Index No. CV-750591-18/KI

Attorney for Plaintiff:
Zachary Whiting, Esq.
Law Office of Zara Javakov Esq., P.C.
100 Livingston St, Fl 4
Brooklyn, NY 11201

Attorney for Defendant:
William Ross Van Tuyl, Esq.
Law Offices of Buratti Rothenberg & Burns
90 Merrick Avenue, Suite 300
East Meadow, NY 11554

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

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment on ground that plaintiff’s assignor failed to appear for Independent Medical Examinations (“IMEs”). Plaintiff opposes the defendant’s motion and cross moves for summary judgment in its favor. The following bill is at issue:

Upon the forgoing cited papers, and after oral argument, the Decision/Order on defendant’s motion for summary judgment and plaintiff’s cross motion is as follows:

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action.
(Xiang Fu He v. Troon Mgt., Inc., 34 NY3d 167, 175 (2019) (internal citations and quotation marks omitted)).

I. IME No-Show

An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy.” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006)). “Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs ‘when, and as often as, the [insurer] may reasonably require.'” (Id. at 722, citing 11 NYCRR 65-1.1).

To meet its prima facie burden, the defendant must establish that: (1) it properly mailed scheduling letters for IMEs to plaintiff’s assignor; (2) the IME was timely scheduled; (3) the assignor failed to appear at the initial IME and the rescheduled follow-up IME; and (4) defendant timely denied the claim on that ground. (Motionpro Physical Therapy v. Hereford Ins. Co., 58 Misc 3d 159(A) (App Term 2018)).

Here, the defendant contends that it issued proper and timely denials based on the assignor’s failure to appear for three scheduled IMEs. Defendant submitted the affidavit of its claims representative, Christopher Stewart to explain why defendant requested the IMEs. (See defendant’s exhibit D, Stewart aff). Stewart attested that defendant requested an IME after receiving notice that plaintiff’s assignor was involved in an accident on March 22, 2018. (Id. at ¶ 14). Thereafter, defendant requested a third-party company, ExamWorks, Inc. to schedule an initial IME on June 12, 2018 at 2:15pm. (Id. at ¶ 15). ExamWorks, Inc. also rescheduled follow-up IMEs for July 10, 2018 at 1:00 pm and August 14, 2018 at 1:00 pm. ((Id.).

“Generally, proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee.” (Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co.,114 AD3d 33, 46 (2d Dept 2013)). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547 (2d Dept 2006) quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 (2d Dept 2001). To the extent that proof of mailing is based upon a standard office practice or procedure, the burden is on the insurer to present an affidavit of an employee who personally mailed the items, or an employee with personal knowledge of the office’s mailing practices and [*2]procedures. (Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc 3d 1210(A) (Civ Ct 2013)). This individual “must describe those practices or procedural in detail, explicitly denoting the manner in which she/he acquired the knowledge of such procedures or practices, and how a personal review of the file indicates that those procedures or practices were adhered to with respect to the processing of that particular claim.” (Id.)

Here, defendant relies on the affidavit of Georgianna Michios, a litigation manager at ExamWorks Inc. to establish proof of timely mailing of the IME scheduling letters. (See defendant’s exhibit I, Michios aff). The Court finds that defendant’s submission of Michios’ affidavit is insufficient to establish that the IME scheduling letters were timely and properly mailed. The Court agrees with plaintiff that the affidavit is conclusory. Michios merely states that an employee places the scheduling letters in a properly addressed envelope and mails the letter via regular mail and/ or certified mail. (Id. at ¶ 5). This affidavit fails to explicitly state ExamWorks, Inc. practices and procedures for mailing the scheduling letters.

