.1936]. Examination is defined as the questioning of a witness by an attorney. See, Law.Com Law Dictionary. Examination can also be defined as a formal interrogation. See, Webster’s Unabridged Dictionary 2nd Ed., [1998; p. 673]. Therefore, the term “examination under oath” as used in the no-fault regulations means the insurer can request the injured party or the assignee of the injured party appear and give oral testimony after having been sworn or under affirmation.

In the instant record, defendant proffers the Affidavit of Dawn Madalone, an investigator employed in defendant’s Special Investigative Unit. Ms. Madalone attests to her personal knowledge of the instant matter, due to her involvement in the investigation of plaintiff provider. Ms. Madalone sets forth the factors and circumstances which led to defendant insurance company to initially investigate plaintiff. Ms. Madalone also sufficiently substantiates the defendant’s request for an EUO, as a part of defendant’s further investigation and verification of plaintiff no-fault reimbursement claims. Moreover upon further review, defendant insurance company did in fact advise plaintiff provider in the EUO scheduling letters that it requested an EUO based on, inter alia, the “rendition and necessity of [plaintiff’s] billing practices, as well as the patten in the nature and frequency of the medical services.” These letters clearly delineate defendant’s further reasons as to why it sought verification of the claims.

However, despite defendant’s arguments herein for seeking such verification, the regulations do not provide an insurer with the right to obtain written documentation other than such documentation as may be demanded as verification. In addition to [*5]appearing for an examination under oath, the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. See, 11 NYCRR 65—1.1. The regulations also do not give the insurer to right to ask an assignee to produce documents relating to the corporate structure or finances of a medical provider. See, 11 NYCRR 65—3.5(a). Upon receipt of the completed verification form, the insurer can request additional verification. See, 11 NYCRR 65—3.5(b). The regulations only permit the insurer to obtain written information to verify the claim. See, 11 NYCRR 65—3.5(c); See also, generally, V.M.V. Management Co., Inc. v. Peerless Ins., 15 AD3d 647 [2nd Dept., 2005]. Nothing in the No—Fault regulations permits an insurer to request an assignee to produce corporate organizational and financial documents a week in advance of an EUO.

However, before this court can refuse to accept defendant’s arguments in favor of its verifications requests seeking EUOs, plaintiff must first establish that it had objected to or responded to such requests indicating and specifying the claims of unreasonableness. In the present case, the plaintiff provider has in no way established that it ever objected to any part of the defendant’s EUO notices. The Appellate Term has clearly decided that due to such a failure by a plaintiff provider to submit any objections prior to an application to the court, it will decline to consider the plaintiff’s argument. See for example, Viviane Etienne Medical Care, P.C. v State Farm Mutual Ins. Co., 35 Misc 3d 127(A) [App. Term 2nd Dept. 2012]; Crescent Radiology v. American Transit, 31 Misc 3d 134(A) [App. Term 2nd Dept. 2011]; See also, Westchester Medical Center v New York Central Fire, 262 AD2d 553 [2nd Dept. 1999]. Thus, this court, in following precedent, will also decline to consider the instant plaintiff’s argument.

In light of the findings above, plaintiff’s application seeking summary judgment is hereby denied.

TIMELY AND PROPER MAILING OF EUO and PERSONAL KNOWLEDGE OF FAILURE TO APPEAR

In order to establish that the claimant failed to appear for the scheduled EUOs, the defendant is required to establish that the EUO scheduled letters were mailed. See for example, Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept. 2006]. There are three distinct methods to demonstrate proof of mailing: (1) provide an affidavit from an individual with personal knowledge of the actual mailing (see for example, Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139(A) [N.Y.Dist.Ct. 2008]); (2) acknowledgment by the adverse party that it received the subject document (see for example, A.B. Medical Services v. New York Central Mutual Fire Ins. Co., 3 Misc 3d 136(A) [App. Term 2nd & 11th Jud. Dists. 2004]); and (3) where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed (see for example, Lenox Hill Radiology, P.C. v. Tri State Consumer Ins. Co.,31 Misc 3d 13 [App. Term 1st Dept. 2010]). [*6]

Additionally, the defendant must also meet the burden of establishing with an affidavit by a person with personal knowledge that the plaintiff’s assignor failed to appear for the scheduled EUOs (see, Infinity Health Products, LTD., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007].

