Index No. CV-721025-20-KI

Plaintiff: Oleg Rybak
The Rybak Firm PLLC
1810 Voorhies Ave, Suite 7
Brooklyn, NY 11235-3313
(718) 975-2035
orybak@rybakfirm.com

Defendant: Steven Levy
Callinan and Smith LLP
3361 Park Avenue-Suite 104
Wantagh, NY 11793
(516)-784-5148
slevy@callinansmith.com

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this Motion for Summary Judgment submitted on February 1, 2023,

Upon the foregoing cited papers, and oral argument, the Decision/Order on the Defendant’s Motions for Summary Judgement and Plaintiff’s Cross-Motions for Summary Judgement is as follows:

Defendant, Ameriprise Insurance Company, (hereinafter “Defendant”) moves by Notices of Motion dated November 2, 2020, for Orders pursuant to CPLR § 3212 (b) granting Defendant summary judgment as a matter of law and dismissing Plaintiff’s Summons and Complaint, in its entirety, with prejudice, based upon Plaintiff’s failure to attend duly scheduled Examinations Under Oath (“EUOs”). These matters are consolidated for the purposes of oral argument and this motion. Plaintiff, Michele B. Glispy, (hereinafter “Plaintiff” or “Assignee”), cross moves by Notices of Cross-Motion dated, July 9, 2021, July 12, 2021, and July 6, 2021, respectively, pursuant to CPLR § 3211 (c), CPLR § 3212 (a) seeking summary judgment in favor of plaintiff, denying defendant’s Motion for Summary Judgement, or limiting the issues of fact for trial pursuant to CPLR § 3212 (g), and seeking dismissal of defendant’s affirmative defenses pursuant to CPLR § 3211 (b).

This matter involves a claim for assigned first-party no fault benefits, which resulted from plaintiff providing medical treatment to Assignor, Maria Rodriguez (hereinafter “Assignor”), following a motor vehicle accident, which occurred on October 25, 2018. Defendant acknowledges receipt of specified bills in its denials, however, at oral argument both defendant and plaintiff agreed that bills one, two, and three were not received. After the receipt of the bills specified, defendant sent two Examinations Under Oath (hereinafter “EUO”) scheduling letters for each matter, CV-721025-20-KI letters are dated January 23, 2019, and February 19, 2019, CV-721026-20-KI and CV- 721033-20-KI letters are both dated January 4, 2019 and January, 23, 2019, respectively, to the assignor’s home address listed on the NF-3’s and Verification of Treatment forms and to the provider’s billing address. Defendant annexed affidavits in all three instant matters of Michael A. Callinan, Esq. (hereinafter the “Callinan Affidavits”) all dated October 19, 2020, in order to establish the mailing of the scheduling letters and the non-appearance of the assignor for the scheduled EUO’s. Defendant states that the [*2]assignor did not attend the two scheduled EUO’s for each of the three matters sub judice, and therefore, the defendant asserts that they are entitled to summary judgement dismissing the complaints.

At oral argument, defendant confirmed that it properly mailed EUO scheduling letters to the assignor for all three scheduled EUO’s. Defendant contends that the EUO scheduling letters sent to the assignor, the Callinan affidavits establishing both mailing of the letters and the non-appearance of assignor, in conjunction with a statement on the record, are sufficient under the current no-fault laws, to warrant dismissal of plaintiff’s case for the assignor’s failure to appear. The Court notes that the Callinan affidavits were identical in sum and substance as to the instant matters, but for the dates of the scheduling letters. As set forth below, defendant put forth numerous cases in which the Second Department has held that affidavits similar to Mr. Callinan’s were sufficient to establish the proper mailing of EUO scheduling letters and EUO non-appearance.

Plaintiff argues that the Callinan affidavits were conclusory and insufficient to establish proper mailing as required under CPLR. Plaintiff asserted that defendant did not annex copies of the envelopes in which the scheduling letters were sent as was required according to plaintiff. In the Cross-Motions for Summary Judgement and at oral argument, plaintiff drew the Court’s attention to the matter of Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139A, 866 NYS2d 90 [1st Dist. Nassau Co. 2008]. Plaintiff argues that the Court’s rationale in Carle Place should be applied to the matters sub judice for failure to establish proper mailing procedure. The case is not an appellate case and has no precedential authority herein.

Plaintiff seeks to create new law by using this Court to impose more rigorous requirements on defendants to prove EUO non-appearance and the mailing of scheduling EUO letters. There is no legal requirement of such additional proof along with personal knowledge of mailing procedures to prove mailing of scheduling notices. Additionally, there is no requirement of that which plaintiff urged at oral arguments, to wit: annexing proof of first class mailing and/or envelopes in which the scheduling letters were sent, in addition to affidavits by an attorney with personal knowledge of the mailing of the specific scheduling letters at issue.

All three of plaintiff’s Cross-Motions acknowledge receipt of the scheduling letters by stating that plaintiff responded to the EUO scheduling letters in March of 2019. Though not annexed in plaintiff’s cross-motions, defendant’s motion papers contain, three letters from plaintiff’s counsel, all dated March 5, 2019, after the two scheduled EUO dates had already passed in each instant matter.

In this matter the Callinan affidavits describe in detail that he created the mailing procedure at the legal office handling these matters for defendant, as he was partner and oversaw the mailing of EUO scheduling letters, explicitly outlining his personal knowledge of mailing procedure. The Callinan affidavits state Mr. Callinan was personally responsible for handling these instant matters and these files “on a day-to-day basis.” His “personal knowledge” was not limited to file review and office mailing procedure. It was based upon his personal involvement on these matters in conjunction with review of the file, his creation and over-sight of office mailing procedure, and his knowledge of office mailing procedure.

Defendant argues that the Callinan affidavits established both mailing and the EUO non-appearances. There was no contradictory evidence provided by plaintiff in their motion papers aside from a blanket assertion that defendant did not have enough personal knowledge to establish proper mailing and EUO non-appearance and letters allegedly sent to defendant in [*3]March 2019 attempting to reschedule the EUO’s that were not actually annexed. Plaintiff did not provide any affidavit from its assignor to contradict the assertions made by the Callinan affidavits. Defendant cited to multiple cases in which the Second Department upheld both the sufficiency of similar affidavits to establish EUO no-shows and mailing of scheduling letters, to those of the Callinan affidavits in the matters sub judice as set forth below. Though plaintiff’s Cross-Motion asserts that there was no statement on the record to prove EUO non-appearance, in each of the three instant matters, defendant attached Mr. Callinan’s statements (Defendant’s Motions for Summary Judgement Exhibit “F”) on the record reflecting the non-appearances of plaintiff’s assignor for the scheduled EUO’s in contradiction to plaintiff’s assertions.

In Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017), the Second Department held that, “contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs” (see, Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]). Adelaida Physical Therapy, P.C. v Ameriprise Auto & Home, 58 Misc 3d 130(A), 92 NYS3d 702 (2nd Dept., 2017). Adelaida represents one of many examples proffered by defendant in which the Second Department has held that attorney affirmations alone can establish both mailing of EUO scheduling letters and non-appearance for an EUO. The Court in Adelaida did not require defendant to provide envelopes in which the scheduling letters were sent out in, nor did it as plaintiff requested in its Cross-Motion, ask defendant to provide a log of other people scheduled for EUO’s the same day as the assignor in question. Id. The affirmation of the attorney was relied upon in Adelaida to prove both sufficient mailing and failure of the assignor to appear for an EUO and therefore, affirmed the dismissal of plaintiff’s case. Id.

The Second Department applied similar logic in Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020) and wrote “defendant established that initial and follow-up letters scheduling an examination under oath had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 NYS2d 211 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 NYS2d 217 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123, 857 NYS2d 211). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., 1, 69 Misc 3d 143(A), 133 NYS3d 384, (2nd Dept. 2020). Similarly, to Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins., this Court finds that in the three matters sub judice that defendant has established timely mailing of EUO scheduling letters and the non-appearance of the assignor at scheduled EUO’s by the Callinan affidavits and Mr. Callinan’s three statements on the record. Additionally, plaintiff has failed to raise an issue of fact for trial.

Summary Judgment is a drastic remedy and should be granted only in the absence of any triable issue of material fact. See, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 141 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974]. In order to prevail, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. The appearance of the eligible injured person, or its assignor, at an EUO is a condition precedent [*4]to coverage. See W&Z Acupuncture, P.C. v. Amex Assur. Co., 24 Misc 3d 142(A) (NY App. Term July 31, 2009). The Second Department holds that, “[a]n insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims.” Nationwide Affinity Ins. Co. of Am. v. George, 183 AD3d 755, 756 (2nd Dept. 2020).

The Court finds that though other arguments were raised by both plaintiff and defendant in their Motion papers, the sole issues at oral argument were the mailing of the scheduling letters and the veracity of the Callinan affidavits to prove non-appearance of the assignor at the scheduled the EUO’s. The Court found no need to explore those additional written arguments as they are rendered moot by the issues determined in this decision.

Thus, the defendant’s Motion for Summary Judgement must be granted as plaintiff has failed to rebut the presumption of the mailing of the EUO scheduling letters and non-appearance at the EUO’s. Plaintiff has failed to raise an issue of fact for trial. Therefore, Plaintiff’s motion must be denied by the Court as it is moot.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that defendant’s motions for summary judgement dismissing the complaint is granted pursuant to CPLR § 3212 and the matter is dismissed. Plaintiff’s cross-motions for Summary Judgement are denied in all respects.

_______________s/_____________________
HON. JILL R. EPSTEIN, JCC

Index No. CV-712234-21/BX

Law Offices of Gabriel & Moroff, P.C., by Joseph Padrucco, Esq., for Plaintiff

McDonnell Adels & Klestzick, PLLC, by Christopher Stevens, Esq., for Defendant

Recitation as Required by CPLR §2219(a), the following papers were read on this motion:

Plaintiff Integrated Pain Management, PLLC, seeks $366.64 in no-fault insurance benefits for medical services it rendered to assignor Mikwam Murphy on August 16, 2018. The services consisted of treatment for injuries Murphy allegedly sustained in an automobile accident on July 22, 2018. Defendant Empire Fire & Marine Insurance Company moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint, contending that plaintiff is barred by the doctrines of res judicata, collateral estoppel, and law of the case from relitigating the issue of coverage for this claim (Stevens Affirm. ¶ 18). Plaintiff does not oppose the motion.

In 2019, Empire Fire commenced a declaratory judgment action in Kings County Supreme Court against Integrated Pain Management and Murphy, among others (see Empire Fire & Marine Ins. Co. v. Adams, Index No. 512686/19 [Sup. Ct., Kings Co.] [the “Brooklyn Action”]). In that case, Empire Fire alleged that Integrated Pain Management and Murphy participated in an insurance fraud scheme in which rented vehicles would intentionally get into “accidents” with unsuspecting third-party drivers (id. at NYSCEF No. 1). The drivers and passengers in the rented vehicles would receive payments of up to $1,500, and in exchange for those payments would seek medical treatment from certain designated medical providers, who would seek reimbursement under Empire Fire’s no-fault insurance policy (id.).

Empire Fire sought a declaration that it was not obligated to pay for the medical treatments provided by Integrated Pain Management to Murphy arising out of a July 22, 2018 automobile accident, the same accident at issue in the instant case. Neither Integrated Pain Management nor Murphy appeared in the Brooklyn Action.

By decision and order dated April 8, 2021, Supreme Court granted default judgment for [*2]Empire Fire, ruling in relevant part that Empire Fire was not contractually obligated to reimburse Integrated Pain Management for the services it rendered to Murphy arising from the July 22, 2018 accident, because the alleged losses were not the result of an “accident” as contemplated by the insurance policy (id. at NYSCEF 129).

In support of summary judgment in this action, defendant argues that plaintiff’s claim is barred as a matter of law under the doctrines of res judicata, collateral estoppel, and law of the case, given Supreme Court’s ruling that contractually there is no no-fault coverage for the July 22, 2018 “accident.” It emphasizes that plaintiff Integrated Pain Management and Murphy were both parties to the Brooklyn Action and the claim here arises out of the very same accident at issue in that case.

A party seeking summary judgment “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” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). The evidence must be viewed in the light most favorable to the party opposing summary judgment (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]).

“Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). “As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (id. [internal quotation marks and citation omitted]). “Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party , whether or not the tribunals or causes of action are the same” (id. at 349 [internal quotation marks and citation omitted]). “The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (id.; see also Rojas v Romanoff, 186 AD3d 103, 107-09 [1st Dept 2020][comparing claim preclusion and issue preclusion]).

The Court finds that defendant has met its prima facie burden on summary judgment under the doctrine of collateral estoppel. Plaintiff seeks in this action to relitigate the identical issue raised and decided against it in the Brooklyn Action; that is, plaintiff’s right to payment under defendant’s no-fault insurance policy for medical services it rendered to Murphy related to the July 22, 2018 “accident.” Both parties had a full and fair opportunity to litigate this question in the Brooklyn Action, and Supreme Court clearly decided it against plaintiff. Plaintiff has failed to raise an issue of fact sufficient to defeat summary judgment.

Accordingly, it is hereby

ORDERED that Defendant’s motion for summary judgment seeking dismissal of the complaint is GRANTED and the case is dismissed with prejudice.

This constitutes the decision and order of the Court.

Index No. CV-713066-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Rossillo & Licata, PC for Defendant

Robert J. Helbock Jr., J.

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

Upon the foregoing cited papers, the decision on Defendant’s motion is as follows:

Plaintiff, SERGEY KALITENKO MD (hereinafter, “Plaintiff”), as assignee of NORMAN BARAHONA (hereinafter, “Assignor”), commenced this action against the defendant, INTEGON NATIONAL INS. CO. (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion for summary judgment pursuant to CPLR 3212 for an order dismissing the instant matter due to the Assignor’s failure to appear for duly noticed independent medical examinations and examinations under oath. Defendant submitted opposition to the motion; and the motion was argued before the undersigned on March 2, 2023.

