Reported in New York Official Reports at Palms P.T., P.C. v State Farm Fire & Cas. Co. (2025 NY Slip Op 50706(U))
[*1]| Palms P.T., P.C. v State Farm Fire & Cas. Co. |
| 2025 NY Slip Op 50706(U) [85 Misc 3d 1273(A)] |
| Decided on May 2, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 2, 2025
Palms P.T.,
P.C. a/a/o LANETTE RIVERA, Plaintiff(s)
against State Farm Fire & Cas. Co., Defendant(s) |
Index No. CV-704124-21/KI
Kopelevich & Feldsherova, P.C., Brooklyn, for Plaintiff
Siegel & O’Leary LLP, Ballston Spa, for Defendant. Sandra Elena Roper, J.
Recitation, as required by CPLR §2219(a) of the Papers considered in review of
this Motion:
Papers
Notice of motion & Affidavits
Annexed 1-2
Affirmation in Opposition & Affidavits Annexed 3-4
Defendant’s Memorandum of Law 5
Decision and Order of Defendant’s Motion for Summary Judgment pursuant to CPLR 3212 is hereby determined as follows:
The initial COVID-19 Pandemic Gubernatorial Executive Order declaring a state of Emergency in New York was signed on March 7, 2020, 9 NYCRR § 8.202 followed by successive orders specifically titled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency” 9 NYCRR § 8.202.1 et seq. mandating various forms of unprecedented restrictions to persons, the private sector, government at large and the tolling of various statutory procedural time limits (see Brash v Richards, 195 AD3d 582, 585 [2d Dept 2021]). Because of the dire need for urgent guidance to be set in place not merely for the rule of law but for the societal public health need for the preservation of life, the Executive Branch decreed, with emergency due deliberation, without the luxury of time to finesse the EOs to attend to every prospective scenario as a result of this quite traumatic tragic scourge inflicted on its citizenry. Thus, write it and let the Judicial Branch work out the kinks thereafter. This instant [*2]matter presents one of those kinks, which has similarly been before This Court previously, of which the Appellate Term 2nd Dept rebuked This Court as having “improvidently exercised its discretion” (Weston-Pinillos v Seaview Manor, LLC, 74 Misc 3d 137 [A], 2022 NY Slip Op 50305[U], *6 [App Term 2022]). Therein, the Appellate Court invoked “the totality of circumstances” test in the exercise of judicial discretion and in the interest of justice in deliberation of COVID-19 Pandemic disputations in the law (id.)
In this instant matter, the facts are undisputed. Defendant scheduled EUOs for March 30, 2020, May 4, 2020, June 17, 2020 and July 6, 2020 in attempt to comply with the No-Fault Insurance Law 11 NYCRR § 65-1.1 notwithstanding the various EOs in effect restricting movement and gathering of persons as well as mandated closing of non-essential businesses, which law firms were considered as such. The Pandemic was a chaotic time in the law. Although the Judicial Branch never closed, the ramp up for emergency adjudication was quite challenging. Quite a bit of time was spent in laborious efforts in finding counsel and litigants, which was difficult because not only did the courts tragically lose judges and court personnel, but likewise tragedy also similarly struck the Bar as well. It was an intense effort to locate people in general, even after the lifting of the closing of non-essential businesses by EO 9 NYCRR § 8.202.41 effective June 12, 2020. Here, Defendant provides affidavits and admissible documents to establish its communications with Assignor of its four attempts to reschedule the EUOs as the various successive EOs were decreed. Ultimately, scheduling for June 17, 2020 after the June 12, 2020 reopening EO. Arguendo, where the successive EO had not allowed reopening on June 12, 2020 or, on or before June 17, 2020, then this June 17, 2020 EUO would similarly be considered a nullity as the previously scheduled March 30, 2020 and May 4, 2020 scheduled during the closure. It is of no moment that May 4, 2020, provided for Virtual EUO option as Plaintiff argues. Under the totality of the circumstances test, Defendant made its best efforts to comply with the No-Fault insurance law 11 NYCRR § 65-1.1 while maneuvering to concomitantly comply with the ever-changing EOs during the Pandemic. June 17, 2020 is found to be the first EUO No-show, July 6, 2020, the second EUO No-show and denial was timely. Defendant therefore met its burden for judgment as a matter of law. Upon the shifting of the burden to rebut this finding, Plaintiff fails. Arguendo, where Plaintiff would have brought any evidence or reasonable justification for Assignor’s EUO No-show up to and including the actual writing of this decision and order, This Court would have considered same because of the extraordinary once in a 100 year COVID-19 Pandemic that requires a lessened degree to meet a standard upon a careful judicial analysis of the facts and a balancing of the competing interests presented for the invocation of non-hyper technical relaxed judicial discretion to render a decision in the interest of justice (see Weston-Pinillos v Seaview).
For the foregoing reasons, Motion for Summary Judgment GRANTED in favor of Defendant. Complaint is dismissed with prejudice.
This Constitutes Decision and Order of This Court.
Date: May 2, 2025Brooklyn, New York
Hon. Sandra Elena Roper, JCCMedical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50412(U))
Reported in New York Official Reports at Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50412(U))
[*1]| Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 50412(U) |
| Decided on April 1, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 1, 2025
Medical Supply of NY Corp., A/A/O JENNIFER TRINIDAD, Plaintiff(s),
against State Farm Mutual Automobile Ins. Co., Defendant(s). |
Index No. CV- 705575-19/KI
Kopelevich & Feldsherova, P.C., Brooklyn, for Plaintiff
Rossillo Licata LLP, Westbury, for Defendant. Sandra Elena Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
PapersNotice of Motion and Affidavits Annexed 1
Affirmation in Opposition 2
Reply 3
Memoranda of Law 4,5
Upon the foregoing cited papers, pursuant to CPLR §3212 (g), the Decision and Order on Defendant’s Motion for Summary Judgment is as follows:
Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?
The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature [FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory [FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature [FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).
Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.[FN9]
“In all the courts within this state the certificate of a notary public, over the signature of the notary public, shall be received as presumptive evidence of the facts contained in such certificate; provided, that any person interested as a party to a suit may contradict, by other evidence, the certificate of a notary public” (NY CLS Exec § 137). “A notary public who is duly licensed as an attorney and counsellor at law in this state may substitute the words ‘Attorney and Counsellor at Law’ for the words ‘Notary Public'”[FN10] (id.; see NY CLS Exec § 135). Further,
“The notary public’s electronic signature is deemed to be reliable if the standards which have been approved through regulation by the secretary of state have been met. Such regulations shall include, but not be limited to, the requirements that such electronic signature be: (i) unique to the notary public; (ii) capable of independent verification; (iii) retained under the notary public’s sole control; (iv) attached to the electronic record; and (v) linked to the data in such a manner that any subsequent alterations to the underlying document are detectable and may invalidate the electronic notarial act. ”
(NY CLS Exec § 135-c 5 [b]). Although not specifically defined within the statutory language, it may be deduced that the notary’s signature is required to be unique, capable of independent [*5]verification and not an easily alterable nor reproducible representation yet consistent with the signature affixed upon the oath of office provided to the licensing County Clerk in which “notary public’s certificate of official character is filed” (NY CLS Exec § 137).
In this instant matter, Plaintiff counsel’s argument that his signature is whatever he says it is, is indeed consistent with statutory and case law for the lay person principal signatory, although such inconsistency may be problematic in personal transactions. Not so, for Plaintiff counsel’s signature as the notary public of the Kuperman Affidavit. His notary public signature cannot be fungible from one moment in time to another nor from one document to another. Rather, it must be reliably consistent with his unique, capable of independent verification and not easily alterable nor reproducible signature as affixed to his notarial oath of office filed in the Richmond County Clerk’s Office, pursuant to the legislative intent, purpose and the industry standards (Plaintiff’s Exhibit A, NYSCEF document #14). Of note, Plaintiff counsel as the notary public is also the attorney signatory to the Statement of Authorization for Electronic Filing of which his signature affixed thereto is not “February” (NYSCEF document #15). Nevertheless, Plaintiff counsel’s claim at oral argument that “February” as affixed in the Kuperman Affidavit is his signature is herein credited.[FN11] Nevertheless, based upon the totality of the circumstances herein, This Court irrefutably finds that “February” is not his non-fungible notarial signature affixed to his notarial oath of office filed in the Richmond County Clerk’s Office. Therefore, This Court finds that the Kuperman Affidavit is defective in form for the failure of the notary public to have affixed his signature consistent with his signature that is affixed to his oath of office filed in the Richmond County Clerk’s Office.
Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.
For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.
Defendant’s Motion for Summary Judgment is Granted to the extent that Defendant has been found to have timely issued its Denials and the triable issue of fact is the Outstanding Verification Requests.
This Constitutes the Decision and Order of This Honorable Court.
