Reported in New York Official Reports at Town RX Inc. v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51853(U))
[*1]| Town RX Inc. v Nationwide Mut. Ins. Co. |
| 2025 NY Slip Op 51853(U) |
| Decided on November 24, 2025 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: James, P.J., Brigantti, Alpert, JJ.
571050/25
against
Nationwide Mutual Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lauren L. Esposito, J.), entered on or about February 3, 2025, which denied its motion for summary judgment and granted, in part, plaintiff’s cross-motion for summary judgment.
Per Curiam.
Order (Lauren L. Esposito, J.), entered February 3, 2025, reversed, without costs, plaintiff’s cross-motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s motion for summary judgment dismissing this action for first-party, no-fault benefits should have been granted. Defendant made a prima facie showing that plaintiff failed to appear at properly scheduled examinations under oath (EUOs) (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468 [2020]; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [2018]; Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [2016]). The affidavit of defendant’s attorney sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc. 130 AD3d 465, 465-466 [2015]), and counsel further represented, under penalty of perjury, that he had personal knowledge that the described practices and procedures were followed in this matter (id. at 466). This was adequate proof that the EUO letters were mailed to plaintiff.
In view of the foregoing, we reach no other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 24, 2025
Reported in New York Official Reports at One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51848(U))
[*1]| One RX Chemist, Inc. v Nationwide Mut. Ins. Co. |
| 2025 NY Slip Op 51848(U) |
| Decided on November 21, 2025 |
| Appellate Term, First Department |
| 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 November 21, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: James, P.J., Brigantti, Alpert, JJ.
571051/25
against
Nationwide Mutual Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lauren L. Esposito, J.), entered on or about February 10, 2025, which denied its motion for summary judgment.
Per Curiam.
Order (Lauren L. Esposito, J.), entered February 10, 2025, reversed, without costs, defendant’s motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s unopposed motion for summary judgment dismissing this action for first-party, no-fault benefits should have been granted. Defendant made a prima facie showing that plaintiff failed to appear at properly scheduled examinations under oath (EUOs) (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468 [2020]; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [2018]; Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [2016]). The affidavit of defendant’s attorney sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 757 [2020]; Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc. 130 AD3d 465, 465-466 [2015]), and counsel further represented, under penalty of perjury, that he had personal knowledge that the described practices and procedures were followed in this matter (id. at 466). This was adequate proof that the EUO letters were mailed to plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur concur
Decision Date: November 21, 2025
Reported in New York Official Reports at Quazi R. Med. Servs., PC v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51784(U))
[*1]| Quazi R. Med. Servs., PC v Nationwide Mut. Ins. Co. |
| 2025 NY Slip Op 51784(U) |
| Decided on November 13, 2025 |
| Appellate Term, First Department |
| 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 November 13, 2025
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: James, P.J., Brigantti, Alpert, JJ.
571054/25
against
Nationwide Mutual Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lauren L. Esposito, J.), entered February 10, 2025, which denied its motion for summary judgment.
Per Curiam.
Order (Lauren L. Esposito, J.), entered February 10, 2025, reversed, without costs, defendant’s motion for summary judgment granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s unopposed motion for summary judgment dismissing this action for first-party, no-fault benefits should have been granted. Defendant made a prima facie showing that plaintiff failed to appear at properly scheduled examinations under oath (EUOs) (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468 [2020]; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600, 601 [2018]; Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [2016]). Contrary to the conclusion reached below, defendant’s request for verification one day beyond the prescribed 15-day period set forth in 11 NYCRR § 65—3.5 [b], but before the 30-day claim denial window expired, did not render its requests invalid, but merely reduced the 30-day time period for payment or denial of the claim (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]; Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 83 Misc 3d 41, 43 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 13, 2025
Reported in New York Official Reports at Hereford Ins. Co. v 21 Century Chiropractic Care (2025 NY Slip Op 06022)
| Hereford Ins. Co. v 21 Century Chiropractic Care |
| 2025 NY Slip Op 06022 |
| Decided on October 30, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Moulton, J.P., Gesmer, González, Higgitt, Michael, JJ.