Further, defendant’s submission of the three delivery confirmation receipt is also insufficient to prove that the IME scheduling letters were timely and properly mailed. (See defendant’s exhibit G, IME Scheduling Letters). The Appellate Division, Second Department found that defendant’s submission of a certified mail receipt and “Track & confirm” printout were insufficient where there was no evidence presented that the item purportedly mailed to the plaintiff was mailed under the proffered certified receipt number. (New York and Presbyt. Hosp., 29 AD3d 547). Here, the three delivery confirmation receipts submitted by the defendant state that the items were delivered on May 23, 2016, June 18, 2018 and July 27, 2018, respectively. However, there was no evidence presented that the items purportedly mailed to the plaintiff were mailed under the proffered certified receipt number listed on each delivery confirmation receipt. Thus, the defendant failed to establish timely mailing of the IME scheduling letters.

Even if defendant had demonstrated timely mailing of the scheduling letters, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs. Here, defendant submitted the affidavit of John Iozzio, a licensed chiropractor and acupuncturist. (See defendant’s exhibit H, Iozzio aff). The basis of Iozzio’s information is his personal knowledge of his office policy, and review of the physical file and computer records. (Id. at ¶ 3). Iozzio’s business practice is to make a notation in the file, if the individual fails to appear. (Id. at ¶ 4). Iozzio stated that he personally recorded each of Keandre Black’s nonappearance at the scheduled IMEs. (Id. at ¶¶ 6,8,10). However,

“it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. Accordingly, [e]vidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay.’ “

Further, Iozzio stated that he was present at each scheduled IME. According to Iozzio, the assignor failed to appear for the initial IME on June 12, 2018, and rescheduled follow-up IMEs on July 10, 2018 and August 14, 2018. (See Iozzio aff Iozzio at6,8,10). Iozzio neither stated how and whether he would have been able to identify the insured, or that no one appeared at the office at the time of each scheduled IME. (Longevity Medical Supply, Inc., 68 Misc 3d at 748). Therefore, the court agrees with plaintiff that Iozzio’s affidavit lacked personal [*3]knowledge regarding the assignor’s nonappearance.

Thus, defendant failed to establish that plaintiff’s assignor failed to appear at the IMEs on June 12, 2018, July 10, 2018 and August 14, 2018.

II. Timeliness of the Denial of Claim Forms

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim.” (Infinity Health Prods., Ltd. v. Eveready Ins. Co., 67 AD3d 862, 864 (2d Dept. 2009) [internal citations omitted]).

Defendant contends that on June 12, 2018 it received a bill from plaintiff for the dates of service on May 17, 2018 through June 6, 2018. The bill was in the amount of $1049.79. According to defendant, after plaintiff’s assignor failed to appear for IMEs on June 12, 2018 and August 14, 2018, a general denial form dated August 22, 2018 was mailed to plaintiff on August 23, 2022. This denial falls within the 30-days period. Also, another denial of claim form dated September 20, 2018 was mailed to plaintiff on September 21, 2018.

To establish proper mailing, defendant submits the affidavit of Carlton Lewis, a mailing manager, and certificates of mailing report. (See defendant’s exhibit E, Lewis aff; defendant’s exhibit C, Denials). According to Lewis, the items were either generated and mailed from mailing centers in Chino, California or Caledonia, Michigan. (Lewis aff ¶ 3). Lewis further stated that both denials were delivered to the U.S. Post Office, and there were no notations on the certificate of mailing reports that either denial was delayed or there were any malfunctions. (Id. at ¶¶ 9,10,15). Lewis’ affidavit and certificates of mailing reports establish proof of mailing of the denial claims forms on August 23, 2022 and September 21, 2018, in accordance with a standard office procedure. (Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 (2d Dept. 2001); Ortho-Med Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 27 Misc 3d 141(A) (App Term 2010)).

Contrary to plaintiff’s arguments, Lewis demonstrated personal knowledge of the mailing procedures. Lewis was employed as the mailing manager at both the Caledonia and Chin mailing centers (Curtin aff ¶ 1). Also, he is responsible for ensuring that the standard mailing practices and procedures are followed. (Id. at ¶ 2). Further, Lewis’ affidavit properly laid the foundation for the admission of the denial of claim forms and certificates of mailing reports as business records.