Date: April 1, 2025Brooklyn, New York
Hon. Sandra Elena Roper
Judge of the Civil Court
Footnote 1:“Plaintiff’s counsel responded, asserting that the notary public in question—who was also Plaintiff’s counsel—could confirm that the signature of the notary was authentic and is that of plaintiff’s counsel, even if it was not in the form of a full legal name. Plaintiff’s counsel argued that a notary’s signature need not be the notary’s full legal name, but rather any mark or representation that the notary can confirm as their signature” (Plaintiff’s Memorandum of Law, NYSCEF document #17).
Footnote 2:“Though individuality and legibility seem as if they ought to be essential traits of a signature, that’s never really been the case. Starting in the 9th and 10th centuries, scribes validated documents using the sign of the cross. This practice may account for the custom among illiterates of signing an “x” in place of their name. By contrast, among the literate gentility, a signature was not meant to be easily discerned—an intricate and illegible signature, rather than a printed one, suggested an education in handwriting” (Julia Fesenthal, Slate, Give me Your John Hancock https://slate.com/news-and-politics/2011/03/when-did-we-start-signing-our-names-to-authenticate-documents.html [March 18, 2011]).
Footnote 3:See n 2, supra.
Footnote 4:The Guardian, “Whose Scribble is that“
https://www.theguardian.com/australia-news/2023/sep/08/celebrity-famous-person-signatures-quiz#:~:text=Some%20time%20around%203000BC%20a%20Sumerian%20scribe,contracts%2C%20replacing%20the%20seal%20or%20the%20X (March 8, 2023).
Footnote 5:“In ecclesiastical law. The name of a sort of rescript, without seal, containing the supplication, the signature of the pope or his delegate, and the grant of a pardon. In contracts. The act of writing one’s name upon a deed, note, contract, or other instrument, either to identify or authenticate it, or to give it validity as one’s own act. The name so written is also called a “signature” (The Law Dictionary, Signature https://thelawdictionary.org/signature/#:~:text=The%20act%20of%20writing%20one’s,Signatory).
Footnote 6:Merriam-Webster, Signature: Legal Definition https://www.merriam-webster.com/dictionary/signature#:~:text=na%C2%B7%E2%80%8Bture-,1,or%20her%20wishes%20or%20intentions.
Footnote 7:Merriam-Webster, signature by mark https://www.merriam-webster.com/dictionary/signature%20by%20mark.
Footnote 8:Robert T. Koehler, American Association of Notaries, Can a Notary Use a Signature Stamp to Notarize Documents? https://www.notarypublicstamps.com/articles/can-a-notary-use-a-signature-stamp-to-notarize-documents#:~:text=If%20you%20are%20a%20notary,a%20handwritten%20or%20wet%20signature [September 29, 2019].
Footnote 9:See n 8, supra.
Footnote 10:The second question presented: Whether an attorney who is a notary admitted in the State of New York is held to a different standard pertaining to a signature than a non-attorney notary. “No” is the response agreed upon by Plaintiff and Defendant. However, unlike lay-person notary publics, attorney at law notary publics are held to a higher ethical standard. Anecdotally, in the practice of law in avoidance of allegations of legal malpractice or professional misconduct for ethical lapses, it is cautioned that counselors at law by virtue of their heightened ethical oath of office should be wary of notarization of legal documents that they did not draft themselves, particularly wills, deeds contracts and powers of attorney.
Footnote 11:Parenthetically, similarly to judges, certain public figures and professions, such as in the arts, choose a personal signature and a public signature.First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))
Reported in New York Official Reports at First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))
[*1]| First Stop P.T., P.C. v GEICO Ins. Co. |
| 2025 NY Slip Op 50947(U) [86 Misc 3d 1216(A)] |
| Decided on March 26, 2025 |
| Civil Court Of The City Of New York, Richmond County |
| Helbock, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 26, 2025
First Stop
P.T., P.C. As Assignee of Sandy Molina, Plaintiff
against GEICO Insurance Company, Defendant. |
Index No. CV-734838-24/RI
Robert J. Helbock, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:
Papers & nbsp; NumberedNotice of Motion and Affirmation Affidavit annexed dated Sept. 11, 2024 NYSCEF Doc#: 4-10
Affirmation in Opposition dated November 11, 2024 NYSCEF Doc#: 13-14
Affirmation in Reply dated December 5, 2024 NYSCEF Doc#: 15-16
Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:
Plaintiff, FIRST STOP P.T., P.C. (hereafter “Plaintiff” or “First Stop”), as assignee of Sandy Molina (hereafter “Assignor”), commenced this action against the defendant, GEICO INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.
Currently before the Court is Defendant’s motion seeking (i) an order pursuant to CPLR §3212 to grant summary judgment to the Defendant on the grounds that Plaintiff failed to provide GEICO with response to written demands for verification requested pursuant to the N.YS. Insurance Department regulation. (11 N.Y.C.R.R. §65-3.5).
The Court finds the following facts relevant to the decision in this matter.
The Defendant received a bill on May 23, 2023 for treatment rendered by the Plaintiff to [*2]the Assignor on April 14, 2023 in the amount of $614.00. On June 6, 2023 the Defendant requested the Plaintiff to appear for an “examination under oath (hereafter referred to as “EUO”) to take place on July 18, 2023, which was eventually rescheduled to August 29, 2023.
In the same letter making the EUO request dated June 6, 2023, the Defendant asked the Plaintiff to produce the following documents no later than seven days prior to the EUO:
1. “Sign in sheets, treatment notes, evaluation and reevaluation reports, and referrals from other healthcare providers to the extent not already provided;
2. Documents evidencing ownership of First Stop at the time of treatment for which you seek payment, by one or more licensed professionals, including but not limited to a copy of the certificate of incorporation, receipts for filing, stock certificates and the stock ledger for the professional corporation;
3. A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W2s, 1099s, and/or K-1s);
4. Documents relating to the income and expenses of First Stop, including but not limited to payroll tax returns, corporate tax returns, financial statements, general ledgers, and bank statements for the past 12 months; and
5. Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.” (June 6, 2023 letter from Anuj Kundnani from GEICO to First Stop PT PV, including any typographical errors.)
Both sides agree that the Plaintiff appeared for the EUO on August 29, 2024. Then on September 1, 2023 the Defendant’s attorney sent a follow-up letter to the Plaintiff demanding the following documentation:
1. “Copies of all leases between First Stop and primary leaseholders, as well as proof of payment made thereunder the time period of January 1, 2023 to present regarding the following locations (14 addresses listed)… If there are no written leases, rent amounts at each location and names of doctors or clinics who serves as primary lease holder for First Stop;
2. A complete list of employees and individuals who provide or have provided services on behalf of First Stop, documents identifying the relationship between each individual and First Stop, including all W-2s, W-4s, W-9s, 1099s, K-a forms; and documentation identifying the compensation for these individuals, including quarterly payroll returns;
3. All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, including, but not limited to: (i) Mohamed Afify; (ii) Waleed Abdelrohman, (iii) “Dennis”;
4. All Billing agreements and paperwork, and proof of payment thereunder relating to billing (copies of the front and back of checks), between First Stop and (i) RMA Billing and Consulting; and (ii) Billing Experts Inc.;
5. All Functional Capacity Evaluation referral forms from treating providers for patients listed in Exhibit ‘A’;
6. All documentation relating to the employment status for patients listed in exhibit ‘A’; and
7. Copies of any materials disseminated by First Stop on behalf of its practice, including Flyers or business cards.”
The Defendant issued a second letter dated September 18, 2023 requesting verification of the same information requested in the September 1, 2023 letter. Then a follow-up letter was issued requesting the same information again on October 24, 2023.
The Plaintiff responded by a letter from their attorney dated December 28, 2023 in which the attorney raised objections to the requests, and then allegedly provided responses to the requests as follows:
1. In response to Defendant’s verification request #1 in the September 1, 2023 letter the Plaintiff responded:
“Please see Exhibit I and Exhibit 2” (The Court notes, Exhibit I attached to the September 1, 2023 letter included with the motion contains only three (3) leases for 160-59 Rockway Blvd., Jamaica, NY 11434; 1251 Ralph Avenue, Brooklyn NY, 11236; and 146 Empire Blvd., Brooklyn NY 11225, which were attached to the motion. Exhibit 2 contains the front and back of checks from First Stop PT PC made payable to different vendors some of which are labeled as “rent.”)
2. In response to Defendant’s verification request #2 in the September 1, 2023 letter the Plaintiff responded:
“Please see Exhibit 3.” (The Court notes, Exhibit 3, attached to the September 1, 2023 letter included with the motion, contains a document labeled “Payroll Register Report.”)
3. In response to Defendant’s verification request #3 in the September 1, 2023 letter the Plaintiff responded: “Please see Exhibit 4.” (The Court notes, Exhibit 4, attached to the September 1, 2023 letter included with the motion, contains documents labeled as licensing and registration certificates from the NYS Department of Education Department, and an attendance certificate from a medical company.)