In support of its motion, defendant submitted herein both the Affidavit of Dawn Madalone and the Affidavit of Neil Gahl, Claims Representatives employed by defendant insurance company. Contrary to plaintiff’s contentions, the court finds that such affidavits of Ms. Madalone and Mr. Gahl sufficiently establishe the standard office procedures and practices for the preparation and generation of verification letters and NF-10 denial of claim forms in which defendant institutes. Specifically, both Affidavits sufficiently establish the process defendant institutes regarding all incoming mail of proof of claims, as well as the process defendant institutes regarding all out-going mail, including but not limited to the verification request letters and NF-10 denials (of which are previously prepared by a designated claims representative). In addition, both Affidavits sufficiently establish the process of mailing of same by way of daily pick up by a U.S. Postal Service. Both Affidavits assert that defendant received plaintiff’s first proof of claim invoice on April 19, 2010, and that an EUO verification request/delay letter was thereafter issued and mailed on May 4, 2010, directing the plaintiff to appear for the EUO on June 1, 2010. Additionally, upon defendant’s receipt of an additional proof of claim on April 30, 2010, an additional verification request/delay letter was issued and mailed on May 14, 2010. Both Affidavits indicated that upon plaintiff’s failure to appear for the initial EUO scheduled date of June 1, 2010, a follow-up EUO request was issued and mailed to plaintiff on June 7, 2010, directing plaintiff to appear for the EUO on June 29, 2010. Both Affidavits also indicated that upon plaintiff’s failure to appear for the re-scheduled EUO of June 29, 2010, a denial of no-fault reimbursement was thus issued, based upon plaintiff’s failure to satisfy a condition precedent of attending the EUO.

In addition, the defendant’s presentation herein of a copy of its mail receipt by United States Postal Service is not only additional prima facie proof of mailing, but is key to creating the presumption of receipt. See, Hernandez v. Merchants Mutual Ins. Co., 14 Misc 3d 1215(A) [Civ. Ct. Bronx Co. 2006].

The defendant further submitted herein the Affirmation of Joseph A. Schwarzenberg,

Esq. , who attested he was employed as an attorney at the law offices of McDonnell & Afels, PLLC, which represents the defendant herein. Mr. Schwarzenberg asserted that he was assigned to handle the EUO, and was present in the office where the EUOs were scheduled to be conducted, on both dates of June 1, 2010 and June 29, 2010, wherein [*7]plaintiff failed to appear on either date. The Court finds that such Affirmation of Mr. Schwarzenberg sufficiently attests to having personal knowledge of the plaintiff’s failure to appear for three duly scheduled EUOs. See, Infinity Health Products, Ltd., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007]; Chi Acupuncture, P.C. v. Kemper Auto & Home Ins. Co., 14 Misc 3d 141(A) [App. Term 9th & 10th Jud. Dists. 2007].

In reviewing the contentions made by the plaintiff within its opposition to defendant’s application for summary judgment, the court finds that it has failed to rebut the presumption of defendant’s prima facie timely mailing of the EUO verification requests and denials, and plaintiff’s failure to appear for either of the properly scheduled EUOs. In light of such, the Court finds that the plaintiff’s submissions in opposition are insufficient to raise a triable issue of fact as to whether the defendant timely issued a denial of its outstanding claims. See for example, Zuckerman v. City of New York, 49 NY2d 557 [1980].