DISCUSSION

The procedural history of this matter warrants an explanation before the Defendant’s instant motion may be discussed. The summons and complaint in this matter were filed by the Plaintiff on July 15, 2022. An affidavit of service was filed in this matter on August 26, 2022, demonstrating that service was made outside the City of New York, in Saddle Brook, New Jersey, on July 27, 2022. According to section 402(b) of the Civil Court Act, “If the summons is served by any means other than personal delivery to the defendant within the city of New York, it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.” In this matter, service was made outside the City of New York. Therefore, the Defendant had thirty days to file its answer from when the affidavit of service was filed with the Court (August 26, 2022). The Defendant filed its answer on October 4, 2022, more than the 30-day statutory period. Plaintiff filed a rejection of Defendant’s answer two days later on October 6, 2022. The Defendant filed the instant motion on December 1, 2022. Notably, Defendant did not move to compel the Plaintiff to accept its late answer.

Since Defendant’s answer was rejected, issue has not been joined, and Defendant’s motion for summary judgment was improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Under CPLR 3012(d), a court may “extend the time to appear or plead, or compel the acceptance of an untimely pleading, ‘upon such terms as may be just and upon a showing of reasonable excuse for delay or default'” (Bank of New York Mellon v Adago, 155 AD3d 594, 595 [2d Dept 2017]). This Court cannot sua sponte compel the Plaintiff to accept the Defendant’s untimely answer as no reasonable excuse for the default has been proffered by the Defendant. Therefore, before the Defendant’s motion for summary judgment can be decided, issue must be joined, by the acceptance of the Defendant’s untimely answer.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED without prejudice.

The foregoing constitutes the Decision and Order of the Court.

Index No. CV-710117-21/NY

Roman Kravchenko, Melville, for defendant.

Jaffe & Velazquez, LLP, New York City, (David J. Slaney, of counsel), for plaintiff.

In this action, plaintiff Country-Wide Insurance Company seeks de novo adjudication of a dispute involving first-party no-fault benefits, following a master arbitrator’s award in excess of $5,000 in favor of defendant Hackensack Surgery Center, LLC a/a/o Jessica Bae. Defendant now moves for an order compelling plaintiff to comply with defendant’s discovery requests for, among other things, production of the entire claim file and SIU file (Motion Seq. No. 001). Plaintiff opposes the motion.

BACKGROUND

Prior to commencement of this action, defendant Hackensack Surgery Center LLC demanded a no-fault arbitration for services provided to defendant’s assignor, Jessica Bae, for facility fees related to a shoulder surgery performed on February 8, 2019, which plaintiff Country-Wide Insurance Company had denied based upon a peer review report (see NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint ¶ 7 and Exhibit A to complaint [No Fault Arbitration Award], at 1).

The no-fault arbitrator ruled in defendant’s favor and awarded no-fault benefits in the amount of $21,330.00 (id.). The no-fault arbitrator found that plaintiff had not overcome the presumption of medical necessity, and reasoned that another no-fault arbitrator had rejected the same peer review report (id., at 2).

By a decision dated October 27, 2021, a master arbitrator affirmed the award of the no-fault arbitrator (NYSCEF Doc. No. 2, Master Arbitration Award).

Pursuant to Insurance Law § 5106 (c), plaintiff commenced this action seeking de novo adjudication of the dispute. Issue was joined on or about March 21, 2022 (see NYSCEF Doc. No. 2, answer).

On or about May 5, 2022, defendant served discovery demands upon plaintiff (see NYSCEF Doc. No. 3). On July 6, 2022, plaintiff brought the instant motion to compel defendant to comply with its discovery demands (see NYSCEF Doc. No. 4).

On or about October 5, 2022, plaintiff opposed the motion and served its discovery response (see NYSCEF Doc. No. 8, affidavit of service). In reply, defendant argued that the responses were deficient (see NYSCEF Doc. No. 11, reply affirmation of plaintiff’s counsel ¶ 12).

On November 28, 2022, plaintiff served supplemental discovery responses (NYSCEF Doc Nos. 14-19).

Without any prior court approval, on January 18, 2023, plaintiff served a supplemental affirmation in opposition, with additional exhibits (NYSCEF Doc. Nos. 20-22). Similarly also without prior court approval, on January 18, 2023, defendant served supplemental reply papers (NYSCEF Doc. Nos. 23-24).

On January 20, 2023, defendant’s motion to compel was marked fully submitted and assigned to this court.

On February 8, 2023, this court held oral argument. At oral argument, defendant’s counsel clarified that defendant’s motion to compel was narrowed to items No.2 and #14 of defendant’s demand for discovery and inspection dated May 5, 2022.

DISCUSSION

CPLR 3101 (a) directs that there shall be “full disclosure of all evidence material and necessary in the prosecution or defense of an action” (id.). “The test is one of usefulness and reason” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 407 [1968]). CPLR 3101 “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise” (Spectrum Sys. Intern. Corp. v Chem. Bank, 78 NY2d 371, 376 [1991]).

“Liberal discovery is favored and pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175-176 [1st Dept 1996]). “[T]he acid test [*2]for disclosure of information is not whether the party can make out a prima facie case without the evidence, but whether he or she can make out a more persuasive case with it.” (6 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3101.08). However, “[u]nder our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party” (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998][quotation marks and citation omitted]).

“A motion court is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused” (Youwanes v Steinbrech, 193 AD3d 492 [1st Dept 2021] [internal quotation marks and citation omitted]).

As a threshold matter, this court accepts the parties’ supplemental submissions (NYSCEF Doc. Nos. 14-25), given the absence of prejudice to either side.

Item 14 of defendant’s demand for discovery and inspection dated May 5, 2022 requests “A full copy of ‘s [sic] claim file(s) and SIU file(s) and reports relating to this matter” (see NYSCEF Doc. No. 3).

In response, Jessica Mena-Sibrian, a No-Fault Litigation/Arbitration Supervisor employed by plaintiff, averred, “there is no SIU file for this matter” (NYSCEF Co. No. 18, aff of Jessica Mena-Sibrian ¶ 4). Mena-Sibrian explained,

“In the ordinary course of business, a SIU file would be created on a claim if an examiner makes a request for it or for a signed statement. The claims file for this matter does not contain any such request and, therefore, no SIU file was created. There is no existing SIU file or reports regarding any type of insurance investigation to provide to Defendant”

(id. ¶ 5). Because defendant’s representative stated under oath that no SIU file exists, so much of plaintiff’s motion which seeks to compel production of the SIU file is denied.

As to the full copy of plaintiff’s claim file, plaintiff stated in its supplemental responses to defendant’s demands for discovery and inspection,

“ANSWER: As to 1-17, the Plaintiff objects to this interrogatory to the extent that it seeks information that is irrelevant, overly broad, privileged and unrelated to the issue in this case. Copies of any document relevant to this claim is hereto annexed, if any”

First, as defendant points out, plaintiff’s initial response to defendant’s discovery demands were untimely served on or about October 5, 2022, well after 20 days of service of those demands on May 5, 2022 (see CPLR 3122). “Accordingly, plaintiff waived objection[s] based on any ground other than privilege or palpable impropriety” (Khatskevich v Victor, 184 AD3d 504, 505 [1st Dept 2020]; see also Accent Collections, Inc. v Cappelli Enter., 84 AD3d 1283, 1284 [2d Dept 2011]; Duhe v Midence, 1 AD3d 279, 280 [1st Dept 2003]).