4. In response to Defendant’s verification request #4 in the September 1, 2023 letter the Plaintiff responded:
“Please see Exhibit 5 and Exhibit 2.” (The Court notes, Exhibit 5, attached to the September 1, 2023 letter included with the motion, contains marketing material and Exhibit 2 is the cancelled checks referred to above.)
5. In response to Defendant’s verification request #5 in the September 1, 2023 letter the Plaintiff responded:
“Overbroad and irrelevant…” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)
6. In response to Defendant’s verification request #6 in the September 1, 2023 letter the Plaintiff responded:
“Objection: Vague, overbroad and irrelevant….” (The Court notes that no Exhibits were attached or referred to in response to this verification request.)
7. In response to Defendant’s verification request #7 in the September 1, 2023 letter the Plaintiff responded:
“Please see Exhibit 6.” (The Court notes that Exhibit 6 was not included in the documents attached to the motion with the December 28, 2023 letter from the Plaintiff’s attorney.)
By a NF-IO Form dated January 25, 2024, the Defendant denied payment of the bill giving the reason for denial as “Payment is denied. You have failed to comply without verification request of 9/18/2023 within 120 days of such request or provide us with written proof providing reasonable justification for your failure to comply with the verification request.”
The Plaintiff instituted this action by a summons and complaint filed June 20, 2024. The Defendant filed an answer with the Court on July 30, 2024. The Defendant filed this motion for summary judgment on September 11, 2024. The Plaintiff filed opposition to the motion on November 11, 2024, and a reply was filed on December 5, 2024. The parties argued the motion on December 19, 2024 along with motions for summary judgment in actions between the same parties in NYC Civil Court Index Numbers CV-734903-24/RI, CV-734948-24/RI, CV-735025-24/RI. The Court reserved decision on all of these motions.
Discussion
The claim procedure for payments pursuant to a New York automobile insurance policy (hereafter referred to as a “No-Fault” policy) are set forth in detail by the regulations of the NYS Insurance Department in the New York Codes, Rules and Regulations (NYCRR) Title 11, Chapter III, Subchapter B, Part 65, Subpart 65-3 (hereafter referred to as 11 NYCRR §65-3 et. seq.). Section 65-3.5 sets forth the particulars of the claim procedure. Paragraphs (a) and (b) of that section provide:
“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF-2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed the verification forms it will require prior to payment of the initial claim.
(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification form. Requests by an insurer for additional verification need not be made on any prescribed or particular form… 11 NYCRR §65-3.5(a-b).
Pursuant to this section, the “initial verification request” made by the insurance
carrier is to direct an applicant, who notifies the carrier of a claim, to file the specifics of
the claim on the designated form. The Superintendent provides the forms for the claim
(NF-2 and NF-3). (11 NYCRR §65-3.5 [a]) The “subsequent” verification request
must be made in 15 business days for any additional information required,
however, the response to this request does not have to be on any particular form. (11
NYCRR §65-3.5[b]) The regulations require a “follow-up” verification request if
there is no response to the subsequent verification request within thirty days. (11
NYCRR §65-3.6[b]) However, the follow-up request does not toll the time to issue
the denial. The claim need not be denied until timely verification is provided. (11
NYCRR §65-3.8)
The regulations do not provide for a fourth or “supplemental” verification request after the response to the “subsequent” verification request is received. While the regulations do not preclude such a request, the time to file any denial of claim is not tolled by such a fourth request. If it did, this verification process would be endless, contrary to the public policy of swiftly addressing the payment of the bills. (LMK Psychological Services, PC, v. State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]).
However, the regulations are clear that the insurance carrier is entitled to receive proper proof of claim made in the initial and subsequent verification requests. (11 NYCRR §65-3.8). Likewise, the Court of Appeals is clear that the insurance carrier is entitled to delay or deny payments to an unlicensed or fraudulently licensed health care provider. (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Courts have permitted the insurance carrier to delay payments of invoices to investigate such unlicensed or fraudulent behavior within the time constraints provided by the regulations.
In this instance, the “subsequent” verification request was made by the letter of June 6, 2023 which outlined the items the Defendant sought to be produced at, or seven days before, the EUO. The EUO was held on August 29, 2023 and by the letter dated September 1, 2023 the Defendant’s attorney notified the Plaintiff that two of the items requested in the June 6, 2023 letter were not supplied by the responses in the EUO, namely:
(3) A list of the individuals who provide health care services on behalf of First Stop, licensing documentation for those individuals, and documents identifying the relationship between each individual and First Stop (i.e. W-2s, 1099s, and/or K-1s);
(5) Documents, contracts and agreements (including proofs of payments thereunder) relating to the relationship between First Stop and any entity or individual that (i) leases space and/or equipment to or First Stop or (ii) provides management, marketing, consulting, administrative, mailing, billing or collection services to First Stop.”
This is information was requested a second time in the letter of September 1, 2023 in the following paragraphs of the letter:
(1) “Copies of all leases between First Stop and primary leaseholders. . .”
(2) “All licenses and certificates for each and every healthcare professional, including physical therapists, and technicians, who provide or have provided services on behalf of First Stop, . . . . .”The remainder of the information requested in the September 1, 2023 letter was new information requested for the first time.
The Plaintiff submitted a response to the verification request by a letter dated December 28, 2023 that included three leases, copies of checks to vendors, and licensing certificates for the medical providers. The Defendant issued a denial of the claim (NF-10) on January 25, 2024 alleging the Defendant failed to comply with the verification request. The Plaintiff contends that it did comply by its response on December 28, 2023.
Decision
The issue raised is whether the Plaintiff’s response to the verification request made by its December 28, 2023 letter with attachments satisfied the demand of the “subsequent” verification request issued June 6, 2023.
In this instance, the subsequent verification request was timely made and issued simultaneously with the request for the EUO. The Defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter. 11 NYCRR §65-3.5(b).
However, that toll does not apply to the time to request the verification. In Burke Physical Therapy, P.C. v State Farm Mutual Automobile Ins. Co. 209 N.Y.S.3d 712 [Second Dept, 2nd, 11th & 13th J.D, 2024]) the Court opined that:
” . . . the regulations do not provide that a toll of the time to pay or deny a claim created by timely additional verification request also grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. (Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 N.Y Slip op 51220[U]; see O & M Med. P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U], indeed, an original request for additional verification made more than 30 days after receipt of a prescribed verification form i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect. ” Burke Physical Therapy, P.C. v State Farm Mutual Auto. Ins. Co., 209 N.Y.S.3d 712, at 714-715, [App. Term, Second Dept., 2nd, 11th, 13th J.D. [2024].)
So, while the time to deny the bill is tolled until the verification is complete, the time to make the subsequent verification requests, 15 business days, is not tolled.
By the letter of September 1, 2024 the Defendant notified the Plaintiff that some of the verification information that was originally requested in the June 6, 2023 letter was still outstanding. That same September 1, 2023 letter also asked for new verification information that was not previously requested in the June 6, 2023 verification request. The new information requested is made more than 15 business days after the receipt of the prescribed initial verification form and therefore is a nullity. (Burke Physical Therapy, P.C v State Farm Mutual Automobile Ins. Co., 209 N.Y.S.3d 712). The Plaintiff is not required to respond to the request for the new information requested in the September 1, 2023 letter, but was still responsible for those items requested in the Defendant’s June 6, 2023 letter that were not provided at the EUO as identified by Defendant’s September 1, 2023 letter.
The Plaintiff’s December 28, 2023 response provided documents allegedly in response to the June verification request. The regulations only require the response provide all the information under the Plaintiff’s “control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o]) The issue of whether the Plaintiff’s verification response satisfies the June 6, 2023 demand is a material issue of fact for trial. If it is determined that the December 28, 2023 letter was responsive to the verification request, then the January 24, 2024 denial would be in error. Therefore, a trial is necessary in this matter.
Accordingly, the Court rules the summary judgment motion is DENIED and the matter is referred to trial on the issue of whether the December 28, 2023 response to the June 6, 2023 subsequent verification request satisfied the request.
This is the decision and order of the Court.
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2025 NY Slip Op 50376(U))Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims (2025 NY Slip Op 50376(U))
[*1]| Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. PIP/BI Claims |
| 2025 NY Slip Op 50376(U) |
| Decided on March 24, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 24, 2025
Burke Physical Therapy, P.C. A/A/O RAMSEY, AKEEM, Plaintiff(s),
against State Farm Mutual Automobile Insurance Company PIP/BI Claims, Defendant(s). |
Index No. CV- 704992-20/KI
The Rybak Firm, PLLC, Brooklyn, for Plaintiff
McDonnell, Adels & Klestzick, PLLC, Garden City, for Defendant.
Sandra Elena Roper, J.
Upon the foregoing cited papers and after oral argument, Plaintiff’s Motion to Dismiss Affirmative Defenses and Advanced Motion to Compel Discovery; and Defendant’s Cross-Motion for Summary Judgment are Decided hereby as follows:
Defendant’s Cross-Motion for Summary Judgment is GRANTED; and Plaintiff’s Motions to Dismiss Affirmative Defenses and to Compel Discovery are DENIED as moot.