In light of the this condition precedent, it is clear that plaintiff’s failure to comply (or even properly object to preserve its objection for court review) with a condition precedent to coverage voids the policy contract ab initio, and defendant is not obligated to pay the claim, regardless of whether defendant issued denials beyond the thirty (30) day period. See for example, Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept. 2011]; see also, Neomy Medical, P.C., v American Transit Ins. Co., 31 Misc 3d 1208(A) [Kings County Civ. Ct.]. This court finds, based upon the foregoing analysis, that the plaintiff has failed to establish its entitlement to summary judgment, and the defendant has sufficiently established its entitlement to summary judgment herein regarding the plaintiff’s claims. See, Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980].

Based upon the foregoing, the plaintiff’s application seeking summary judgment is hereby denied. In addition, the defendant’s application seeking summary judgment against the plaintiff is hereby granted, and the matter is dismissed.

This constitutes the Decision and Order of this Court.

DATED:November ___, 2013

Brooklyn, New York

_____________________

CAROL RUTH FEINMAN

Judge, Civil Court

Civil Court of the City of New York, Kings County

47305/2011

Attorney Information:

Bruno, Gerbino & Soriano, LLP (Attorney for Defendant)

445 Broad Hollow Road, Suite 220

Melville, New York 11747

Law Offices of Emilia Rutigliano, P.C. (Attorney for Plaintiff)

1733 Sheepshead Bay Road, Suite 11

Brooklyn, New York 11235

Ingrid Joseph, J.

Part 41

Index No.: 47305/2011

Motion Cal. No.: 103/104

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion and Affidavits Annexed .1 – 2

Cross Motion and Affidavits Annexed,……………3-4

Answering Affidavit ……………………………………..5

Replying Affidavits …….. 6In this action by a provider to recover assigned first-party no fault benefits, the plaintiff seeks summary judgment, and the defendant cross moves for the same relief.

Plaintiff claims that it provided medical services to assignor, Joseph Howe (“Mr. Howe”), for injuries that he sustained as a result of a motor vehicle accident that occurred on 11/07/09. The plaintiff established by proof in admissible form that it sent bills to the defendant for dates of service 12/09/09 to 1/06/10 ($718.17); 1/07/10 to 2/02/10 ($743.60); 2/05/10 to 3/02/10 ($743.60); and 7/06/10 to 8/14/10 ($1460.00) and that the total amount owed ($3665.98) remains outstanding. [*2]

The defendant, a Massachusetts-based insurance company, acknowledges receiving the bills and established that it sent a delay letter to plaintiff on 11/19/09 in response to the first bill for date of service 12-09/09 to 1/06/10 in the amount of $718.17. The delay letter states that the request for payment can not be satisfied due to a pending investigation into a potential policy violation. There is no evidence that the defendant sent a denial of claim form for the first bill after completing its investigation. However, the defendant demonstrated that it sent denials for the remaining bills on 2/16/10, 3/22/10, and 8/30/10, respectively. The defendant noted on each NF-10 form that the claims were denied due to plaintiff’s assignor’s non-cooperation based on his failure to provide documents to establish that he resides in Massachusetts. The defendant cross moves summary judgment dismissing the action on that ground.

At the outset, the court notes that the applicable Massachusetts laws conflict with New York No-Fault law. The analysis used in resolving choice of law issues in this context is the “grouping of contacts” or “center of gravity” approach (Babcock v Jackson, 12 NY2d 473 [1963]). This approach accommodates the competing interests in tort cases with multi-state contacts by giving controlling effect to the law of the jurisdiction based on the relationship or contact with the occurrence, or where the parties have the greatest concern with the specific issue raised in the litigation (id.). Upon application of this analysis, the court finds that the dispositive factors weigh in favor of applying Massachusetts law. The motor vehicle accident giving rise to this dispute occurred at the intersection of Pitkin Avenue and Hendrix Street in Brooklyn, New York. However, the insurance contract was entered into and written in Massachusetts. The defendant is a domiciliary of Massachusetts and maintains its principal place of business in that state. Additionally, Mr. Howe had a Massachusetts license, purported to have a Massachusetts address, and the vehicles (Toyota and Lexus) covered under the policy were registered in Massachusetts .