Here, in opposition to defendant’s motion, plaintiff does not assert any specific privilege against production of the claim file. As defendant points out,

“The payment or rejection of claims is a part of the regular business of an insurance [*3]company. Consequently, reports which aid it in the process of deciding whether to pay or reject a claim are made in the regular course of its business. Reports prepared by insurance investigators, adjusters, or attorneys before the decision is made to pay or reject a claim are not privileged and are discoverable, even when those reports are mixed/multi-purpose reports, motivated in part by the potential for litigation with the insured”

(Advanced Chimney, Inc. v Graziano, 153 AD3d 478, 480 [2d Dept 2017] [internal citations, quotation marks, and emendation omitted]; see also Venture v Preferred Mut. Ins. Co., 153 AD3d 1155, 1159 [1st Dept 2017]). Therefore, plaintiff demonstrated entitlement to production of the entire claim file, which must be provided to defendant within 60 days.

Contrary to plaintiff’s contention, plaintiff’s supplemental response to item 14 did not render defendant’s motion academic.

Plaintiff’s response to item 14 was insufficient. “Whenever a person is required pursuant to such notice or order to produce documents for inspection, that person shall produce them as they are kept in the regular course of business or shall organize and label them to correspond to the categories in the request” (CPLR 3122). Here, plaintiff did not label which items attached to its discovery response were part of the claim file. Thus, it is not possible for the court to determine that plaintiff had, in fact, turn over the entire claim file.

Turning to item 2, defendant demanded,

“If any other action or arbitration has been filed by or on behalf of Defendant or EIP with respect to the accident underlying the within dispute, a copy of the pleadings in such court action(s) or, if arbitration was commenced, a copy of the arbitration request form(s) (AR-1) and of any letter scheduling conciliation filings and deadlines. Also provide copy of any Decision, Order, Stipulation, Arbitration Award, Consent Agreement, and/or any other determination, however named and whether final or non-final, issued in the court action or arbitration proceedings”

At oral argument, defendant’s counsel explained that the information was sought for the purpose of discovering a determination on the issue of medical necessity from any actions or arbitrations that could be used as collateral estoppel against plaintiff in this action.

In the court’s view, the demand is overly broad on its face (see Country-Wide Ins. Co. v Long Is. Spine Specialists PC, 2021 NY Slip Op 30115[U], *3 [Sup Ct, NY County 2021]). The scope of the demand covers documents about any actions or arbitrations “with respect to the underlying accident,” which could therefore include the universe of services provided to the assignor that might not implicate the issue of the medical necessity of the shoulder surgery—such as services provided to the assignor which either predated the shoulder surgery, or services that were not ancillary to the shoulder surgery, such as physical therapy or pharmaceuticals provided for pain management. While the demand could be narrowed, “it is not the court’s obligation to prune those pre-litigation devices” (Kimmel v Paul, Weiss, Rifkind, Wharton & Garrison, 214 AD2d 453, 453-454 [1st Dept 1995]).

Additionally, the expense and burden upon plaintiff to produce these documents is [*4]disproportionate to likelihood that the information sought could lead to a determination that could be used as collateral estoppel in this action. Defendant is already aware of another adverse determination of medical necessity from another arbitration, which was referenced in the award of the no-fault arbitrator.

Having weighed the need for discovery against the burden to plaintiff (Kavanagh, 92 NY2d at 954), an order compelling plaintiff to comply with item 2 of defendant’s demand for discovery and inspection dated May 5, 2022 is denied.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that defendant’s motion to compel (Motion Seq. No. 001) is GRANTED TO THE EXTENT that plaintiff is directed to produce the entire claim file to defendant within 60 days, and plaintiff’s motion is otherwise denied.

This constitutes the decision and order of the court.

________________________________
RICHARD TSAI, J.
Judge of the Civil Court

Index No. CV-709111-18/KI

Attorney for Plaintiff:
Sara Diamond, Esq. (Of Counsel)
Law Offices of Melissa Betancourt, PC
2761 Bath Avenue, Suite B1 & B2
Brooklyn, New York 11214

Attorney for Defendants:
Helen Mann Ruzhy, Esq.
Law Offices of Tina Newsome-Lee
485 Lexington Avenue, 7th Fl.,
New York, New York 10007

After a bench trial, this Court dismisses the complaint on the following grounds:

This action was brought by a provider seeking to recover assigned first-party no-fault benefits.

Here, the triable issue is the medical necessity of the treatment received by Joshua Lessy. The parties stipulated to: Plaintiff’s timely submission of the claim, and Defendant’s timely denial thus establishing their prima facie case; the expert qualifications of licensed Chiropractor Dr. Todd Aordkian, his peer review report, and the documents he reviewed.

At trial, the Defendant bears the burden of production and the burden of persuasion for its claim of lack of medical necessity of the treatment or testing for which payment is sought (A.M. Med. Services, P.C. v Deerbrook Ins. Co., 18 Misc 3d 1139(A) (Civ Ct 2008)). At a minimum, Defendant must establish a factual basis and medical rationale for the lack of medical necessity of Plaintiff’s services (see CityWide Social Work & Psy. Serv., P.L.L.C. v Travelers Indem. Co., 3 Misc 3d 608 (Civ Ct 2004); Inwood Hill Med. P.C. v. Allstate Ins. Co., 3 Misc 3d 1110(A) (Civ Ct 2004). “The insurer may rebut the inference of medical necessity through a peer review and, if the peer review is not rebutted, the insurer is entitled to denial of the claim (e.g., A Khodadadi Radiology, P.C. v. NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A) (App Term 2007)).

According to the detailed credible testimony of Dr. Aordkian, the cervical collar, back support, cervical traction unit, and the TENS unit provided by plaintiff were not medically necessary. None of these devices met the criteria for the treatment of Mr. Lessy. Relying upon the medical treatise written by Panjabi and White, Dr. Aordkian opined the criteria for back support is where there are situations of clinical instability, a fracture or dislocation of a lumbar spine, scoliosis measuring more than 25 degrees, inactive spondylolisthesis with a pars fracture, and postoperative treatment in certain lumbar spine surgeries. Based on his review of the medical records, the Assignor sustained a musculoskeletal injury. Therefore, the treatment provided would be counteractive because it would decrease the range of motion. The cervical collar is used in conversative management of cervical spine fractures where surgery is not necessary. The collar around the fractured vertebra allows the bone to heal and tightens the damaged muscle and joint structures. Here, the Assignor sustained a soft tissue brain-type injury, therefore, it was counterintuitive to place a collar around these structures because movement is restricted. Traction is traditionally used for situations where there is a damaged disk, and the disk herniation is pressing on a nerve arm pain. Here, the medical records failed to document any radicular signs or symptoms along the upper extremities involving a specific nerve root compression demonstrated on the cervical spine MRI Study. Further, Dr. Aordkian credibly testified that there was no successful cervical traction demonstrated in the treatment. The criteria for use of a TENS unit occurs where therapy has been found to be beneficial, and then the Assignor can be prescribed a TENS unit on discharge once the active treatment ends. Dr. Aordkian testified the TENs unit was ordered for home use while the Assignor was under active treatment, therefore, the TENS unit was prescribed prematurely. The chiropractor who prescribed this TENS unit did not demonstrate a successful trial of the TENS unit therapy in the office.