Index No. 150314/22|Appeal No. 5079|Case No. 2024-06498|
v
21 Century Chiropractic Care et al., Defendants, Cross Bay Orthopedic Surgery et al., Defendants-Appellants.
Roman Kravchenko, Huntington (Jason Tenenbaum of counsel), for appellants.
Goldberg, Miller & Rubin PC, New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (Mary V. Rosado, J.), entered October 1, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff’s cross-motion for summary judgment as against defendants Cross Bay Orthopedic Surgery, Maspeth Med Supply, Inc., Multimed Supply, Inc., NYC Best Supply Inc., and Ozone RX Inc., unanimously affirmed, with costs.
The appealing defendants argue that a failure to subscribe an transcript from an examination under oath (EUO) is a violation of a condition precedent to contract performance rather than violation of a condition precedent to coverage. However, these defendants failed to raise this argument before Supreme Court, and the issue is therefore unpreserved for our review (see Pirraglia v CCC Realty NY Corp., 35 AD3d 234, 235 [1st Dept 2006]). In any event, the argument is also unavailing, as we have previously held that a claimant’s failure to subscribe EUO transcripts did, in fact, violate a condition precedent to coverage, voiding the policy ab initio and warranting denial of the claim (see Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 AD3d 468, 468-469 [1st Dept 2020]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).
Likewise, defendants failed to preserve their argument that under the standard articulated in Thrasher v United States Liab. Ins. Co. (19 NY2d 159, 168 [1967]), this Court must determine whether the claimants’ failure to subscribe their EUO transcripts was willful. Even were it preserved, this argument is also unavailing. “The doctrine of willfulness, as addressed in Thrasher . . . applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage” (Unitrin Advantage Ins. Co., 82 AD3d at 561). This case involves no-fault coverage, and we find no reason to depart from Unitrin Advantage.
Also unpreserved is defendants’ argument that plaintiff’s subscription demands were untimely. Furthermore, as with defendants’ other unpreserved arguments, the argument is unavailing. “An insurer must request any ‘additional verification . . . to establish proof of claim’ within 15 business days after receiving the ‘prescribed verification forms’ it forwarded to the parties required to complete them” (Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018], quoting 11 NYCRR 65-3.5 [a], [b]). Plaintiff timely sent the subscription demand as the depositions for both claimants were noticed for September 20, 2021, and plaintiff made its subscription demands on October 1 and October 7, 2021; thus, only 9 and 14 business days, respectively, elapsed.
Defendants may not rely on the claimants’ submission of their subscribed EUO transcripts in June 2024 to argue that the claimants complied with plaintiff’s demand. An insurer may deny a claim if 120 days pass without a claimant providing the required verification or a valid written excuse (see 11 NYCRR 65-3.8 [b][3]). Plaintiff requested the subscriptions in October 2021, and years passed before claimants responded.
We have considered defendants’ remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 30, 2025
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025)
| State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. |
| 2025 NY Slip Op 02025 |
| Decided on April 03, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Manzanet-Daniels, J.P., Moulton, Gesmer, Pitt-Burke, Michael, JJ.
Index No. 815415/21|Appeal No. 4041|Case No. 2024-00540|
v
Lifeline Medical Imaging, P.C., Defendant-Appellant.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellant.
Goldeberg, Miller & Rubin, PC, New York (Harlan R. Schreiber of counsel), for respondents.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 24, 2023, which granted the motion of plaintiffs State Farm Mutual Automobile Insurance Company, State Farm Indemnity Company, State Farm Guaranty Insurance Company, and State Farm Fire and Casualty Company (collectively State Farm) for summary judgment declaring that State Farm had no obligation to pay bills submitted by defendant Lifeline Medical Imaging, P.C., unanimously reversed, on the law, without costs, the motion denied, and the declaration vacated.
In this action, State Farm sought a declaration that it was not obligated to provide no-fault coverage for various claims submitted by Lifeline, a medical provider. According to State Farm, Lifeline failed to meet a condition precedent to coverage by failing to appear for duly scheduled examinations under oath (EUOs) and by refusing to produce an individual who could provide the information needed to verify Lifeline’s claims. As a result, State Farm maintains, Lifeline’s claim to no-fault benefits is foreclosed.
