[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about September 24, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment and declared that it owes no further duty to defendants to pay any no-fault claims with respect to a specified motor vehicle accident involving defendant Maria Aguilar, unanimously affirmed, without costs.

Country-Wide satisfied its prima facie burden of showing that it exhausted the policy by submitting the policy declaration page, an affidavit by its no-fault claim supervisor responsible for Aguilar’s claim, and the payment ledger showing that it had paid out $50,000 to Elmhurst Hospital Center by May 21, 2018. Country-Wide was under no further obligation to pay defendants once the policy limits were exhausted (see Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). Contrary to defendants’ contention, the affidavit by the no-fault claim supervisor, who had personal knowledge of the claim file and the procedures for processing no-fault claims, was sufficient to lay a foundation for admission of the documents as business records under CPLR 4518 (a) (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]).

In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses (see generally GMAC Mtge., LLC v Coombs, 191 AD3d 37, 50 [2d Dept 2020]; Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516, 517 [1st Dept 1980]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, González, Rodriguez, Higgitt, JJ.

Decided on October 24, 2022

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Correia, Conway & Stiefeld, White Plains (Nicole M. Bynum of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 7, 2021, which granted plaintiff insurers’ motion for summary judgment to the extent of declaring that defendant medical providers are not entitled to any no-fault benefits under claimant-defendant Sandra Valera’s automobile insurance policy, unanimously reversed, on the law, without costs, the motion denied, the declaration vacated, and the matter remanded for further proceedings consistent with this decision.

In June 2019, the claimant was injured in a collision involving a vehicle that she insured under an automobile insurance policy issued by plaintiff insurers. The policy included an endorsement entitling the claimant to receive payment for accident-related medical expenses, and entitling her treating medical providers to collect her assigned no-fault benefits. In January 2020, the insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the examination under oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins (see 463 Saddle Up Tremont LLC v Union Mut. Fire Ins. Co., 205 AD3d 511, 511-512 [1st Dept 2022]; BX Third Ave. Partners, LLC v Fidelity Natl. Tit. Ins. Co., 112 AD3d 430, 430 [1st Dept 2013]; Feldman v Friedman, 241 AD2d 433, 434 [1st Dept 1997]). We therefore deny the insurers’ motion for summary judgment without prejudice and remand the matter for further discovery concerning the insurers’ claim and underwriting practices and guidelines. Concur—Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about June 24, 2021, which denied plaintiff’s motion for a default judgment on its claims seeking a declaration of noncoverage against all defaulting defendants, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

This declaratory judgment action concerns claims for no-fault insurance benefits made in connection with an automobile crash that occurred on February 5, 2019. Contrary to the court’s ruling, plaintiff established, as to the first cause of action, that the individual claimants, who assigned their claims for no-fault insurance benefits to the defaulting medical service provider defendants, failed to appear for properly-noticed examinations under oath. A review of the court’s order indicates that it based its decision on plaintiff’s receipt of a NF-2 form (application for no-fault benefits), rather than the verification forms (e.g., NF-3 or NF-4 forms). The 15-business day timeframe is not measured based on receipt of the NF-2 application, but on the receipt of the verification forms (11 NYCRR 65-3.5 [a], [b]; see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Accordingly, plaintiff’s notices were timely and the failure to appear was a breach of a condition precedent to coverage and voids the policy ab initio (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC, 195 AD3d 454, 455-456 [1st Dept 2021]; Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507 [1st Dept 2021]).

As to the second cause of action, seeking a declaration of noncoverage because the crash was intentional or staged, plaintiff submitted sufficient evidence warranting entry of a default judgment (see CPLR 3215 [f]; Surgicore, 195 AD3d at 455). Plaintiff’s submissions were sufficient to determine that a viable declaratory judgment cause of action of noncoverage exists and, by failing to answer, the defaulting defendants are deemed to have admitted the factual allegations in the complaint (see generally Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Surgicore, 195 AD3d at 455).

Finally, as to the third cause of action, seeking a declaration of noncoverage based on the named insured’s failure to cooperate with the investigation of the claim, plaintiff also submitted sufficient evidence warranting entry of a default (CPLR 3215 [f]; see generally Pryor v New York Prop. Ins. Underwriting Assn., 18 AD3d 361, 362 [1st Dept 2005]). Concur—Manzanet-Daniels, J.P., Oing, González, Scarpulla, Rodriguez, JJ.

[*1]

Thomas Torto, New York, for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 4, 2021, which denied plaintiff’s motion for summary judgment as against defendants Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Jules Francois Parisien MD, unanimously affirmed, without costs.

This appeal concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Jeffrey Delacruz was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Delacruz assigned his right to collect no-fault benefits under that policy to his treating medical providers. Those providers applied for no-fault benefits from Country-Wide but were denied.