Defendant’s medical expert was very specific and detailed in explaining the basis for his medical opinion. The Court finds Dr. Aordkian’s testimony to be medically sound and credible. Dr. Aordkian sufficiently demonstrated he relied on his review of the Assignor’s medical records to reach his opinion that the services were not medically necessary for the Assignor’s condition. Dr. Aordkian’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the services (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins., 52 Misc 3d 139(A) (App Term 2016)). Considering Dr. Aordkian testimony and the relevant medical records submitted to the Court, this Court finds that Defendant met its burden and provided sufficient proof that the procedures were not medically necessary.

Where the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity (see Prince, Richardson on Evidence §§ 3-104, 3-202 (Farrell 11th ed)); W. Tremont Med. Diagnostic, P.C. v. Geico Ins. Co., 13 Misc 3d 131(A) (App Term 2006)). Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity (see New Horizon Surgical Ctr., L.L.C, 52 Misc 3d 139(A) Moreover, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary (MK Healthcare Med. PC v. Travelers Ins. Co., 76 Misc 3d 1205(A) (Civ Ct 2022)). Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing.

Defendant met its burden of establishing that the services rendered to Joshua [*2]Plessy by Plaintiff were not medically necessary. No rebuttal was offered by the plaintiff. This case is dismissed.

This constitutes the decision and order of the Court.

Index No. CV-721236-19/QU

Plaintiff’s Counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Defendant’s Counsel:
Hollander Legal Group
105 Maxess Road Suite S128
Melville, NY 11747

I. Papers

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

Papers        & nbsp;           & nbsp;           & nbsp;           & nbsp;        Numbered
Defendant’s Notice of Motion and Affirmation in Support dated September 17, 2020 (“Motion”) and electronically filed with the court on September 21, 2020. 1
Plaintiff’s Notice of Cross-Motion and Affirmation in Support dated December 13, 2021 (“Cross-Motion”) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition to Cross-Motion dated December 13, 2021 (“Opposition to Cross-Motion”) and electronically filed with the court on the same date. 3

In a summons and complaint filed on September 23, 2019, Plaintiff sued Defendant insurance company to recover $385.63 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Jackson on July 10, 2018, plus attorneys’ fees and [*2]statutory interest (see Motion, Aff. of Volpe, Ex. A). Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath (“EUO“). Plaintiff cross-moved for summary judgment on its claims against Defendant. An oral argument and settlement conference by both parties was conducted by this Court.

III. Discussion and Decision

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

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

In opposition to Defendant’s motion in its Cross-Motion, Plaintiff first argued that Defendant’s request for an EUO was untimely. In the Opposition to Cross-Motion, Defendant merely stated in conclusory terms that it timely requested the EUOs. “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5[b]). In our instant matter, Defendant’s counsel first requested an EUO of Plaintiff in a letter dated September 21, 2018 (see Motion, [*3]Volpe Aff., Ex. G). Since Defendant’s denial of claim forms, dated February 13, 2019, indicated that Defendant received Plaintiff’s bills on August 27, 2018, Defendant’s first EUO request was untimely because it was made 25 days after receipt of the bill (Eagle Surgical Supply, Inc. v Allstate Indem. Co., 41 Misc 3d 141[A], 2013 NY Slip Op 52012[U] *2 [App Term 2d Dept 2013], see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [2d Dept 1999]). While Defendant presented a delay letter dated September 6, 2018, it did not suffice to toll the 30 days because it did not request verification from Plaintiff, but only indicated that verification would be sought (Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 17; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]).

Plaintiff also argued that Defendant was required to pay or deny the claims after Plaintiff failed to attend the second EUO. Defendant maintained that payment or denial of the claims was premature until Plaintiff provided the requested verification. “[A]n insurer shall not issue a denial of claim form (NYS form NF-10) prior to its receipt of verification of all the relevant information requested pursuant to 65-3.5 and 65-3.6 of this Subpart (e.g. medical reports, wage verification, etc.)” (11 NYCRR 65-3.8[b][3]). However, “[t]his subdivision shall not apply to a prescribed form (NF-Form) as set forth in Appendix 13 of this Title, medical examination request, or examination under oath request” (id.) (emphasis added). Therefore, the outstanding verification of Plaintiff’s EUO did not bar Defendant from denying the claims. The failure to attend two scheduled EUOs has been held a sufficient basis for Defendant to deny a No-Fault claim (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U] *2 [App Term 2d Dept 2019]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U] *1-2 [App Term 2d Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] *1 [App Term 2d Dept 2015]).

In our instant case, Defendant scheduled two additional EUOs after Plaintiff objected to them and denied the claim after Plaintiff’s nonappearance at the fourth scheduled EUO. In cases involving a failure to appear for an EUO, “the 30 days to pay or deny the claim begins to run on the date of the second failure to appear — the date that the insurer is permitted to conclude that there was a failure to comply with this condition precedent to coverage” (Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16, 18 [App Term 2d Dept 2019], see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17, 19 [App Term 2d Dept 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] *1-2 [App Term 2d Dept 2020]). Thus, Defendant’s denial of the claim on February 13, 2019, well beyond 30 days from Defendant’s receipt of the claim on August 27, 2018, was untimely (Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U] *2, 69 Misc 3d 133 [App Term 2d Dept 2020]). The requirement to deny a No-Fault claim after nonappearance at a second EUO would not apply if the additional scheduled EUOs pertained to claims other than the first and second scheduled EUOs (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d at 20). In contrast, all four EUOs Defendant scheduled in this case related to the same claims. While Defendant argued that our instant case was distinguishable from Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226[U], 69 Misc 3d 133 [App Term [*4]2d Dept 2020]) because Plaintiff objected to the EUOs and Defendant explained the reasons for scheduling the additional EUOs beyond the first two, the Appellate Term did not indicate that either of those factual distinctions impacted its holding in that case, Island Life Chiropractic Pain Care, PLLC v 21 st Century Ins. Co. (74 Misc 3d at 19) or Chapa Prods. Corp. v MVAIC (66 Misc 3d at 18), all of which clearly held that the time to pay or deny ran from the non-appearance at the second scheduled EUO. Finally, while a timely EUO request tolls Defendant’s time to pay or deny a No-Fault claim (Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d at 19), as discussed above, Defendant’s EUO requests were not timely. Defendant’s motion for summary judgement dismissing Plaintiff’s complaint is denied.