Thus, defendant timely issued denial of claim forms for the dates of service on May 17, 2018 through June 6, 2018. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at the IMEs on May 23, 2016, June 18, 2018 and July 27, 2018.

Accordingly, defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s claim.

A no-fault provider establishes its prima facie entitlement to summary judgment by (1) proof of the submission to the defendant of a claim form; (2) proof of the fact and the amount of the loss sustained; and (3) proof either that the defendant had failed to pay or deny the claim within the requisite 30—days period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (See Insurance Law § 5106(a)); Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 (2010); see also New York & Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2006)). Once plaintiff meets its prima facie [*4]burden, the burden shifts to defendant to raise a triable issue fact. (See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)).

To establish proper mailing, plaintiff submits the affidavit of its owner, Albert Khaimov to describe its’s standard office and procedures for generating and mailing bills. (See plaintiff’s exhibit C, Khaimov aff). Khaimov stated that he created a bill in the amount of $1049.79 for the dates of service on May 17, 2018 through June 6, 2018. (Id. at 20). However, he does not state when the bill was mailed to defendant. The court may, in its discretion, rely on defendant’s documentary submissions to establish defendant’s receipt of plaintiff’s claims. (Devonshire Surgical Facility v. GEICO, 16 Misc 3d 130(A) (App Term 2007)). Here, defendant’s claim representative affidavit established receipt of plaintiff’s bill on June 12, 2018. (Stewart aff 18). Further, any deficiencies in plaintiff’s proof of mailing were cured by defendant’s submission of the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills. (Bob Acupuncture, P.C. v. New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135(A) (App Term 2016); see Oleg Barshay, DC, P.C. v. State Farm Ins. Co., 14 Misc 3d 74 (App Term 2006); Longevity Med. Supply, Inc., 68 Misc 3d at 758). Therefore, defendant’s claim representative affidavit and denial of claims forms established receipt of plaintiff’s claim. Further, Khaimov stated that the bill was neither paid nor denied within the 30-days period. (Khaimov aff 20).

Defendant proved that it timely denied plaintiff’s claim by timely mailing denial of claim forms. However, as discussed above, defendant did not establish that plaintiff’s assignor failed to appear at duly scheduled IMEs. Therefore, the issue that is presented here is whether the timely denials warrant denial of plaintiff’s cross motion for summary judgment in its favor, even though the evidence of the grounds of the denials was insufficient. The court in Longevity Med. Supply, Inc. v. Progressive Ins. Co discussed how two Appellate Term, Second Department decisions reached opposite results on this issue. (See Longevity Med. Supply, Inc., 68 Misc 3d at 759-60. The court discussed that,

[In Rockaway Med. and Diagnostic, P.C. v. Country-Wide Ins. Co., 29 Misc 3d 136(A) (App Term 2010)], once the plaintiff met its prima facie burden, the Appellate Term required the defendant not only to come forward with evidence that the denial was timely, but also to lay bare the evidence of the grounds of the denial, which had to be sufficient to establish the grounds. [Three years later in Shara Acupuncture, P.C. v. Allstate Ins. Co., 41 Misc 3d 129(A) (App Term 2013), once the plaintiff met its prima facie burden that the claims were neither paid nor denied within the 30-day period after defendant’s receipt of the bill, the Appellate Term required the insurer only to come forward with evidence that the denial was timely to defeat the plaintiff’s motion for summary judgment. Put differently, once the insurer came forward with evidence that the denial was timely, the burden in Shara Acupuncture, P.C. appears to shift back to the plaintiff to establish the denial was conclusory, vague or without merit as a matter of law to be entitled to summary judgment.

(Longevity Med. Supply, Inc., 68 Misc 3d at 760) (internal citations omitted.)