This Court finds that Defendant demonstrated Plaintiff failed to comply with the timely verification requests issued pursuant to 11 NYCRR §65-3.5(o) within 120 days, and that Plaintiff failed to demonstrate that it provided the requested verification or set forth a reasonable justification for its failure to comply with Defendant’s verification requests, as required pursuant to 11 NYCRR §65-3.5(o). Defendant submitted admissible evidence that it had not received the requested documentary verification. In Plaintiff’s first affirmation in opposition submitted, Doc. 10 on NYSCEF, the affidavit of Plaintiff’s owner merely states he mailed the requested verification on 5/16/19 to the address designated by the Defendant on the verification requests “to the extent such response was proper and, in [his] possession,” and without any corroborating documentary proof of compliance with the verification requests. Rendering, the affidavit insufficient to meet its burden (see NYSCEF Doc. 20 paragraph 6). This language has been found by Appellate Term 2nd Department to be “insufficient to raise a triable issue of fact.” In paragraph 8 of that same affidavit, Plaintiff attests that he “responded to and mailed all requested documentation that was “proper and which Plaintiff had access to” (see Doc. 20 paragraph 8). Furthering the insufficiency of this affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]).
In Plaintiff’s Amended Opposition filed fifteen (15) months after Defendant served its Reply [*2]affirmation, Doc. 27 on NYSCEF, the amended affidavit of Plaintiff’s owner merely states that he mailed the requested verification responses on 5/16/19 to the address designated by Defendant on its verification requests. Yet, in paragraph 8 of that same affidavit, Plaintiff’s affiant still qualifies his response in attesting that he “responded to and mailed all requested documentation that was ‘proper and which Plaintiff had access to'”, and yet still without corroborating documentary proof of compliance with the verification requests. Once again, rendering the amended affidavit insufficient to meet its burden (see Doc. 27 paragraph 8). And yet again, furthering the insufficiency of this amended affidavit to raise a triable issue of fact pursuant to the Appellate Term 2nd Department. Therefore again, Plaintiff failed to demonstrate that it had provided responses to the requested verifications or alternatively, failed to set forth a reasonable justification for its failure to comply with Defendant’s verification requests (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143 [A] [App. Term 2nd Dept. July 1, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 77 Misc 3d 129 [A] [App. Term 2nd Dept. December 9, 2022]; Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2023 NY Slip Op. 50794 [U] [App. Term 2nd Dept. July 21, 2023]).
Plaintiff submits 197 pages of correspondences from Plaintiff to Defendant objecting to the verification requests stating that State Farm was not entitled to the information requested and unilaterally determined the verification requests to be a nullity (see Doc. 37 of Plaintiff’s Amended Opposition). This issue was specifically addressed in a recent Appellate Term 2nd decision dated February 14, 2025. In Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195(U) (App. Term 2nd Dept.), The Court held, “Contrary to plaintiff’s further contention, it was not improper for defendant to seek, during the claim verification stage, information – such as management agreements, W-2 forms, business-related bank records and lease agreements — for the purpose of determining whether plaintiff was ineligible to collect no-fault benefits due to a failure to meet licensing requirements (see 11 NYCRR 65-3.16[2] [12]; State Farm Mut. Aut. Ins. Co. v. Mallela, 4NY3d 313, 827 NE2d 758, 794 NYS 2d 700 [2005]).” Moreover, the Court further held, “[a]s plaintiff objected to the verification requests claiming they were nullities, the record establishes that plaintiff did not “provide within 120 calendar days from the date of the initial request either all such verification under [plaintiff’s] control or possession or written proof providing reasonable justification for the failure to comply’ (11 NYCRR 65-3.5 [o]). Consequently, the arguments raised on appeal lack merit” (id. at [*3] [*4], 2025 NY Slip Op 50195 [U] [App. Term 2nd]).
Further, This Court rejects Plaintiff’s alternative argument that the voluminous correspondences of objections rendering Defendant’s verification requests as nullities, nevertheless sets forth a reasonable justification for its failure to respond thereby establishing a triable issue of fact (see Burke Physical Therapy, P.C. v. State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 50195 [U] [App Term 2nd Feb. 14, 2025]; City Care Acupuncture, P.C. & Jamaica Wellness Med., P.C., a/a/o Sergheiciuc v. Allstate Prop. & Cas. Ins. Co., No. 2015-1846 Q C, 2017 WL 6543604, at *[1] [App. Term, 2d, 11th, & 13th Jud. Dists. 2017]; Remedy Chiropractic, P.C. v Nationwide Ins. 2022 NY Slip Op 50935 [U] [App. Term 2nd Dept September 23, 2022]). Defendant has met its burden for summary judgment as a matter of law. Plaintiff fails to establish a scintilla of a triable issue of fact in rebuttal upon the shifting of the burden.JL.
Therefore, Plaintiff’s Complaint is hereby DISMISSED with PREJUDICE.
This Constitutes the Decision and Order of The Court.
Date: March 24, 2025
Brooklyn, New York
Hon. Sandra Elena Roper, JCCPedro Torres-Jimenez MD, P.C. v American Access Cas. Co. (2025 NY Slip Op 50358(U))
Reported in New York Official Reports at Pedro Torres-Jimenez MD, P.C. v American Access Cas. Co. (2025 NY Slip Op 50358(U))
[*1]| Pedro Torres-Jimenez MD, P.C. v American Access Cas. Co. |
| 2025 NY Slip Op 50358(U) [85 Misc 3d 1236(A)] |
| Decided on March 13, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 13, 2025
Pedro
Torres-Jimenez MD, P.C. a/a/o Padilla, Jenifer, Plaintiff(s),
against American Access Casualty Company, Defendant(s). |
Index No. 732854-22/KI
The Rybak Firm, PLLC, Brooklyn, for Plaintiff
No appearance by Defendant.
Sandra Elena Roper, J.
This Honorable Court Decides and Orders without opposition, Plaintiff’s Motion for Default Judgment against Defendant pursuant to CPLR 3215 and CPLR 320 is hereby DENIED.
It is well settled, “a process server’s affidavit of service gives rise to a presumption of proper service” which may be rebutted by “[a] sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit”, resulting in a traverse hearing (Wells Fargo Bank, NA v Tobing, 175 AD3d 745, 747 [2d Dept 2019]), citing Deutsche Bank Natl. Trust Co. v O’King, 148 AD3d 776, 776 [2d Dept 2017]; see Citibank, N.A. v Balsamo, 144 AD3d 964, 964 [2d Dept 2016]; see Palma v Apatow, 230 AD3d 1244, 1245 [2d Dept 2024]). However, where the affidavit of service on its face presents deviation of, or inconsistency with strict adherence to the statutory method of service relegates the affidavit of service void ab initio. Therefore, its validity is not an issue for a sworn fact-finding traverse hearing but rather decided as a matter of law.
It is a foundational legal principle that the “court lacks personal jurisdiction over a defendant who is not properly served with process” even where defendant receives timely notice of the action. ” (Palma at 1245, citing Everbank v Kelly, 203 AD3d 138 [2d Dept 2022]). In this instant matter, affidavit of service states effectuated pursuant to VTL § 253.
“1. The use or operation by a non-resident of a vehicle in this state, or the use or operation in this state of a vehicle in the business of a non-resident, or the use or operation in this state of a vehicle owned by a non-resident if so used or operated with his permission, express or implied, shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while using or operating such vehicle in this state or in which such vehicle may be involved while being used or operated in this state in the business of such non-resident or with the permission, express [*2]or implied, of such non-resident owner; and such use or operation shall be deemed a signification of his agreement that any such summons against him which is so served shall be of the same legal force and validity as if served on him personally within the state and within the territorial jurisdiction of the court from which the summons issues”(Vehicle and Traffic Law § 253).
Here, Plaintiff commenced this case against Defendant, an Illinois No Fault corporate insurance carrier, for reimbursement for medical services rendered to the assignor. The Legislative Intent of VTL § 253 envisioned to subject the nonresident natural person owners or operators who are parties in motor vehicle accidents within New York State, to be served process upon the Secretary of State with subsequent mailing requirements. Defendant is not a nonresident operator, nor a nonresident owner in strict compliance with VTL § 253 (Rosa v Allstate Ins. Co., 981 F2d 669, 671 [2d Cir 1992]). Therefore, as a matter of law, this method of service is improper on its face and void ab initio. Plaintiff failed to properly effectuate service of process divesting This Court of jurisdiction over Defendant.
For the forgoing reasons Plaintiff’s Default Judgment is hereby Denied and Case is dismissed without prejudice.
This constitutes Decision and Order of Court.