Regarding the Cross-Motion, Plaintiff pointed to its bills and Defendant’s denial of claim forms which indicated that Defendant received Plaintiff’s bills totaling $385.63 on August 27, 2018 (see Motion, Volpe Aff., Ex. E). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). As discussed above, since Defendant was required under the circumstances to pay or deny the claim within 30 days of Plaintiff’s failure to attend the second scheduled EUO on November 30, 2018 (see Motion, Volpe Aff., Ex. J), Defendant’s denial on February 13, 2019 was untimely. Therefore, Plaintiff has established its prima facie case demonstrating entitlement to summary judgment on its claim.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment is granted; and it is further

ORDERED that the Clerk shall enter a judgment in Plaintiff’s favor against Defendant in the amount of $385.63 together with statutory interest from August 27, 2018 and statutory attorneys’ fees.

This constitutes the Decision and Order of the court.

Index No. CV-720860-19/QU

Petitioner’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Centre, NY 11570

Respondent’s counsel:
Rubin, Fiorella, Friedman & Mercante, LLP
630 Third Avenue, 3rd Floor and 11th Floor
New York, NY 10017

I. Papers

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

II. Background

In a summons and complaint filed September 19, 2019, in Queens Civil Court, Plaintiff sued Defendant insurance company to recover $1,404.74 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Michael for injuries sustained in an automobile accident on November 12, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Gjoni, Ex. A). In a summons and complaint filed January 30, 2020, Defendant commenced a declaratory judgment action in Supreme Court, New York County against Plaintiff and Michael among others who filed No-Fault benefit claims (“Supreme Court Action“) (State [*2]Farm Mutual Ins. Co. v Best Hands On Phys. Therapy, et al., Sup. Ct. NY County, Index No. 720860/19) (see Motion, Gjoni Aff., Ex. B). In an order entered March 22, 2021, in the Supreme Court Action, Supreme Court granted Defendant a default judgment against Plaintiff and Michale among other No-Fault claimants holding that Defendant owed no duty to pay No-Fault claims arising from the accident on November 12, 2018 (see Motion, Gjoni Aff., Ex. D). In our instant matter, Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff’s action was barred by res judicata and collateral estoppel. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]).

The parties and subject matter in the instant matter and the Supreme Court Action are identical (Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *1). Any judgment in Plaintiff’s favor in our instant action would adversely affect the rights and interests created by the judgment in the Supreme Court Action (Metro Health Prods., Inc. v Nationwide Ins., 55 Misc 3d 142[A], 2017 NY Slip Op 50607[U] *2 [App Term 2d Dept 2017]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51786[U] *2). Thus res judicata bars Plaintiff’s action (Active Care Med. Supply Corp. v American Commerce Ins. Co., 54 Misc 3d 128[A], 2016 NY Slip Op 51813[U] *2 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Here, Defendant is entitled to summary judgment dismissing Plaintiff’s complaint (Metro Health Prods., Inc. v Nationwide Ins., 2017 NY Slip Op 50607[U] *1; Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Atlantic Chiropractic, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51072[u] *2 [App Term 2d Dept 2016]) based on the prior Supreme Court Action. Even though Supreme Court entered judgment on Plaintiff’s default in the Supreme Court Action, the judgment constitutes a conclusive final determination because Plaintiff’s default in the Supreme Court Action has not been vacated (Active Care Med. Supply Corp. v American Commerce Ins. Co., 2016 NY Slip Op 51813[U] *2; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 2016 NY Slip Op 51564[U] *1). Inasmuch as res judicata furnishes a basis for granting Defendant summary judgment dismissing Plaintiff’s complaint, there is no need to address whether collateral estoppel also bars Plaintiff’s action as Defendant contended.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted and Plaintiff’s [*3]complaint is dismissed; and it is further

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

This constitutes the Decision and Order of the court.

Index No. CV-109640-02/QU

Plaintiff’s counsel:
The Law Offices of Shay Shailesh Deshpande, LLC
2626 East 14th Street, Suite 205
Brooklyn, NY 11235

Defendant’s counsel:
McDonnell Adels & Klestzick, PLLC
401 Franklin Avenue, Suite 200
Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion to dismiss Plaintiff’s complaint:

Defendant’s Notice of Motion and Affirmation (“Motion”) filed with the court on November 8, 2017. 1
Plaintiff’s Affirmation in Opposition (“Opposition”) to the Motion. 2
Defendant’s Reply Affirmation (“Reply”) to the Opposition. 3
Civil Court, Queens County Decision and Order dated May 31, 2018. 4
Appellate Term for the 2nd, 11th and 13th Judicial Districts’ Decision and Order dated August 14, 2020. 5

II. Background

In a summons and complaint filed November 12, 2002, Plaintiff sued Defendant insurance company to recover unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Rytchagova, plus attorneys’ fees and statutory interest. The action was marked “inactive” as of June 2, 2007. Defendant moved to dismiss Plaintiff’s complaint as abandoned (CPLR 3404) or as barred by laches and to stay interest, which Plaintiff opposed. In an order entered May 29, 2018 (“Prior Order“), the court (H., J.) granted Defendant’s Motion on the ground it was barred by laches and dismissed Plaintiff’s complaint with prejudice, denied the stay of interest as moot, and noted that CPLR 3404 was inapplicable without ruling on that ground. By notice of appeal filed July 27, 2018, Plaintiff appealed the Prior Order. In a decision and order dated August 14, 2020, the Appellate Term for the 2nd, 11th and 13th Judicial Districts reversed the Prior Order and remitted the matter to Civil Court to determine the remaining branches of Defendant’s Motion.

III. Discussion and Decision

The branches of Defendant’s Motion remaining after the remand by the Appellate Term sought dismissal on the ground that the Plaintiff abandoned the action by failing to restore the action since it was marked disposed on June 2, 2007, and alternatively, sought to stay interest from June 2, 2007, the date the matter was marked off, until the date the matter was restored.

CPLR 3404 provides:

A case in the supreme court or a county court marked “off” or struck from the calendar or unanswered on a clerk’s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

It is well established that CPLR 3404 does not apply to actions in New York City Civil Court (Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2d Dept 2007]; Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co., 50 Misc 3d 144[A], 2016 NY Slip Op 50255[U] *1 [App Term 2d Dept 2016]; Halpern v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52321[U] * 2 [App Term 2d Dept 2012]; Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] * 1 [App Term 2d Dept 2012]). Even if CPLR 3404 were to be applied in New York City Civil Court, since CPLR 3404 does not apply to pre-note of issue actions (Guillebeaux v Parrott, 188 AD3d 1017, 1017 [2d Dept 2020]; Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393 [2d Dept 2019]; Kapnisakis v Woo, 114 AD3d 729, 730 [2d Dept 2014]; Arroyo v Board of Educ. Of City of NY, 110 AD3d 17, 19 [2d Dept 2013]), CPLR 3404 furnished no basis to dismiss as no party had filed a notice of trial, which is the Civil Court equivalent of the note of issue (Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]; Richman v Obiakor Obstetrics & [*2]Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U] *1 [App Term 2d Dept 2011]). Therefore, this Court denies Defendant’s motion to dismiss pursuant to CPLR 3404.