Shara Acupuncture, P.C. controls here. As discussed above, the plaintiff’s prima facie burden can be established in two ways: (1) proof that the defendant had failed to pay or deny the claim within the requisite 30-days period, or (2) proof that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. (Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128(A) (App Term 2011)). If plaintiff cannot meet its prima facie burden under the first method because defendant submitted evidence of a timely [*5]denial, then the court should consider whether plaintiff met the prima facie burden under the second method. (Longevity Med. Supply, Inc., 68 Misc 3d at 760 citing Longevity Med. Supply, Inc. v. Glob. Liberty Ins. Co., 67 Misc 3d 135(A) (App Term 2020)).

Here, the plaintiff’s prima facie burden was based solely on proof that the claims were neither paid nor denied within the 30-days period. However, the defendant established that it timely denied plaintiff’s bill. Because plaintiff had not demonstrated that the denials were conclusory, vague, or without merit as a matter of law, plaintiff is not entitled to judgment in its favor.

Thus, plaintiff’s cross motion for summary judgment is granted to the extent that it established timely submission of the bill to defendant, and that it remains unpaid.

Plaintiff met its prima facie case by establishing timely mailing of the bill to defendant, and that it remains unpaid. Defendant met its prima facie case by establishing timely denial.

Accordingly, the defendant’s motion for summary judgment is granted to the extent it established that it timely denied plaintiff’s bill. The plaintiff’s cross motion for summary judgment is granted to the extent it established timely submission of the claim to defendant, and the bill remains unpaid. The issue left for trial is defendant’s IME no-show defense.

This constitutes the decision and order of the court.

Index No. CV-718889-16/KI

The plaintiff was represented by Michael Nathan, Esq., Lewin & Baglio LLP, 1100 Shames Drive, Westbury, New York 11590, (T) 516-307-1777 ext. 121, (F)516-307-1770, Mnathan@lewinbaglio.com.

The defendant was represented by Adam Waknine, Esq., Peter C. Merani, P.C., 1001 Avenue of the Americas, Suite 1800, New York, NY 10018, Phone: (212) 629-9690, Fax: (212)629-9664, E-Mail: awaknine@meranilaw.com.

After trial, held before me in the above captioned action on July 13, 2022, I find:

Plaintiff, James J. Kim, a licensed acupuncturist, commenced this no-fault action against defendant, Allstate Insurance Company (“Allstate”), following Allstate’s denial of plaintiff’s claims for no-fault benefits for acupuncture services provided from February 9, 2015, through December 7, 2015. Plaintiff’s assignor, Rick Greengus, was injured in an accident on December 7, 2013. Allstate denied the claims based upon the report of an Independent Medical Examination (“IME”) conducted by Dr. Thomas McLaughlin on March 13, 2014. At trial, Allstate defended their denials based on lack of medical necessity by solely relying upon the IME report and live testimony of Dr. McLaughlin. The plaintiff rebutted the denial through the live testimony of Dr. Kim, as well as by cross-examining Dr. McLaughlin about the contents of his IME report. Each party also submitted trial packets for the court’s consideration which were introduced into evidence on consent and without objection.

Dr. McLaughlin examined Mr. Greengus on March 13, 2014. At that time, Mr. Greengus had been receiving acupuncture services for approximately three months. Mr. Greengus complained of pain in his left shoulder and neck. Dr. McLaughlin referred to those complaints in his report as “non-descript” but did not specify what, if any, questions he asked that were designed to elicit a detailed description of Mr. Greengus’ symptoms. The report notes that Mr. Greengus indicated that his symptoms had not improved with care.