In order to avoid coverage based upon non-cooperation by an insured, the insurer bears the burden of proving (1) a substantial and material breach of the duty to cooperate; (2) actual prejudice to the insurer’s interest due to the lack of cooperation, i.e., serious impairment of the insurer’s investigation or defense of the action; and (3) the insurer’s exercise of diligence and good faith in obtaining the insured’s cooperation (Darcy v Hartford Ins. Co., 407 Mass. 481, 488-491 [1990]). Even when these elements are met, the insurer will be obligated to provide coverage if the insured (or the party standing in the shoes of the insured) is able to prove that the insurer waived its right to assert the policy breach as a ground for denying liability (Rose v Regan, 344 Mass. 223, 229 [1962]; Merrimack Mut. Fire Ins. Co. v Nonaka, 414 Mass. 189, 190 [1993]). Waiver may be inferred from the circumstances when an insurer has exercised dominion over a case, which made a significant and irrevocable change in the insured’s position, without issuing a timely and effective reservation of rights and disclaimer letter (DiMarzo v American Mut. Ins. Co., 389 Mass. 85, 99-100 [1983]). [*3]

Here, the defendant’s underwriter, Ania Cryan, stated in her affidavit that Mr. Howe represented at the time the policy was issued that he resided at L3 Franklin Square, Randolph, Massachusetts (“Massachusetts address”). Ms. Cryan indicated that the defendant would not have issued the insurance policy had it known that Mr. Howe resided in New York and not in Massachusetts. The defendant’s claims adjuster, Melissa Thompson, also stated in her affidavit that the defendant was under the impression that Mr. Howe resided at the Massachusetts address. Ms. Thompson asserted that the defendant became suspicious, because the NF-2 application indicates that Mr. Howe’s address is 126-39 146th Street, Jamaica, New York (“Jamaica, Queens address”). Ms. Thompson did not set forth the defendant’s procedures when receiving NF-2 forms, but the dates on Mr. Howe’s NF-2 form appears to contradict Ms. Thompson’s assertions. The NF-2 is dated 11/13/09 and bears a received stamp of 11/18/09, and the reservation of rights letter was sent on 11/13/09 to the Jamaica, Queens address. Based on these dates, it appears that the defendant sent the reservation of rights letter to Mr. Howe’s Jamaica, Queens address before receiving the NF-2 application. The defendant has also failed to proffer any evidence that it sent the letter to the Massachusetts address, which is the address of record on the insurance policy according to Ms. Thompson. The court is unable to ascertain when the defendant first became aware of a potential discrepancy with Mr. Howe’s residency so as to disclaim coverage on that ground. This is relevant because under Massachusetts law, the defendant could be potentially barred from disclaiming coverage on estoppel grounds, or if waiver applies (Sweeney v Frew, 318 Mass. 595 [1945]). Waiver of a policy defense can be inferred from an insurer’s actions, and, in the court’s view, accepting premium payments from an insured when the insurer is aware of a potential policy violation or discrepancy with an insured’s purported residence may estop the defendant from availing itself of the lack of coverage defense.

There is also a question as to the effectiveness of the letter that was sent to Mr. Howe. The letter indicates that the defendant is reserving its right to disclaim and to assert a defense of no coverage based upon its contention that it may have been provided with false, deceptive, misleading or incomplete information regarding the garaging of Mr. Howe’s vehicles. The letter outlines provision 18 under the policy, which states, in pertinent part,

“After an accident or loss, you or anyone else covered under this policy must cooperate with us in the investigation, settlement and defense of any claim or lawsuit. We must be sent copies of all legal documents in connection with the accident or loss.

Failure to cooperate with us may result in the denial of the claim.”