In its Reply, Defendant also contended that Plaintiff’s complaint must be dismissed pursuant to 22 NYCRR § 208.14[c], which provides that “[a]ctions stricken from the calendar may be restored to the calendar only upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, made within one year after the action is stricken.” Here, Defendant’s arguments regarding 22 N.Y.C.R.R. § 208.14[c] were improperly raised for the first time in its Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 625, 627 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). Although Plaintiff did not address this contention in its improper sur-reply, in any event, 22 N.Y.C.R.R.§ 208.14[c] “makes no provision for dismissing an action for neglect to prosecute” (Chavez v 407 Seventh Ave. Corp., 39 AD3d at 456; Hillside Place, LLC v Shahid, 55 Misc 3d 101, 103 [App Term 2d Dept 2017]; Marone v Bevelaqua, 36 Misc 3d 140[A], 2012 NY Slip Op 51484[U] *2 [App Term 2d Dept 2012]), which was what Defendant argued here. Despite the inapplicability of CPLR 3404 and 22 N.Y.C.R.R. § 208.14[c], Defendant is not without remedy (see Guillebeaux v Parrott, 188 AD3d at 1018; Onewest Bank, FSB v Kaur, 172 AD3d at 1393; General Assur. Co v Lachmenar, 45 Misc 3d 134[A], 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]).

Defendant alternatively argued that interest accrual should be stayed from the time the case was marked off until the time it is restored. “If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (11 NYCRR § 65-3.9[d]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 204 n. 2 [2d Dept 2009]; Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 52 Misc 3d 143[A], 2016 NY Slip Op 51240[U] *1 [App Term 2d Dept 2016]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term 2d Dept 2014]). Although Plaintiff commenced the action on November 12, 2002, the only activity in the action was Plaintiff’s motion and Defendant’s cross-motion for summary judgment, which were both denied in an order (Butler, J.) entered September 9, 2004, Defendant’s instant Motion to dismiss, which was filed with the court on November 8, 2017 and the subsequent appellate practice culminating in the order of the Appellate Term dated August 14, 2020.

As noted above, Plaintiff has not filed a notice of trial. Although the case was “inactive” as of June 2, 2007, a disposed marking of a pre-note of issue case is not permitted (Bilkho v Roosevelt Sq., LLC, 157 AD3d 849, 850 [2d Dept 2018]; Khaolaead v Leisure Video, 18 AD3d 820, 821 [2d Dept 2005], see Arroyo v Board of Educ. Of City of NY, 110 AD3d at 21). Here, the disposed marking does not prevent Plaintiff from prosecuting the case because undoing such marking does not require a motion to restore (Arroyo v Board of Educ. of City of NY, 110 AD3d at 20; General Assur. Co. v Lachmenar, 2014 NY Slip Op 51722[U] *2 [App Term 2d Dept 2014]). Plaintiff should not be rewarded for the years of inactivity in the court proceeding “by receiving a windfall of interest” (Kew Gardens Med & Rehab, P.C. v Country-Wide Ins. Co., 2016 NY Slip Op 51240[U] *1; V.S. Medical Services, P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] *2 [App Term 2d Dept 2015]; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89). Therefore, this Court grants this branch of Defendant’s motion and in the event that Plaintiff prevails on its claim, fixes the date interest accrues to such date as a notice of trial is filed (see V.S. Medical Services, P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760[U] * 2; Aminov v Country Wide Ins. Co., 43 Misc 3d at 89).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss on the ground that Plaintiff abandoned the action is denied; and it is further

ORDERED that Defendant’s motion to fix accrual of interest is granted; and it is further

ORDERED that in the event Plaintiff prevails on its claims, interest shall accrue from the filing date of the notice of trial.

This constitutes the Decision and Order of this Court.

______________________________
HON. WENDY CHANGYONG LI, J.C.C.

[*1]

Civil Court of the City of New York, Kings County, September 30, 2022

APPEARANCES OF COUNSEL

Law Offices of Buratti, Rothenberg & Burns for defendant.

Law Offices of Zara Javakov Esq., P.C. for plaintiff.

Defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

This action was brought for the recovery of no-fault benefits under New York State law. The underlying facts are not in dispute. Plaintiff is a provider of medical benefits and the assignee of Shaquasia Partlow, the passenger of a motor vehicle involved in an accident that occurred on May 6, 2019, in the State of Florida. On or about May 23, 2019, in response to a letter of representation from plaintiff’s attorney, nonparty Progressive Express Insurance Company sent a letter to plaintiff’s counsel which confirmed that Progressive had issued a policy for the vehicle and driver. The letter had a header which included a section entitled “Name of Insured,” and which listed Shaquasia Partlow. The letter stated, in bold type, “[T]here are no coverage issues at this time.” The letter also notified plaintiff’s counsel that the vehicle “may have additional insurance with Farmers” and provided a policy number.

Defendant Farmers Insurance also issued a policy covering the vehicle and was similarly informed of the accident. On June 21, 2019, Farmers sent Ms. Partlow a letter which informed her that she did not qualify for personal injury protection under Farmers’ policy for this accident.

Farmers’ letter noted that the vehicle was being used as an Uber ride sharing vehicle at [*2]the time of the accident.^[FN1] As the letter further explained, Farmers’ policy was for personal, noncommercial use only. Under the Farmers policy express terms, insured persons did not include any person in the vehicle while the vehicle was engaged in a commercial ride sharing{**77 Misc 3d at 222} activity. The letter further advised that any claims for service should be directed to Ms. Partlow’s Uber claim or her personal health insurance carrier. The June 21, 2019 letter did not claim that payment of no-fault claims was the responsibility of Progressive or any other insurer.

On July 24, 2019, assignor sought medical benefits from plaintiff. Despite both aforementioned letters, on July 30, 2019, plaintiff sought payment for the services from Farmers. Farmers denied those claims by letter dated August 8, 2019, stating that plaintiff’s assignor was “not eligible for benefits under this policy.” Farmers gave no additional reason or explanation for the denial and did not claim that no-fault benefits were the responsibility of Progressive or any other insurer.

This action was commenced on or about August 26, 2019. On July 22, 2020, defendant filed a motion for summary judgment to dismiss the complaint on the basis that plaintiff’s assignor was not covered by defendant’s policy. On December 30, 2020, plaintiff filed a cross motion for summary judgment for the amount stated in the complaint, $846.69, plus statutory interest and attorneys’ fees, pursuant to CPLR 3212.

Defendant, in support of its own motion and in opposition to the cross motion, submitted the affidavit of its claims supervisor, Vincent D’Ugo, a certified copy of defendant’s policy at issue, and the correspondence from Progressive of May 23, 2019. Also attached as exhibits were Farmers’ June 21, 2019 letter to the assignor and the August 8, 2019 letter to plaintiff in which it had stated that its claims were not covered by its policy.

Defendant argued that plaintiff, as assignee of Ms. Partlow, was not entitled to reimbursement under defendant’s policy because the vehicle in the accident was being used as an Uber ride sharing vehicle at that time. As defendant’s coverage was solely for personal use and not commercial use of the vehicle, any persons injured or any property damaged were not covered, as the accident was not an insured incident under the policy.