In his report, Dr. McLaughlin included a section on acupuncture treatment under the heading “Traditional Chinese Medicine (TCM) Discussion.” In relevant part, Dr. McLaughlin concludes:

Combined with a full history and inspection the TCM practitioner will also study the quality of the patient’s pulse and tongue in order to determine not only if pathology is present and the type it is, but in order to devise a treatment protocol. Traditional Chinese [*2]Medicine, acupuncture being one facet of it, is then employed in order to rebalance the body and aid in the facilitation of health and wellness. The treatments are administered by applying needles, in the case of acupuncture, to acupoints along channels that course throughout the body and promote a physiologic response. Nine of the fourteen body channels used are named after organ systems in the body. With respect to Mr. Rick Greengus’s pulse, which has a rate of 64bpm, his tongue, and the channels are unremarkable with regard to a Qi and/or blood stagnation disorder according to the principles of TCM.

Based upon his examination findings, Dr. McLaughlin concluded that no further acupuncture care was necessary because Mr. Greengus’ examination did not reveal any objective findings of dysfunction or discomfort. His trial testimony echoed those findings to a certain extent. He opined that standard practice for an acupuncturist would be to evaluate the patient by taking a history and checking certain relevant factors such as pulse, the condition of the tongue and blood stagnation. Dr. McLaughlin testified that periodic evaluation or revaluation is warranted when there is an ongoing course of treatment in order to determine whether the medical provider needs to adjust the treatment being provided (Tr at 15, 17).

The plaintiff rebutted Dr. McLaughlin’s findings through the testimony of Dr. Kim the provider who opined that continued acupuncture treatment was medically necessary due to continued neck pain, shoulder pain and lower back pain. Dr, Kim also referenced the same traditional Chinese Medicine diagnosis referenced in Dr. McLaughlin’s IME report, i.e., blood stagnation and tongue diagnosis. Dr Kim also testified that he performed through evaluations of Mr. Greengus prior to each treatment session.

After considering the testimony and evidence presented at this trial, I find that the plaintiff should have judgment in its favor. The defense being asserted by the defendant insurer is commonly known as a “IME cut-off”. The court finds this terminology, although widely used in no-fault litigation, to be imprecise and arguably misleading. To the defendant, IME cut-off is the sole proper basis for the denials. The assertion is that after March 14, 2014, based upon the findings of Dr. McLaughlin after the IME, Mr. Greengus was perfectly healthy and no longer required any further treatment, specifically acupuncture and chiropractic related. The defendant would have the court believe that the injured party’s health and condition is frozen in time as of the date of the IME and, absent evidence from the plaintiff that rebuts the findings of the IME, the plaintiff has failed to meet its burden for recovery of no-fault benefits. This misstates the purpose and/or probative value of an IME.

An IME is not some inflexible permanent fixture that cannot be altered or changed. An IME is merely a snapshot of the injured party’s medical condition as of the date of the IME. The opinion of the doctor conducting an IME and issuing a report that no further treatment or testing is needed is nothing more than an expert’s prediction that the claimant has fully recovered or received the maximum therapeutic benefit from the treatment and does not presently need any additional treatment.

An IME cut-off is not a complete defense to the action. While an IME can demonstrate a lack of medical necessity for future treatment, it does not, by itself, conclusively demonstrate that any future treatment would not be medically necessary. Instead, the IME merely shifts the burden to the plaintiff to demonstrate, by a preponderance of the credible evidence, that the treatment at issue was medically necessary (see Amato v State Farm Ins. Co., 40 Misc 3d 129(A) [App Term 2d Dept 2013], Unitrin Advantage Insurance Company v Lake Chiropractic, PLLC, [*3]64 Misc 3d 1201[A] [New York County Civ Ct 2019]; Amato v State Farm Ins. Co., 30 Misc 3d 238, 242 [NY Dist Ct 2013]; All-In-One Med. Care, P.C. v Govt. Employees Ins. Co., 43 Misc 3d 726, 734 [NY Dist Ct 2014]).