The letter states that the defendant will need to obtain a recorded statement from Mr. Howe in reference to the garaging of his vehicles, and it states that Mr. Howe will need to provide [*4]documents showing that he resides in Massachusetts. After receiving reports from two investigators and a recorded statement from Mr. Howe, the defendant did not disclaim its obligation under the subject insurance policy based upon false, deceptive, misleading or incomplete information regarding the garaging of Mr. Howe’s vehicles. Instead, the defendant disclaimed its obligations under the policy based upon its contention that Mr. Howe’s did not submit the requested documentation and therefore, failed to cooperate with its investigation.

The defendant’s contention that Mr. Howe failed to cooperate when applied to Massachusetts law regarding the waiver of defenses, raises several issues. First, there is no showing that Mr. Howe received the reservation of rights letter. The defendant failed to annex actual proof of mailing or provide an affidavit of an individual with personal knowledge to establish the practices and procedures that were in place at the time to ensure that such letters are sent. Ms. Thompson’s conclusory statement that she mailed the letter to Mr. Howe is insufficient. Second, before receiving the NF-2 application or completed reports from its investigators, the defendant sent the letter to the Jamaica, Queens address only and not to the address of record on the insurance policy. Third, there is a notation in the letter that the defendant enclosed a self-addressed, stamped envelope for Mr. Howe to return acknowledgment of receipt of the letter. The defendant’s claims adjuster, Ms. Thompson, failed to address whether a signed acknowledgment of receipt was received from Mr. Howe. Lastly, there is no showing that a reservation of rights or disclaimer letter was sent to the plaintiff, who stands in the shoes of Mr. Howe.

Assuming arguendo that Mr. Howe received the reservation of rights letter, there is no showing that the defendant exercised diligence and good faith in obtaining Mr. Howe’s cooperation. The letter is vague and ambiguous as to the type of documentation required, and there is no evidence that a more detailed, follow up letter was sent to Mr. Howe before disclaiming coverage. Furthermore, the defendant has failed to demonstrate that Mr. Howe’s alleged failure to submit documentation as to his proof of residency constituted a substantial and material breach of the duty to cooperate. The defendant received detailed reports from both investigators and Mr. Howe submitted to an in person, recorded interview with one of the investigators, Timothy Cunningham, on 11/20/09. When asked by Mr. Cunningham for his current address, Mr. Howe responded that he resides at L3 Franklin Square Condo, Randolph, Mass., 02368 . Mr. Howe presented the investigator with a Massachusetts driver license but provided a New York area code phone number. Mr. Howe claimed that he worked full time at American Airlines (JFK Airport location) over a seventeen year period before retiring in April 2009. Mr. Howe indicated that he stayed at the Jamaica, Queens address, his mother’s home, when he was working. He claimed that he did not pay rent at that address but stated that the Direct TV bill was in his name. Mr. Howe also stated that he did not pay rent or utilities at the Massachusetts address, and he acknowledged that he did not own that property. Mr. Howe told the investigator that he sometimes stays at the [*5]Massachusetts address and at his daughter’s house, located at Herman Street in Roxbury, Massachusetts.

Additionally, the defendant has not established that it has or will suffer prejudice or serious impairment due to Mr. Howe’s alleged failure to produce documentation. Mr. Cunningham investigated Mr. Howe’s New York address, and the other investigator, Robert DiMare, investigated the Massachusetts address. In addition to the results of the in person interview with Mr. Howe, Mr. Cunningham reported that a search using Mr. Howe’s social security number connected him to the Jamaica, Queens address from 1993 through November 2009. Mr. Cunningham also located Mr. Howe’s bankruptcy filing from May 2005, which revealed that Mr. Howe used the Jamaica, Queens address at that time. Mr. Cunningham also indicated that a search with the New York Department of Motor Vehicles showed that Mr. Howe had a New York driver’s license that expired in 1981 . He also reported that Mr. Howe has received tickets for disobeying traffic devices in Brooklyn, New York on 4/13/09 and 2/02/07 as well as a parking ticket in New York City on 5/20/09. Mr. Cunningham reported further that he found a telephone listing for “Joseph N. Howe” at the Jamaica, Queens address on the Whitepages.com website. According to Mr. Cunningham, one of the neighbors near the Jamaica, Queens address indicated that Mr. Howe has resided there for several years. Mr. Cunningham reported that he observed both of the vehicles covered under the subject policy (a Toyota and Lexus) parked on a street by the Jamaica, Queens address, and he noted that the Lexus had extensive front end damage.