Supreme Court should have denied the motion as premature, as State Farm failed to offer Lifeline an objective justification for requesting the EUOs, as required by the governing no-fault regulations (see Country-Wide Ins. Co. v Alicea, 214 AD3d 530, 531 [1st Dept 2023]; Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). The criteria by which State Farm decided that an EUO was required is essential for Lifeline to oppose State Farm’s summary judgment motion, and those criteria are exclusively within the State Farm’s knowledge and control (see Delacruz, 205 AD3d at 473, citing 11 NYCRR 65-3.5[e]). In addition, despite State Farm’s assertion otherwise, it did not fully respond to Lifeline’s discovery request for a copy of the objective standards relied upon when the EUO was scheduled (see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept. 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; see also Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]; Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]).
Because State Farm’s rationale for requesting the EUOs has yet to be determined, the issue of whether State Farm’s no-coverage defense is subject to preclusion cannot yet be determined.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 3, 2025
Reported in New York Official Reports at Nationwide Gen. Ins. Co. v Gaines (2025 NY Slip Op 01896)
| Nationwide Gen. Ins. Co. v Gaines |
| 2025 NY Slip Op 01896 |
| Decided on April 01, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Manzanet-Daniels, J.P., González, Shulman, Rodriguez, Pitt-Burke, JJ.
Index No. 151738/22|Appeal No. 4009|Case No. 2024-03961|
v
Raheem Gaines et al., Defendants, Emote Medical Services P.C. et al., Defendants-Respondents.
Hollander Legal Group, PC, Melville (Brian Kaufman of counsel), for appellants.
The Rybak Firm, P.L.L.C., Brooklyn (Maksim Leyvi of counsel), for respondents.
Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered April 15, 2024, which denied plaintiffs’ motion for summary judgment declaring that they have no obligation to pay no-fault benefits to defendants Emote Medical Services P.C. and Nourseen PT P.C. (together, the Providers) in connection with the underlying June 2, 2021 motor vehicle collision, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.
Plaintiffs are entitled to summary judgment because they established that the injured claimant failed to attend properly noticed independent medical examinations (IMEs), thus foreclosing coverage (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). Plaintiffs submitted the affidavit of an employee from the company that schedules the IMEs, who averred that he sent two IME notices to the claimant and that the claimant failed to appear on either date. Plaintiffs also submitted the affirmations of the IME doctor, which were consistent with the scheduling employee’s affidavit in that claimant failed to appear for the examinations.
The Providers’ argument that the IMEs were untimely is unpersuasive. Where, as here, an insurer sends “notices scheduling . . . IMEs prior to the receipt of . . . claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply” (Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]). Moreover, the failure to attend a properly noticed examination is a “coverage defense [that] appl[ies] to any claims, and is not determined on a bill by bill basis” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020] [internal quotation marks omitted]).
Nor were plaintiffs required to establish timely disclaimer of coverage in light of claimant’s failure to attend the medical examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424-425; see also Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 1, 2025
Reported in New York Official Reports at Unitrin Safeguard Ins. Co. v Manuel (2025 NY Slip Op 01727)
| Unitrin Safeguard Ins. Co. v Manuel |
| 2025 NY Slip Op 01727 |
| Decided on March 20, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Manzanet-Daniels, J.P., Kern, Kapnick, González, Scarpulla, JJ.
Index No. 160090/22|Appeal No. 3944|Case No. 2024-00362|
v
Jermail Manuel, et al., Defendants, Abdul-Massih Family Health Nurse Practitioner PC, et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Goldberg, Miller & Rubin, New York (Harlan R. Schreiber of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 12, 2024, which granted plaintiff ‘s motion for summary judgment declaring that it had no duty to pay no-fault insurance claims to defendants Abdul-Massih Family Health Nurse Practitioner PC, Andrew Glyptis, MD, Brefni Chiropractic Diagnostics, PC, Emote Medical Services, PC, Kuman Medical Supply Inc., Masood Chiropractic Diagnostic, P.C., and Spine Care Chiropractic, P.C. (collectively, defendant providers) arising out of the underlying accident, unanimously affirmed, without costs.