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for summary judgment on the ground that Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the medical providers’ claim to benefits.

The court properly denied plaintiff’s motion for summary judgment as premature (see CPLR 3212 [f]). Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant (11 NYCRR 65-3.5 [e]; 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]; cf. Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Further, plaintiff concedes that it provided no response to defendants’ discovery demands for the “specific objective justification” for its request that the injured claimant submit to an EUO.

We have considered and reject all of plaintiff’s arguments that it is not required to provide claimants with the reason it requested the EUO. An insurer must affirmatively establish that it complied with the strict no-fault insurance claim procedures set forth in 11 NYCRR 65-3.5 (see generally PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). In the absence of any justification for the EUO, plaintiff has failed to establish, as a matter of law, that it complied with the governing regulations (11 NYCRR 65-3.5 [e]; AB Med. Supply at 671; Jaga Med. Servs. at 441; see also American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]).

The court properly rejected plaintiff’s contention that defendants waived any claim as to the reasonableness of the EUO notices by failing to object upon receipt. [*2]In its EUO notices, plaintiff provided no justification for these defendants to object to. In any event, the regulation does not require defendants to lodge any objection to the justification within a specific timeframe. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553, 555 [2d Dept 1999]) is inapposite. Concur—Renwick, J.P., Mazzarelli, Gesmer, González, JJ. [Prior Case History: 71 Misc 3d 247.]

Respondent appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), dated October 4, 2021, which granted the petition of Allstate Fire & Casualty Insurance Company to vacate a master arbitrator’s award and denied respondent’s cross-motion to confirm the arbitration award.

Per Curiam.

Order (Sabrina B. Kraus, J.), dated October 4, 2021, affirmed, with $10 costs.

Civil Court properly vacated the master arbitrator’s award and denied respondent’s cross motion to confirm the award. When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co v Sawh, 272 AD2d 245 [2000][internal quotation marks omitted]). An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 823 [1998]; Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 179 AD3d 563 [2020]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]).

At the framed issue hearing on the issue of policy exhaustion, petitioner’s submissions were sufficient to establish that the policy had been exhausted on May 8, 2019 by payments of no-fault benefits to other health care providers and lost wages to the assignor before petitioner was obligated to pay the claim at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U][App Term, 1st Dept 2016]). The evidence includes the testimony of petitioner’s claims adjustor, coupled with the policy declaration page showing a $50,000 policy limit for Personal Injury Protection coverage and a $25,000 limit for Optional Basic Economic Loss coverage, a payment ledger listing in chronological order the dates the claims by various providers were received and paid, and a [*2]ledger showing the dates and amounts of lost earnings reimbursed to the assignor. In response, respondent called no witnesses nor offered any evidence at the hearing.

Contrary to respondent’s contention, petitioner was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept 2015]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claims “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]). Respondent’s contention that the other claims paid by petitioner were not shown to be “verified” is unpreserved as a matter of law for this court’s review, no such argument having been raised at Civil Court (see Matter of Allcity Ins. Co. [Rodriguez], 212 AD2d 405 [1995]). The alleged defect in petitioner’s proof could have been raised at the framed issue hearing. An appellate court should not, and will not, consider different theories or new questions, if proof might have been offered to refute or overcome them had those theories or questions been presented in the court of first instance (see Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 349 [1955]; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307 [1991], lv denied 78 NY2d 856 [1991]).

Having admitted in its papers that the assignor was a pedestrian, respondent may not now claim that additional personal injury protection (APIP) benefits are payable because “there was no evidence … that assignor was a pedestrian.”

We have considered respondent’s remaining arguments and find them unavailing.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Order and judgment (one paper), Supreme Court, New York County (Melissa A. Crane, J.), entered on or about March 2, 2021, declaring that defendants Metro Pain Specialists, P.C. and Right Aid Medical Supply Corp. are not entitled to no-fault benefits, unanimously reversed, on the law, with costs, and the judgment vacated.

Plaintiff insurer failed to make a prima facie showing that it complied with the time frames in scheduling defendant Louis Melendez’s independent medical examination (IME) as set forth in the no-fault implementing regulations (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Martinez, 202 AD3d 526 [1st Dept 2022]). Plaintiff did not provide evidence as to when it received the claims from Metro and Right Aid, and thus failed to establish that it scheduled the IME within the prescribed time frame (see 11 NYCRR 65-3.5 [b], [d]). Concur—Manzanet-Daniels, J.P., Kapnick, Webber, Gesmer, Oing, JJ.