Date: March 13, 2025Brooklyn, New York
Hon. Sandra Elena Roper, J.C.C.Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2025 NY Slip Op 50315(U))
Reported in New York Official Reports at Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2025 NY Slip Op 50315(U))
[*1]| Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. |
| 2025 NY Slip Op 50315(U) [85 Misc 3d 1231(A)] |
| Decided on March 11, 2025 |
| Civil Court Of The City Of New York, Richmond County |
| Pinto, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 11, 2025
Big Apple Delivery
Supply Corp. AS ASSIGNEE OF AMADOU NDIAYE, Plaintiff
against Plymouth Rock Assurance Corporation of New York, Defendant |
Index No. CV-745565-23/RI
Kopelevich & Feldsherova PC for Plaintiff
Nicolini, Paradise, Ferretti & Sabella for Defendant
Michael J. Pinto, J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:
Papers NYSCEF NumberedNotice of Motion and Affirmation/Affidavit annexed 18-29
Affirmation in Opposition 34
Affirmation in Reply 35
Upon the foregoing cited papers, and after argument, the decision on Defendant’s Motion for Summary Judgment is as follows:
Plaintiff, BIG APPLE DELIVERY SUPPLY CORP. (hereinafter, “Plaintiff”), as assignee of AMADOU NDIAYE (hereinafter, “Assignor”), commenced this action against the defendant, PLYMOUTH ROCK ASSURANCE CORPORATION OF NEW YORK (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.
Defendant filed a motion for summary judgment, pursuant to CPLR 3212, based on the grounds that (i) the services provided were not medically necessary; (ii) the Plaintiff did not bill pursuant to the appropriate fee schedule; and (iii) the policy limits have been exhausted. Plaintiff submitted opposition to Defendant’s motion, and the Defendant submitted an affirmation in reply. The motion was argued before the undersigned and submitted.
The Plaintiff initiated this action seeking payment for two bills for services rendered on May 18, 2023 (the “May bill”), and June 19, 2023 (the “June bill”). The Defendant denied both bills on the grounds that the services provided were not medically necessary. The Defendant [*2]further denied the June bill on the basis that it was billed in excess of the appropriate fee schedule. The Defendant states that as of the date of the motion, the policy has been exhausted. In support of its motion, the Defendant offers an affirmation of Betsy Druckman (the “Druckman Affirmation”), a New York no-fault litigation specialist for Plymouth Rock Management Company of New Jersey, an entity which manages the Defendant. Among the Defendant’s exhibits are two peer reports by Dr. Richard Coven, a fee schedule report by Kimberly Spahr, the bills and denials at issue, and various policy documentation.
Ms. Druckman states that she is personally familiar with the standard business practices of the Defendant, specifically relating to the processing of incoming claims, the preparation and issuance of correspondence, and denials. The Druckman Affirmation provides a detailed analysis of how claims are processed and how documents are created in relation to those claims. It further details the process on how denials are printed, addressed, and mailed to the appropriate providers. Ms. Druckman specifically addresses the bills at issue in this matter and the creation of the denials in connection with the bills. She states that the May bill, received on June 26, 2023, was denied on July 13, 2023; and the June bill, received on July 28, 2023, was denied on August 16, 2023. Lastly, she incorporates as Defendant’s business records the denials, the policy, and payment ledger.
Defendant argues that there was no medical necessity for the medical supplies provided by the Plaintiff in connection with the May bill and the June bill. Annexed to the Defendant’s motion are Dr. Coven’s peer review reports, dated June 10, 2023 (for the May bill) and August 14, 2023 (for the June bill). In both reports, Dr. Coven opines that there was no medical necessity for the provided supplies. Defendant also seeks summary judgment on the basis that the Plaintiff billed in excess of the proper fee schedule. In support, the Defendant submits an affidavit of Kimberly Spahr, a professional coder, which demonstrates the excess billing. Lastly, the Defendant argues that, as of August 22, 2024, the policy has been exhausted, annexing a payment log that states all payments made on the policy.
In opposition, Plaintiff argues that the Defendant failed to lay a proper foundation for the annexed documents. Specifically, Plaintiff argues that Dr. Coven’s peer review reports are inadmissible because they are electronically signed. Plaintiff further argues that the Defendant failed to establish it timely mailed the denials at issue in this case and failed to establish its defenses of improper billing and policy exhaustion. In reply, Defendant does not deny that Dr. Coven’s reports are electronically signed, but rather argues that the Plaintiff has not proffered any expert analyses regarding Dr. Coven’s signatures.
A motion for summary judgment should be granted if “upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties.” (CPLR 3212). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Cooperative, Inc. v Briarcliff Farms, Inc., 17 NY2d 57 [1966]).
A presumption of proper mailing may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (New York & Presbyt. Hosp. 29 AD3d 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).
Based upon the evidence submitted by the Defendant, the Court finds that the Defendant established that it timely denied Plaintiff’s bills at issue. The affirmation of Betsy Druckman, [*3]submitted in support of Defendant’s motion, establishes that the Defendant timely denied Plaintiff’s bills and set forth the procedures for the creation and mailing of claim denial forms.
The Court first turns into attention to the Defendant’s denials on the basis of lack of medical necessity. Defendant presents the peer review reports of Dr. Coven who concludes that based upon his experience and review of the medical records there was no medical necessity for the supplies provided by the Plaintiff in relation to the May bill and the June bill.
In opposition, Plaintiff argues that Dr. Coven’s reports are inadmissible in that they were signed with an electronic signature, rather than “a fluid stroke of a hand signature.”[FN1] Plaintiff states that the reports fail to satisfy the requirements set forth in Vista Surgical Supplies, Inc. v Travelers Ins. Co., and is inadmissible (50 AD3d 778 [2d Dept 2008]). In Vista Surgical Supplies, Inc., the Appellate Division, Second Department, held that peer review reports “failed to comply with CPLR 2106, since they were not subscribed and affirmed, but merely contained facsimiles of the physician’s signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized” (Id.).
Since Vista Surgical Supplies, Inc. was decided, the Appellate Division, Second Department, has repeatedly held that reports utilizing electronic signatures are admissible, pursuant to State Technology Law §§ 302 (3) and 304 (2).[FN2] In Aziz v Friendly Tr., Inc., the court held that “[c]ontrary to the plaintiffs’ contention, the expert reports submitted by the defendants in support of their motion, which were electronically signed, were admissible” (231 AD3d 780, 781 [2d Dept 2024]).[FN3] Likewise, in Ramirez v Miah, the court held that the electronic signature on the physician’s affirmed report was “sufficient to render the report admissible,” overturning the Supreme Court’s decision (166 AD3d 690, 691 [2d Dept 2018]).
In Vista Surgical Supplies, Inc., the court found the report inadmissible because it was not subscribed and affirmed in compliance with CPLR 2106. With that understanding, this Court must determine whether Dr. Coven’s reports were properly subscribed and affirmed within the meaning of CPLR 2106. Based upon the facts herein and recent appellate authority, this Court finds that Dr. Coven’s reports are properly subscribed and affirmed by his electronic signature, and the reports are admissible.
Dr. Coven’s peer review reports are dated July 10, 2023, and August 14, 2023, before the recent amendments were made to CPLR 2106. Prior to January 1, 2024, an affirmation by a physician was authorized in lieu of an affidavit when it was “subscribed and affirmed by him to be true under the penalties of perjury” (CPLR 2106).
Section 304(2) of the State Technology Law states “an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” In Naldi v Grunberg, the First Department, held that the word “subscribed” in relation to General Obligations Law § 5-703 “should now be construed to include, respectively, records of electronic communications and electronic signatures” (80 AD3d 1, 12 [1st Dept 2010]). The Second Department cited to Naldi in holding that an electronic signature may be deemed a “subscribed writing” (Forcelli v Gelco Corp., 109 AD3d 244, 251 [2d Dept 2013]). The Second Department has continuously cited Forcelli in finding that electronic signatures are sufficient to render physician reports admissible.[FN4] Based upon this appellate authority, this Court finds that Dr. Coven’s electronic signature constitutes a subscribed writing. The Court also finds that the reports contain the appropriate affiant language, specifically that Dr. Coven “hereby affirm[s] under the penalty of perjury that the statements contained herein are true and accurate.” Accordingly, the Court holds that the Dr. Coven’s reports comply with the requirements of CPLR 2106 and are admissible for purposes of this motion.[FN5] The Court finds the Plaintiff’s remaining arguments regarding the admissibility of the peer review reports to be without merit.
In the July 10, 2023, report, Dr. Coven finds that the medical supplies provided on May 18, 2023, by the Plaintiff were not medically necessary. Likewise, Dr. Coven makes the same finding in his report dated August 14, 2023, for the supplies provided on June 19, 2023. The Defendant has established its entitlement to summary judgment on grounds that the services provided were not medically necessary. The Plaintiff has failed to offer any affirmation or testimony to rebut Defendant’s showing. Therefore, the Defendant is entitled to summary judgment.[FN6]
As the Court grants summary judgment on the grounds of lack of medical necessity, it does not consider the remaining branches of the Defendant’s motion.