Defendant claimants claimed that they were passengers in a covered vehicle and sustained injuries during a January 9, 2022 accident, and notified plaintiff that they intended to submit claims for no-fault benefits. However, claimants never answered the complaint or otherwise appeared in this action, and plaintiff obtained a default judgment against them. The remaining defendants are medical providers that submitted tens of thousands of dollars in no-fault claims as assignees of claimants.
The court properly granted plaintiff summary judgment declaring that it had no duty to pay no-fault claims to defendant providers, as plaintiff demonstrated a founded belief that claimants’ injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff proffered an affidavit from a claims investigator detailing the circumstances of the accident that led to the investigation, including the magnitude of the claims submitted, the absence of any claims for damage to the vehicle, and the lack of a police report. Plaintiff submitted affidavits from the occupants of the adverse vehicle, who characterized the accident as a bumper “tap” resulting in no visible damage to the covered vehicle or injury to the driver. The occupants of the adverse vehicle also stated they were able to see into the covered vehicle and there were no passengers within (see State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp., 203 AD3d 556, 558 [1st Dept 2022]). Plaintiff also pointed out “red flags” in claimants’ examinations under oath (EUOs) which undermined the credibility of their accounts (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455 [1st Dept 2021]).
In opposition, defendant providers failed to raise an issue of fact, as they did not submit an affidavit of someone with personal knowledge of the legitimacy and circumstances of the accident or any other admissible evidence to rebut plaintiff’s showing (see Nationwide Gen. Ins. Co. v South, 223 AD3d 411, 411-412 [1st Dept 2024]; Ramos v New York City Hous. Auth., 264 AD2d 568 [1st Dept 1999]). Insofar as claimants asserted in their EUOs that they were passengers in the vehicle at the time of the accident, the court properly construed claimants’ default as an admission that their EUO statements were false and their injuries were not the result of the accident, as alleged by [*2]plaintiff in the complaint (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).
Although defendant providers argue that plaintiff’s summary judgment motion was premature, they failed to demonstrate that any proof necessary for their opposition was exclusively within plaintiff’s possession or that they made further attempts to obtain that information (see Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557, 557 [1st Dept 2007]; see also CPLR 3212[f]). Their attorney’s affirmation was insufficient in that regard (see 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: March 20, 2025
Reported in New York Official Reports at Liberty Mut. Ins. Co. v Mercado (2025 NY Slip Op 00631)
| Liberty Mut. Ins. Co. v Mercado |
| 2025 NY Slip Op 00631 |
| Decided on February 04, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Friedman, J.P., Gesmer, González, Scarpulla, Pitt-Burke, JJ.
Index No. 650161/20 Appeal No. 3617 Case No. 2023-06400
v
Dilia Escano Mercado et al., Defendants, Bronx Medical Health Provider et al., Defendants-Appellants, Chang Health Physical Therapy PC, et al., Defendants.
The Rybak Firm, PLLC, Brooklyn (Michael Kroopnick of counsel), for appellants.
Correia, Conway & Stiefeld, White Plains (Nicole E. Duke of counsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about November 24, 2023, which granted plaintiffs’ motion for summary judgment and adjudged and declared that plaintiffs are not obligated to honor or pay claims for reimbursement to defendants Bronx Medical Health Provider and Burke Physical Therapy PC, as assignees of defendants Dilia Mercado, Jose Mercado, and Miguel Angel Santiago (the individual defendants), with respect to no-fault benefits for an alleged motor vehicle collision that occurred on April 15, 2019, unanimously affirmed, with costs.
The individual defendants were allegedly involved in a vehicle collision with another vehicle. According to plaintiffs, which are the no-fault insurance providers, no injuries were reported at the scene, and no citations were issued. After the collision, the individual defendants sought medical treatment from defendant medical providers for their alleged injuries; the medical providers then sought and were denied reimbursement as assignees of the individual defendants.