Mr. DiMare reported that he found no records relating to Mr. Howe at the Randolph Town Hall, Registrar of Voters Office, or Assessor’s Office. He also indicated that he found nothing identifiable with Mr. Howe at the Massachusetts address after reviewing available telephone company records for that area. Mr. DiMare questioned the residents of attached townhouses to the L3 Franklin address and none were familiar with or had knowledge of Mr. Howe. Mr. DiMare interviewed Wendy Jillian of Brooks Management Company, which oversees the operation of the townhouse complex. Ms. Jillian confirmed that the property is owned by another individual and that Mr. Howe is not listed as the current or former owner. Mr. DiMare reported that he conducted a series of spot checks during the evening hours of 11/16/09 and that he did not observe either of the insured’s vehicles parked in close proximity to the Massachusetts address.

Essentially, both investigators concluded in reports that were provided to the defendant (on 11/23/09 and 12/04/09) that Mr. Howe resides primarily in New York. Despite receiving the reports and a transcript of Mr. Howe’s interview, the defendant disclaimed its obligation under the subject policy on the ground that Mr. Howe failed to cooperate by not submitting documentation. However, there is no showing that Mr. Howe’s alleged failure to provide documentation was material and substantial, or that it impaired the defendant’s investigation concerning this matter.

The defendant has submitted sufficient information to rebut plaintiff’s prima facie [*6]showing regarding the outstanding bills but has failed to establish its defense of lack of cooperation based upon Mr. Howe’s failure to remit documentation. The court is cognizant that Massachusetts courts have held that furnishing information known to be false and of a material nature before or at trial is a ground for disclaiming coverage based on an insured’s non-cooperation (Williams v Travelers Ins. Co., 330 Mass. 476, 479 [1953]; Jertson v Hartley, 342 Mass. 597, 602 [1961] and see Mello v Hingham Mut. Fire Ins. Co., 421 Mass. 333 [1995][duty to cooperate a condition precedent to affixing liability]). However, the defendant has not raised that defense, and, even if it had, there are questions of fact as to whether the defendant waived its right to disclaim on that ground. Waiver may apply if the defendant is estopped from disclaiming coverage on equitable grounds, and there is an issue as to the

effectiveness, or lack thereof, of the reservation of rights and disclaimer letters that were sent in this case.

Accordingly, plaintiff’s motion and the defendant’s cross motion are denied.

This constitutes the decision and order of the court.

July 17, 2013____________________________

Hon. Ingrid Joseph

Acting Supreme Court Justice

[*1]

Civil Court of the City of New York, New York County, June 24, 2013

APPEARANCES OF COUNSEL

Dodge & Monroy, P.C., Melville, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City, for plaintiff.

{**40 Misc 3d at 788} OPINION OF THE COURT

James E. d’Auguste, J.

Defendant Utica Mutual Insurance Company seeks summary judgment dismissing plaintiff New Century Medical Diagnostics, P.C.’s no-fault benefits action.

The parties’ submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims{**40 Misc 3d at 789} based upon New Century’s failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath [*2]represents a failure to comply with a condition precedent to coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) New Century has not denied its nonappearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State Insurance Department^[FN*] opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. (Ops Gen Counsel NY Ins Dept No. 09-06-10 [June 2009, Alexander Tisch, Esq.].) The Insurance Department, however, did not opine that an insurer’s attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer’s demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century’s claims.

Accordingly, Utica’s motion for summary judgment dismissing the complaint is granted.

Footnotes

Footnote *: The Insurance Department is now a part of the Department of Financial Services.