Plaintiff, in its cross motion, argued that it had established its prima facie case by proving the submission of its claim to Farmers and Farmers’ nonpayment of that claim. In support, plaintiff submitted the affirmation of an employee familiar with the billing procedures used for this claim. Plaintiff also argued that it should also prevail on its cross motion because defendant, in its opposition to the cross motion, failed to submit sufficient evidence showing that defendant had timely denied that claim. Plaintiff did acknowledge receipt of the denial.{**77 Misc 3d at 223}

In opposition to defendant’s motion and in further support of its own cross motion, plaintiff cited 11 NYCRR 65-4.11 (a) (6), and argued that as the first insurer billed, Farmers was responsible to pay the claim submitted to it, and then arbitrate with Progressive the issue of who was responsible for coverage of the claim.

Insurance Law § 5106 (d) (1), which creates the obligation for the first-billed insurer to pay and then arbitrate, provides:

“[W]here there is reasonable belief more than one insurer would be the source of first [*3]party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section five thousand one hundred five of this article and regulations as promulgated by the superintendent, and any insurer paying first-party benefits shall be reimbursed by other insurers for their proportionate share of the costs of the claim and the allocated expenses of processing the claim, in accordance with the provisions entitled ‘other coverage’ contained in regulation and the provisions entitled ‘other sources of first-party benefits’ contained in regulation.”

Insurance Law § 5105 (b) further states that “all disputes arising between insurers concerning their responsibility for the payment of first party benefits” shall be submitted to mandatory arbitration.

11 NYCRR 65-4.11 (a) (6) regulates the mandatory arbitration called for by the Insurance Law. However, it specifically states that “this section shall not apply to any claim for recovery rights to which an insurer in good faith asserts a defense of lack of coverage of an alleged covered person on any grounds.”

Farmers has established its defense of lack of coverage in this case. Plaintiff does not dispute that the vehicle in question was being used for a ride sharing service at the time of the accident. It is also not disputed that only insured persons (as defined in the Farmers policy) were covered and that a person injured while using the vehicle as a part of a commercial ride sharing program was not covered as an insured person. Indeed,{**77 Misc 3d at 224} in its papers, plaintiff does not advance any reason as to why Farmers was incorrect in disclaiming coverage, nor explain why Ms. Partlow should have been covered as an insured person. As such, the provisions of 11 NYCRR 65-4.11 (a) (6) do not apply under the regulation’s own terms, and the issue is not subject to mandatory arbitration (see e.g. RX Warehouse Pharm. Inc. v Erie Ins. Exch., 63 Misc 3d 1236[A], 2019 NY Slip Op 50905[U] [Civ Ct, Kings County 2019]). As coverage was not included for this accident under the terms of the policy, the lack of coverage denial was proper.

Further, the relevant statutes and regulations consistently provide that if there is a “dispute” or “controversy” between the insurers, the claims between said disputing insurers are subject to mandatory arbitration.^[FN2] Similarly, Insurance Law § 5106 (d) (1) states that

“where there is reasonable belief more than one insurer would be the source of first party benefits, the insurers may agree among themselves, if there is a valid basis therefor, that one of them will accept and pay the claim initially. If there is no such agreement, then the first insurer to whom notice of claim is given shall be responsible for payment.”

In this case there were no disputes or controversies between insurance companies, nor was there any reasonable basis for submission to Farmers in July 2019. In May 2019, Progressive wrote that Ms. Partlow was an insured and there were no issues with coverage at this time. In June 2019, prior to plaintiff providing benefits, Farmers informed Ms. Partlow that they would not be providing coverage as the accident was not covered. Hence, the mandatory arbitration regulations for situations where there is a dispute and controversy are not applicable.

Plaintiff’s reliance on M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (81 AD3d 541 [1st Dept 2011]) is unavailing. In that case, the Appellate Division held that GEICO’s denial of coverage defense was invalid and the matter was subject to mandatory arbitration. However, in M.N. Dental Diagnostics the Court held that case involved an intercompany dispute, because the defendant had denied plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (id.). By pointing to another insurer, the Court held that defendant had raised an issue as to which insurer{**77 Misc 3d at 225} was obligated to pay first-party benefits. Thus, M.N. Dental Diagnostics was a “controversy between insurers involving the responsibility or the obligation to pay first-party benefits,” which the regulation states is “not considered a coverage question.” (11 NYCRR 65-4.11 [a] [6].)

In contrast, here, defendant did not deny plaintiff’s claims on the grounds that another insurer, such as Progressive, was responsible. Rather, Farmers solely denied the claim on the basis that the accident was not covered under the terms of the Farmers policy, a claim supported by the evidence Farmers submitted in support of its motion. Under such circumstances, there is no “controversy between insurers” under 11 NYCRR 65-4.11 (a) (6) that would be subject to mandatory arbitration.

In fact, in the underlying Appellate Term’s decision in M.N. Dental Diagnostics, the court offers additional details:

“GEICO’s argument that its denial of benefits raised an issue of coverage because it was not ‘otherwise liable’ for the payment of first-party benefits (see 11 NYCRR 65-3.12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment.” (M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co., 24 Misc 3d 43, 44-45 [App Term, 1st Dept 2009].)

Hence, in M.N. Dental Diagnostics, P.C., not only was there a dispute between insurers, there was also a valid basis for a reasonable belief that more than one insurer could be the source of first-party benefits, as GEICO had possibly provided the assignee with coverage. Thus, in that case there was a real question as to which insurance company was responsible, and as to the priority of payment. Here, in July 2019, by the time the services were provided, there was no question, nor a valid basis for a reasonable belief, that Farmers had coverage, nor was there a question of priority.

Finally, the Court of Appeals has discussed several factors when considering questions of whether a defense is in fact based on lack of coverage and related timeliness or notice issues. Guidance includes whether: (a) the claim would create coverage where none existed; (b) the asserted defense is more like a “normal” exception from coverage, or a lack of coverage{**77 Misc 3d at 226} in the first instance; and (c) the denial of liability based upon lack of coverage within the insurance agreement is distinguishable from disclaimer attempts based on a breach of a policy condition (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]).

Here, there has been no argument presented that this was either a covered accident under the Farmers policy, or that the assignor was in fact covered by Farmers. Hence, requiring Farmers to make a payment would be creating coverage. In addition, prior to the services being sought, assignor’s counsel had notice that Progressive would provide coverage, and assignor had [*5]knowledge that Farmers would not. Accordingly, this court cannot impose coverage where none existed. It is therefore ordered that defendant’s motion for summary judgment is granted, and it is further ordered that plaintiff’s cross motion for summary judgment is denied, and it is further ordered that this matter is dismissed.

Footnotes

Footnote 1:Plaintiff’s opposition to defendant’s motion fails to rebut or even deny this, and correspondence defendant received from Uber in February of 2020 and annexed to its motion papers further confirms that the vehicle was engaged in a ride sharing activity at the time of the accident.

Footnote 2:See Insurance Law § 5105; 11 NYCRR 65-4.11 (a).