Accordingly, it is hereby
ORDERED that the Defendant’s motion is GRANTED in its entirety; and it is further
ORDERED that the matter is DISMISSED.
The foregoing constitutes the Decision and Order of the Court.
Date: March 11, 2025Staten Island, New York
Hon. Michael J. Pinto
Judge, Civil Court
Footnote 1:As the Defendant has failed to rebut the Plaintiff’s argument that the peer reports are electronically signed, this Court continues under the presumption that both peer reports were signed electronically.
Footnote 2:The disputed report in Vista Surgical Supplies, Inc. utilized a “stamped facsimile of the doctor’s signature” (Vista Surgical Supplies, Inc. v Travelers Ins. Co., 14 Misc 3d 128(A) [App Term 2006], affd, 50 AD3d 778 [2d Dept 2008].
Footnote 3:A review of the contested physician affirmations filed in the Supreme Court reveals that the attestation clauses contain no further indicia of authorization than that which is present in the current matter.
Footnote 4:See Aziz v Friendly Tr., Inc., (231 AD3d 780 [2d Dept 2024]); Ramirez v Miah, 166 AD3d 690 [2d Dept 2018]).
Footnote 5:As the Court finds that the peer reports are properly subscribed and affirmed, the Court believes its decision is in accordance with the Appellate Division’s holding in Vista Surgical Supplies, Inc.
Footnote 6:While the majority of the analysis is devoted to the admissibility of electronically signed peer reports, the Defendant would be entitled to summary judgment whether the peer reports were signed electronically or by hand.KBJ Med. Practice, P.C. v Lancer Ins. Co. (2025 NY Slip Op 50277(U))
Reported in New York Official Reports at KBJ Med. Practice, P.C. v Lancer Ins. Co. (2025 NY Slip Op 50277(U))
[*1]| KBJ Med. Practice, P.C. v Lancer Ins. Co. |
| 2025 NY Slip Op 50277(U) |
| Decided on March 3, 2025 |
| Civil Court Of The City Of New York, Bronx County |
| Rivera, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 3, 2025
KBJ Medical Practice, P.C. AAO ISMAEL SEJOUR, Plaintiff
against Lancer Insurance Co., Defendant |
Index No. CV-716872-22/BX
Attorneys for Plaintiff: Sanders Grossman Aronova, PLLC
Attorneys for Defendant: Hollander Legal Group, PC Brenda Rivera, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers NumberedMotion 1
Opposition 2
Reply 3
Defendant moves pursuant to CPLR 3212 for an Order granting summary judgment based on the Assignor, Ismael Sejour’s failure to attend an examination under oath. On a motion for summary judgment, the moving party must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. CPLR § 3212(b); Friends of Thayer Lake LLC v. Brown, 27 NY3d 1039 (2016); Kershaw v. Hosp. for Special Surgery, 114 AD3d 75 (1st Dept. 2013). Thus, on this summary judgment motion, Defendant has the burden of demonstrating that there are no issues of fact regarding whether proper notices of the examination under oath were mailed to the Assignor, and that the Assignor failed to appear for the examination under oath. Bath Ortho Supply Inc. v New York Central Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U), (App Term, 1st Dept 2002).
In order to meet this burden, the movant may submit an affidavit by someone with personal knowledge of the facts establishing that the Assignor was properly noticed and failed to appear. CPLR 3212(b). In 2024, the Legislature eased the affidavit requirement by permitting the submission of an affirmation instead. CPLR 2106. In support of the motion, Defendant submits the affirmation and affidavits of its attorney Mr. Allan S. Hollander, President of Hollander Legal Group, PC (Attorney) to establish that the notices directing the Assignor to appear were properly mailed and that the Assignor failed to appear. The Attorney’s affirmation and affidavits use many of the boilerplate language tailored to meet the statutory requirements such as: that the mailings were created and maintained in the ordinary course of business, that Defendant has the duty to create and mail the documents in the ordinary course of business, that [*2]the affidavit is made from personal knowledge, that the record is made at or near the time of the alleged transaction, and/or that the affiant has personal knowledge of the facts because they oversee the department or the office procedures. However, it is not sufficient to merely recite buzz words or boilerplate language tailored to meet evidentiary requirements. The affiant must demonstrate that the information alleged is obtained by personal knowledge of the facts from the affiant’s personal observation, personal experience, or personal involvement in the process. See: 5 N.Y.Prac., Evidence in New York State and Federal Courts § 6:18; and John H. Wigmore, Evidence in Trials at Common Law § 657 (Chadbourn rev. 1979)(personal knowledge is the impression derived through the exercise of one’s senses, not from the report of others).
Although the Attorney states that he oversees all the office procedures, he does not establish personal knowledge from observation or involvement with the procedures. The Attorney also states that his knowledge is “based upon a review of the file maintained by this office,” and that “counsel for” Defendant or “an individual with personal knowledge of the information therein” created and mailed the notices. Thus, contradicting the allegation of personal knowledge. Moreover, the Attorney states that the notices were mailed via the United States Post Office by certified mail, return receipt requested and first-class mail. However, the notices attached to the motion indicate that the notices were only sent via first-class mail. The Attorney also fails to attach proof of certified mail, which would have met the burden. The contradictory affidavit and notices raise issues of fact as to whether the notices were properly mailed and whether the Attorney has personal knowledge.
Alternatively, the movant may also meet its burden by providing proof of the actual mailings, such as affidavits/affirmations of mailing or post office receipts with attendant signatures, or by establishing the presumption of mailing and receipt by providing proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure. U.S. Bank N.A. v Pickering-Robinson, 197 AD3d 757 (2021) quoting Citibank, N.A. v Conti-Scheurer, 172 AD3d 17 (2019); see Caliber Home Loans, Inc. v Weinstein, 197 AD3d 1232 (2021). In order for the presumption of mailing and receipt to arise, the standard mailing procedures followed by insurers in the regular course of business must be geared so as to ensure the likelihood that a notice is always properly addressed and mailed. Nassau Insurance Company v Diane M. Murray et al., 46 NY2d 828 (1978). This is the standard of proof that is often misapplied as Defendant insurers often recite boiler plate language describing their office procedures but do not establish that the office procedures ensure that the notices are always properly addressed and mailed.
As proof of its standard office procedure, Defendant submits the affidavit of Lenny H. LaFace, (LaFace) a Senior No-Fault Examiner located in Long Beach, New York. LaFace states that he is the custodian of the records, that the records were created by a person with knowledge of the facts or were made from information transmitted by a person with knowledge of the facts, that the records were made near the time of the transaction, that the records were created and kept in the regular course of business, and that he has personal knowledge of Defendant’s regular business practices relating to the handling of No-Fault claims. LaFace also describes the procedures for mailing notices which involves a chain of custody of at least two employees and coordination with separate offices when examinations under oath, verification requests, or independent examinations are requested. However, LaFace’s affidavit merely recites hearsay information and boilerplate language tailored to meet mailing requirements, and while the procedures described may increase the likelihood that notices are properly addressed and mailed, [*3]the procedures described fall short of the required standard to “ensure the likelihood that a notice is always properly addressed and mailed.” Thus, the mere recitation of boiler plate language describing standard office procedures is not sufficient where the office procedures do not ensure the likelihood that a notice is always properly addressed and mailed, particularly where the affiant is not personally involved in the process and the notices are handled by more than one person. One way to meet the burden and to establish that the office procedures “ensure the likelihood that the notice is always properly addressed and mailed” is to have each employee electronically log or document the chain of custody of the notice with their name, date and time each notice is handled along with a copy of the log. The affirmation/affidavit submitted on the motion should include said information, instead of generically reciting that an employee followed the office procedures. While this appears to add extra steps to the process, it is a necessary step as the grant of summary judgment deprives a litigant of their day in court and the burden to eliminate all triable issues is a very high burden which may not be based upon hearsay information, generic or boilerplate language.
Therefore, the court finds that Defendant failed to meet the burden of demonstrating the absence of any material issues of fact with respect to whether the Defendant mailed to the Assignor the notices to appear for the examination under oath. However, Defendant met its burden in establishing that the Assignor failed to appear at the examination under oath by submitting a certified transcript by a non-interested reporter and the Attorney’s affidavit of personal knowledge establishing the Assignor’s nonappearance.
Accordingly, Defendant’s motion is granted only to the extent of granting that portion of the motion finding that the Assignor failed to appear at an examination under oath and leaving the issue of the proper mailing of the notice to appear to be determined at trial.
Date: March 3, 2025Hon. Brenda Rivera, JCCMedical Supply of NY Servs. Inc. v State Farm Mut. Auto Ins. Co. (2025 NY Slip Op 50301(U))
Reported in New York Official Reports at Medical Supply of NY Servs. Inc. v State Farm Mut. Auto Ins. Co. (2025 NY Slip Op 50301(U))
[*1]| Medical Supply of NY Servs. Inc. v State Farm Mut. Auto Ins. Co. |
| 2025 NY Slip Op 50301(U) |
| Decided on February 21, 2025 |
| Civil Court Of The City Of New York, Richmond County |
| Helbock, Jr., J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 21, 2025
Medical Supply of NY Services Inc. AAO Felix Juma Diaz, Plaintiff,
against State Farm Mutual Auto Ins. Co., Defendant. |
Index No. CV-719638-23/RI
Robert J. Helbock, Jr., J.