Plaintiffs established their entitlement to summary judgment by providing a specific objective justification for conducting examinations under oath (EUOs) of the individual defendants (11 NYCRR 65-3.5[e]; see Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). Although the explanation that plaintiffs provided was not particularly extensive, it was sufficient to establish the justification and to establish that defendants had not requested these EUOs arbitrarily or as a matter of routine. We note that plaintiffs moved for summary judgment after the close of discovery, during which they had disclosed to defendants the basis for their requests (cf. Delacruz, 205 AD3d at 473).
Furthermore, Supreme Court correctly concluded that, with respect to these defendants, plaintiffs established that they sent timely requests for the EUOs. Thus, the individual defendants’ failure to appear for EUOs constitutes a breach of a condition precedent to coverage and voids the policy ab initio (see Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 508 [1st Dept 2021]).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: February 4, 2025
Reported in New York Official Reports at Hereford Ins. Co. v Interdependent Acupuncture PLLC (2025 NY Slip Op 00021)
| Hereford Ins. Co. v Interdependent Acupuncture PLLC |
| 2025 NY Slip Op 00021 |
| Decided on January 02, 2025 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Kern, J.P., Kennedy, Gesmer, Higgitt, Michael, JJ.
Index No. 152296/19 Appeal No. 3388 Case No. 2024-02707
v
Interdependent Acupuncture PLLC, et al., Defendants, Shelly Sarbensarpong, et al., Defendants-Appellants.
Law Office of Yuriy Prakhin, P.C., Brooklyn (Yuriy Prakhin of counsel), for appellants.
Goldberg, Miller & Rubin, P.C., New York (Victoria Tarasova of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered April 11, 2024, which denied the motion of defendants-appellants Shelly Sarben-Sarpong and Corey Hargrove to vacate orders and judgments, entered August 14, 2019 and February 17, 2023, granting plaintiff’s motions for entry of default judgments against them and declaring that they were not entitled to no-fault coverage, unanimously affirmed, without costs.
The court providently exercised its discretion in denying appellants’ motion to vacate the default judgments pursuant to CPLR 5015(a)(1) because appellants failed to demonstrate a reasonable excuse for their defaults (CPLR 5015[a][1]; see Towncenter Partners LLC v A.A. Castro Complex Litig., 203 AD3d 528, 529 [1st Dept 2022]). Appellants offered no explanation as to why they failed to respond to the complaint despite conceding that they received service of process. Their counsel’s suggestion that they were confused by the pendency of their separate personal injury action, in which they were represented by counsel, does not constitute a reasonable excuse (see Buckley v Nicklous, 210 AD3d 575, 575 [1st Dept 2022]). Appellants provide no support for their argument that plaintiff should have notified their counsel, who represented them in a separate personal injury action against plaintiff’s insured, of the commencement of this declaratory judgment action. In any event, appellants did not provide any affidavits to explain why they did not provide the pleadings in this action to their counsel after they were served. Since appellants’ proffered excuse for their defaults was not reasonable, the court did not need to consider whether they showed a potentially meritorious defense to the declaratory judgment action (see Besler v Uzieri, 179 AD3d 628, 628-629 [1st Dept 2020]).
As for appellants’ argument that the default judgments are a nullity because plaintiff failed to make an evidentiary showing as required by CPLR 3215(f), the Court of Appeals has held that a failure to submit the proof required by CPLR 3215(f) is “not a jurisdictional defect” and therefore “does not justify treating the judgment as a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204 [1st Dept 2013]). Appellants’ remedy was to move pursuant to CPLR 5015(a)(1) to vacate the default judgments, which required them to show a reasonable excuse for their defaults (see id.; Frazier v 811 E. 178th St. Realty Corp., 183 AD3d 413, 414 [1st Dept 2020]). In any event, plaintiff did submit admissible evidence supporting its assertion that it properly disclaimed coverage based on a founded belief that the treatment appellants received was not medically necessary or causally related to the subject motor vehicle accident (see State Farm Fire & Cas. Co. v AA Acupuncture Serv., P.C., 217 AD3d 643 [1st Dept 2023]).
We have considered appellants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME [*2]COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 2, 2025
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| Appellate Division, First Department |
| 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 Official Reports. |
Before: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024