[*1]

Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about September 30, 2020, which, to the extent appealed from as limited by the brief, denied plaintiff insurer’s motion for a declaratory judgment on default, upon the first and second causes of action, against defendants Atlas PT PC, Bliss Acupuncture PC, Confident Medical Services, Harbor Medical Group, PC, M&D Elite Pharmacy LLC, MG Chiropractic PC, Red Oak Medical PC, RL Chiropractic Diagnostic PC, Seasoned Acupuncture PC (collectively, the Defaulting Medical Providers), Charles Guillaume, Jean Gedin, Orelien Huggins, John Doe, and Shenigthder Loiseau, unanimously modified, on the law, to grant the motion as to the Defaulting Medical Providers and defendant Huggins, and it is declared that plaintiff has no duty to pay these defendants’ claims arising out of an alleged October 17, 2018 automobile accident, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 2, 2021, which denied plaintiff’s motion to reargue, unanimously dismissed, without costs, as abandoned and as taken from a nonappealable order.

Plaintiff submitted proof of proper service pursuant to CPLR 308 (3) on the Defaulting Medical Providers and proof of proper service pursuant to CPLR 308 (1) on Huggins. Plaintiff failed to provide proof of proper service on defendants Guillaume, Gedin, and Loiseau. It provided affidavits of service on the latter three defendants pursuant to CPLR 308 (4), but, while the affidavits listed the dates and addresses of attempted service, they failed to specify the times of attempted service, as required by CPLR 306 (c).

In any event, plaintiff demonstrated that Guillaume, Gedin, and Huggins (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs) on two separate occasions (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432, 432 [1st Dept 2019]). Documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required (see 11 NYCRR 65-3.5 [b]; Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Contrary to the motion court’s calculation of the 15-day period as starting from plaintiff’s receipt of the claimants’ NYS Form NF-2s, the NYS Form NF-2 is not a “prescribed verification form[ ],” but an application for no-fault benefits (11 NYCRR 65-3.5 [b]). Plaintiff also submitted an affirmation by attorney Harlan R. Schreiber that demonstrated timely mailing of the EUO scheduling letters by describing the standard practices and procedures used by his office to ensure that such letters are properly addressed and mailed, as well as stating that he personally supervised the mailing of these particular letters (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411, 411 [1st Dept 2015]). Plaintiff further established [*2]that each claimant failed to appear for the duly scheduled EUOs by submitting the transcripts of the EUOs.

Plaintiff demonstrated that it has no duty to pay defendants’ claims in connection with the alleged accident, including the obligation to defend and indemnify Loiseau or John Doe, because it had a “founded belief” that the alleged injuries did not arise out of the subject insured accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff did not have the benefit of discovery with respect to the claimants, but its complaint and supporting affidavits allege facts sufficient to state a viable cause of action, and, “[i]ndeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). Plaintiff’s Claim Specialist, Danette Rodriguez submitted an affidavit stating that the policy was procured online to an Albany address 22 days before the collision, that the collision occurred late at night in Queens County, far from Albany, and that the adverse driver, Alister Brown, told the police he did not believe that the claimants were in the insured vehicle at the time of the collision. She stated further that the claimants began undergoing elaborate and mirror treatments the next day, although the police accident report showed no reported injuries at the scene and no damage to either car. Moreover, during an interview with plaintiff, the alleged driver of the insured vehicle, Oneil Pierrisaint, denied ever driving the vehicle, knowing any of the claimants, or knowing Loiseau’s name, which led plaintiff to conclude that Pierrisaint’s identity had been stolen by John Doe, the unknown driver. Finally, Evans Julce, a witness to the collision, stated in an affidavit that the insured vehicle seemed to have collided with Brown’s car intentionally. Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

[*1] (March 17, 2022)

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.

Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn (Masksim Leyvi of counsel), for appellants.

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay claims from defendants Northside Acupuncture, P.C., Seo Han Medical, P.C., and Straight Up Chiropractic, P.C. in connection with a November 23, 2017 accident, reversed, on the law, without costs, and the motion denied.

The failure to appear for a properly scheduled medical examination (ME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotation marks, brackets, and citation omitted], lv denied 17 NY3d 705 [2011]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an ME, the insurer must establish that it requested MEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). As defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Gische, Mazzarelli, Friedman, Mendez, JJ.

Manzanet-Daniels, J.P., concurs in a memorandum as follows: Insofar as the majority opinion is premised on our precedent in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), I am constrained to concur; however, I favor the reasoning of our sister departments that the failure to appear for a medical examination (ME) constitutes a breach of policy term and not a failure of condition precedent that would entitle the insurer to void the policy ab initio. The defense of failure to appear for an ME is more akin to a policy exclusion than a lack of coverage in the first instance such as where the policy had terminated prior to the accident or the injuries were not caused by the covered accident (see e.g. Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]).