The Decision//Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:
The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023. On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Notice of Entry for the decision and order was filed April 2, 2024.
The Defendant filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision. Plaintiff filed opposition on October 21, 2024. Arguments were heard on December 19, 2024, and decision was reserved.
This Court held in the March 27, 2024 decision that the Defendant did not meet its burden of proof to establish that the Assignor failed to appear for the two scheduled EUOs. This Court held that the Defendant did not submit an affidavit or affirmation from an attorney present to conduct the EUO, only transcripts of the EUO.
Here, Defendant alleges that this Court misapprehended facts or law when issuing the Order dated March 27, 2024, because the Court overlooked the affidavit of Richard Aitken, Esq. In his affidavit, Mr. Aitken states that “[o]n December 7, 2022, FELIX JUMA DIAZ failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP placed a default statement on the record.”
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 [*2]any matters of fact not offered on the prior motion. CPLR §2221.
“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Midfirst Bank v. Agho, 121 AD3d 343, (Sup. Ct., App Div., 2nd Dept., August 13, 2014), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) “The submitted evidence in support of summary judgment must be in a form admissible at trial.” (Midfirst Bank v. Agho, 121 AD3d 343, [2014]) emphasis added.
An affidavit/affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance. (Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130[A] [App. Term 2013].) In Alrof, the Court opined the affidavit submitted by defense counsel was of no probative value because his “personal knowledge” came from a review of the file. An affirmation submitted by an attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, is sufficient to establish that plaintiff had failed to appear. (Nat. Therapy Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 986 N.Y.S.2d 866 [App. Term 2014].)
The Court in New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., (45 Misc 3d 758 [NY County, 2014]) superbly explained the Appellate Term’s rulings in Alrof and its progeny. The elements of the proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO of the witnesses on the schedule dates; that no one affiliated with the witness appeared for the EUO on those dates; that had the witness appeared for the scheduled EUO the affirmant, or an attorney the affirmant assigned that day, would have conducted the EUO of the witness. New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., 45 Misc 3d 758, 760-762.
In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. Paragraph’s 4 and 6 of the affirmation state:
“On (relevant date) Felix Juma Diaz failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP, placed a default statement on the record. A certified copy of the default statement is annexed hereto as Exhibit G”.
The affidavit only states that the attorney placed a default statement on the record. Such a statement could have been made virtually, and therefore the deponent may not personally observe whether the witness attended. The act of placing the statement on the record does not mean the deponent was present at the scheduled time and location for the EUO. Without stating the attorney was present to observe the non-appearance, the declaration that the witness failed to appear is nothing more than a hearsay conclusory statement. The defense attorney’s statement did not meet the criteria described in New Capital Supply, Inc., et. al. above.
Furthermore, the transcript of EUO statement itself is not admissible evidence to be considered for a summary judgment motion. Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A) (Sup. Ct., App. Term, 2,11,13 Jud. Dist., April 1, 2022). While a deposition may be introduced as evidence provided the provisions of CPLR §3116 & §3117, the deponent did not submit a foundation for consideration of the transcript. Without such a [*3]foundation the document is hearsay, and therefore not admissible evidence to be considered regarding the summary judgment motion. Therefore, the Court cannot rely on the statements made within the default statement transcript as evidence or proof that the attorney was present in the office at the time the EUO was scheduled to take place.
Decision
For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because, as stated in the decision, the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.
Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024 denying the Defendant’s motion for summary judgment stands.
This is the Decision and Order of the Court.
Flatbush Acupuncture P.C. v Repwest Ins. Co. (2025 NY Slip Op 25032)Reported in New York Official Reports at Flatbush Acupuncture P.C. v Repwest Ins. Co. (2025 NY Slip Op 25032)
[*1]| Flatbush Acupuncture P.C. v Repwest Ins. Co. |
| 2025 NY Slip Op 25032 |
| Decided on February 13, 2025 |
| Civil Court Of The City Of New York, Queens County |
| Kagan, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the printed Official Reports. |
Decided on February 13, 2025
Flatbush Acupuncture P.C. As Assignee of JOSE DAVID TORRES, Plaintiff,
against Repwest Insurance Company, Defendant. |
Index No. CV-713091-21
Plaintiff
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302, Rockville Centre, NY 11570
Phone: (516) 388-7040
Defendant
HUSCH BLACKWELL LLP
118-35 QUEENS BLVD. SUITE 400, Forest Hills, NY 11375
Phone: (202) 378-2345 Mark Kagan, J.
The defendant Repwest Insurance Company has moved pursuant to CPLR §3212 seeking summary judgement dismissing the action. The plaintiff has cross-moved seeking summary judgement. The motions have been opposed respectively. The court has reviewed all the papers submitted and now renders the following determination.
The assignor, Jose David Torres was involved in a motor vehicle accident on November 20, 2019 and sustained injuries. The plaintiff assignee performed medical services on his behalf and seeks $1,689.70 in payment for those services. The defendant, the insurer of the assignor, refused the payment on the grounds the assignor failed to appear for two scheduled examinations under oath [EUO]. The plaintiff commenced this action seeking payment. The defendant duly answered. The defendant has now moved seeking summary judgement dismissing the action arguing the assignor failed to appear for examinations under oath which is a condition precedent for payment. The plaintiff opposes the motion arguing there was no legitimate basis seeking any examination prior to payment and therefore summary judgement should be granted in plaintiff’s [*2]favor.
Concerning first party no-fault benefits, an insurer may move seeking summary judgement dismissing the action on the grounds the assignor failed to attend a timely-scheduled independent medical examination (Vega Chiropractic P.C. v. Clarendon National Insurance Company, 25 Misc 3d 144(A), 906 NYS2d 776 [Supreme Court Appellate Term Second Department 2009]). For a medical provider to obtain summary judgement there must be evidentiary proof that claims were mailed and received and that payment is overdue (Mary Immaculate Hospital v. Allstate Insurance Company, 5 AD3d 742, 774 NYS2d 564 [2d Dept., 2004]).
The No-Fault regulations permit an insurer to demand “all items necessary to verify the claim directly from the parties from whom such verification is requested” (11 NYCRR §65-3.5(c)). Indeed, there are no limits to the information an insurer may request other than the limitation found in 11 NYCRR §65-3.2(c). That regulation states that an insurer should not demand verification of facts “unless there are good reasons to do so” (id). There are no specific No-Fault regulations that provide any mechanism for a medical provider to contest the verification sought on the grounds it is improper or unnecessary (Burke 2 Physical Therapy P.C. v. State Farm Mutual Automobile Insurance Company, 71 Misc 3d 1229(A), 146 NYS3d 468 [Civil Court Kings County 2021]). Nevertheless, courts have suggested that a provider can specifically respond and object to the information sought (Victory Medical Diagnostics P.C. v. Nationwide Property and Casualty Insurance Company, 36 Misc 3d 568, 949 NYS2d 855 [District Court Nassau County 2012]).
In this case the insurer received bills for payment for services rendered from December 3, 2019 through December 10, 2019. Without paying or denying the bills the insurer sent a letter to the assignor informing him that “additional information is required in order to properly evaluate this claim” and that the assignor would have to submit to an examination under oath (see, Letter dated January 9, 2020 [NYSCEF Doc. No. 6 page 88]). The assignor failed to appear for the examination and a follow up letter was sent dated February 11, 2020 scheduling the examination under oath for February 25, 2020. The assignor failed to appear and never objected to the examinations on the grounds the insurer never provided a basis for such examinations. The claims were subsequently denied and this action was commenced. In seeking summary judgement the insurer argues the assignor failed to appear for the examination under oath and consequently failed to satisfy a necessary condition precedent obligating the insurance company to pay the claim. In opposition, the medical provider argues the insurer failed to present any reasonable basis requiring an examination under oath and therefore, the insurer failed to comply with the No-Fault regulations and the insurer’s summary judgement motion must be denied and summary judgement should be granted in favor of the medical provider.
Concerning 11 NYCRR §65-3.2(c) and the limits imposed upon insurers seeking verification only when there are good reasons to do so, there is some disagreement which party bears the initial burden. In State Farm Mutual Auto Insurance Company v. East Coast Medical Care P.C., 2023 WL 2711659 [Supreme Court New York County 2023] the court explained that once an insurer demonstrates the verification demands were reasonable then the burden shifts to the provider to explain why the demands were not reasonable. However, in Ameriprise Insurance Company v. Pugsley Medical Care P.C., 2016 WL 9176586 [Supreme Court New York County 2016] the court held the burden for reasonableness is on the provider not the [*3]insurer.
In any event, it is clear the information sought must have some rational relationship to the specific claims. Therefore, certain requests for verification are obvious, no explanation is required and are per se reasonable. For example, “requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of x-ray or MRI films or test results” (Garden State Anesthesia Associates PA v. Progressive Casualty Insurance Company, 41 Misc 3d 996, 971 NYS2d 858 [District Court Nassau County 2013]). Likewise, a request to establish medical necessity is reasonable pursuant to 11 NYCRR §65-3.2(c) (Lenox Hill Radiology v. Global Liberty Insurance, 20 Misc 3d 434, 858 NYS2d 587 [Civil Court New York County 2008]).
Turning to the other extreme, some requests are so unreasonable they violate 11 NYCRR §65-3.2(c). In Omega Diagnostic Imaging P.C. v. MVAIC, 29 Misc 3d 129(A), 958 NYS2d 309 [Supreme Court Appellate Term First Department 2010]) the court held a verification request sent to the medical provider and the assignor seeking an affidavit of no-insurance from the out-of-state driver that struck the assignor was without any good reason. The court explained that out-of-state driver was not a party to the first party benefits action and was not under the control of the provider or the assignor. Again, in Pro-Align Chiropractic P.C. v. Travelers Property Casualty Insurance Company, 58 Misc 3d 857, 67 NYS3d 439 [District Court Suffolk County 2017]) the court held the insurer’s requests were not reasonable and were burdensome.
Turning to the specific question whether an insurer must furnish an objective and specific basis why an examination under oath has been requested, it appears to be a split among the Departments of the Appellate Division.
The First Department holds that “the reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion” (American Transit Insurance Company v. Jaga Medical Services P.C., 128 AD3d 441, 6 NYS3d 480 [1st Dept., 2015]). Further, in Country-Wide Insurance Company v. Delacruz, 205 AD3d 473, 168 NYS3d 68 [1st Dept., 2022] the First Department noted that an insurer seeking summary judgement must provide a “specific objective justification” requesting the examination under oath. The court held the reason why an examination was requested was essential to afford the provider an opportunity to oppose the motion seeking to dismiss the action for the failure of the assignor to appear for the examination. Without such reason the motion could not be adequately opposed necessitating its denial on the grounds the motion was premature (see, also, State Farm Mutual Auto Insurance Company v. Quality Orthopedic and Complete Joint Care P.C., 2023 WL 6206098 [Supreme Court New York County 2023] and State Farm Mutual Auto Insurance Company v. Access Medical Diagnostic Solutions P.C., 2023 WL 2572920 [Supreme Court New York County 2023]
The Second Department on the other hand has held the reason why an examination is requested does not play any role whether the request is proper. In Interboro Insurance Company v. Clennon, 113 AD3d 596, 979 NYS2d 83 [2d Dept., 2014]) the court granted summary judgement to an insurer where the assignor failed to attend an examination under oath. Notably, the court held that assignor and the provider failed to raise any issues of fact as to the “propriety of the demand for the examination under oath” (id, see, IDS Property Casualty Insurance Company v. Starcar Medical Services P.C., 116 AD3d 1005, 985 NYS2d 116 [2d Dept., 2004]). Recently, in Northern Medical Care P.C. v. Nationwide Affinity Insurance Company of America, 84 Misc 3d 136(A), 2024 WL 5347270 [Supreme Court Appellate Term Second [*4]Department 2024] the court, citing Interboro (supra) explained that the “defendant was not required to set forth objective reasons for requesting EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground ‘following the [ ] failure to appear at the last scheduled EUO'” (id).
The discrepancy between the departments was presaged in the trial court opinion Country-Wide Insurance Company v. Delacruz, 71 Misc 3d 247, 142 NYS3d 313, footnote 5 [Supreme Court New York County 2021] and in MUA Chiropractic Healthcare PLLC v. Nationwide Mutual Insurance Company, 77 Misc 3d 140(A), 182 NYS3d 488 [Supreme Court Appellate Term Second Department 2022].
Moreover, the approach of the Second Department, which binds this court, does not conflict with 11 NYCRR §65-3.5(e). 11 NYCRR §65-3.5(e) states that “when an insurer requires an examination under oath of an applicant to establish proof of claim, such requirement must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination” (id). However, that does not mean a reasonable basis must be provided. Indeed, the very next sentence of the regulation provides that “insurer standards shall be available for review by department examiners” (id). Two counsel opinions issued by the Department of Financial Services (formerly the Department of Insurance) are illuminating. In the first, the opinion states that “the Department also added the provision in Section 65-3.5(e) to ensure that insurers would not request EUO’s on either a routine or arbitrary basis, but would only do so when reasonably warranted, based upon the application of specific facts to objective standards established by the insurer in order to provide a reasonable basis for the request” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The opinion continued that the Department itself could “perform market conduct examinations of insurers and to evaluate the practices of insurers in requiring EUOs. The regulation contains no requirement for insurers to provide those standards for review by a claimant or claimant’s attorney when an EUO has been requested” (id). Again, in a subsequent opinion, it was held that “with respect to whether an insurer must include language stating the reason(s) for requiring the EUO, the regulation contains no such requirement” (Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Therefore, only the Department of Financial Services can monitor the “specific objective justification” of 11 NYCRR §65-3.5(e), not medical providers seeking reimbursement for claims (see, Bronx Chiropractic Care P.C. v. State Farm Insurance, 63 Misc 3d 132(A), 114 NYS3d 175 [Supreme Court Appellate Term Second Department 2019]). Lastly, there is little merit to the argument that once a request for justification has been made by a medical provider then the above opinions of the Department of Financial Services are no longer relevant and an explanation must be afforded to the provider (cf., Kemper Independence Insurance Company v. Accurate Monitoring LLC, 73 Misc 3d 585, 156 NYS3d 677 [Supreme Court New York County 2021]). As noted, only department examiners are tasked with insuring compliance with the specific rule the insurer must maintain a justification for serving an EUO. That task cannot somehow be abrogated merely because a medical provider requests the justification as well. To the extent those arguments have been accepted (see, e.g., Country-Wide Insurance Company v. Henderson, 77 Misc 3d 1218(A), 178 NYS3d 922 [Supreme Court New York County 2022]) they merely serve to highlight the split in authority as noted above.
Therefore, based on the foregoing, the plaintiff has failed to present any question of fact [*5]why they failed to attend the EUO. Consequently, defendant’s motion seeking summary judgement dismissing the action is granted. The plaintiff’s motion seeking summary judgement is therefore denied.
Dated: February 13, 2025Hon. Mark Kagan, JCCPrecision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021(U))
Reported in New York Official Reports at Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50021(U))
[*1]| Precision Acupuncture P.C. v State Farm Mut. Auto. Ins. Co. |
| 2025 NY Slip Op 50021(U) |
| Decided on January 14, 2025 |
| Civil Court Of The City Of New York, Kings County |
| Roper, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on January 14, 2025
Precision Acupuncture P.C. a/a/o BLANCO ESTEVEZ, Plaintiff(s),
against State Farm Mutual Automobile Ins. Co., Defendant(s). |
Index No. 738833-21/KI
Marina Josovich Esq., P.C., Brooklyn, for Plaintiff
Rivkin Radler LLP, Uniondale, for Defendant. Sandra Elena Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
PapersNotice of Motion and Affidavits Annexed 1-2
Cross-motion 3-4
Opposition 5
Reply 6
Upon the foregoing cited papers, pursuant to CPLR §3212(g), the Decision and Order on Defendant’s Motion for Summary Judgment is hereby Granted in its entirety.
Defendant’s burden has been met and not rebutted. Defendant has established: timely mailing of its EUO scheduling letters, timely issuance of the subject denials for each bill and Plaintiff’s failure to appear for the two scheduled EUOs. Plaintiff’s rebuttal argument that there is a triable issue of fact as to the timeliness of the denial for Bill 2 subsequently received by Defendant after the first EUO no-show but before the second EUO no-show and denied within 30 days of the second EUO no show is rejected. Although the No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon a subsequent bill, it has been held that where an initial EUO scheduled before a defendant received a subsequent bill, a defendant’s time to pay or deny this subsequent bill remained tolled at the time that the subsequent bill was received by the defendant (NGM Acupuncture, P.C. v Nationwide Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51271[U] [App Term 2022]), citing ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term 2011]). “We find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same [*2]assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs” (ARCO Med v Lancer). In this instant matter, Plaintiff yet again failed to appear to the second timely scheduled follow-up EUO during the period of time that subsequent Bill 2 remained tolled. Thus, Defendant’s denial of this subsequent Bill 2 issued within 30 days of the second EUO no-show was timely.
Plaintiff’s motion for summary judgment is denied. Defendant’s cross-motion for summary judgment granted. This case is dismissed with prejudice.
This constitutes the Decision and Order of the Court.
Date: January 14, 2025Brooklyn, New York
Hon. Sandra Elena Roper, JCC