The defendant maintains that by not recognizing the IME as a fixed cut-off date for no-fault benefits deemed not medically necessary, the Court is allowing for the reimbursements of benefits indefinitely so long as the provider self-certifies that the treatment is providing medical benefits to the injured party. This is not the Court’s intention nor is it the practical result. Again, the only effect of the pre-claim IME on this litigation was to shift the burden to the plaintiff-provider to show that the treatment was medically necessary. If the defendant subsequently felt the need to try to further limit the scope of future treatment, they could have requested a supplemental IME, an EUO of the provider, or they could have had their expert conduct a peer review of all the post-IME treatment records. Instead, the defendant just denied the bills and relied on a single pre-treatment IME. The defendant is entitled to rely on that single IME if they wish, but the effect is no different than any other denial based on the alleged lack of medical necessity. It simply shifts the burden to the plaintiff, who can then rebut with credible testimony and shift the burden back to the defendant insurer.

That is exactly what happened here. Dr. Kim credibly testified that he conducted an evaluation of the patient each time the patient came to see him before providing any treatment (Tr at 55, 60). This testimony is bolstered by the records in evidence of Dr. Kim’s treatment of the patient prior to the IME – which each contain notes regarding the current diagnosis of the patient and notes of what was evaluated. (Plaintiff’s Exh. D, pages 182-187, 332-356, 422-427, 451-456). The court credits the testimony of Dr. Kim that further medical treatment was necessary for the injured assignor, over the testimony of Dr. McLaughlin, that it was not medically necessary. The court finds that Dr. Kim properly performed additional evaluations of the patient, consistent with the very same standards of traditional Chinese Medicine referenced in Dr McLaughlin’s report, and Dr. Kim was in possession of both objective and subjective findings which correlated to support the conclusion that continued treatment was medically necessary. Dr. Kim possessed more information and was in a better position to make the determination than Dr. McLaughlin. I find that Dr. Kim’s testimony is sufficient to demonstrate, by a preponderance of the credible evidence, that the treatments at issue were medically necessary.

Accordingly, judgment is rendered for the plaintiff in the amount of $2018.77 — the amount the parties stipulate is correct under the fee schedule — plus statutory interest and attorney fees.

The clerk may enter judgment.

CV-708764-2020/KI

Attorney for Petitioner: Oleg Rybak, Esq.The Rybak Firm, PLLC1810 Voorhies Avenue, 3rd Floor, Suite 7 Brooklyn, NY 11235
Attorney for Respondent:Lola Klis, Esq. Law Office of Goldstein, Flecker & Hopkins 2 Huntington Quadrangle, Suite 2N01 Melville, NY 11747

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment, numbered as they appear on EDDS.

After argument, Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary judgment are consolidated for disposition purposes only and decided jointly as follows:

In this action seeking assigned no-fault benefits, SB Chiropractic, P.C. a/a/o Rivera, Eddie (“Plaintiff”) seeks summary judgment against Geico Insurance Co. (“Defendant”), or in the alternative, an order limiting the issues of fact for trial and dismissing Defendant’s affirmative defenses. Defendant opposes the motion and cross-moves for summary judgment in its favor.

Plaintiff alleges that it provided medical care to Eddie Rivera (“Assignor”) from July, 2017 through April 2018 after a July 9, 2017 automobile accident. It is undisputed that Plaintiff sent ten bills to the Defendant insurance carrier for this medical care (Plaintiff’s Motion Ex. 3). Each bill includes a list of dates when care was provided, a Current Procedural Terminology code (“CPT”) designated by the Worker’s Compensation Fee Schedule (“WCFS”) to be used for the procedure or procedures that were performed on that date, and a monetary amount billed. (Id.) The amount billed is derived from the multiplication of the Relative Value Unit (“RVU”) which is assigned to the CPT code by a conversion factor based upon where in New York State the services were rendered (see Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A], [App Term 2016])^[FN1] .

Defendant asserts that it partially paid or denied each of these bills, by sending Plaintiff”Denial of Claim forms” within 30 days of receipt (11 NYCRR 65-3.8[c]; see Defendant’s Ex C). Each Denial of Claim form includes the amount Defendant reimbursed the Plaintiff for each date of service, along with a note explaining the reasons for any reduction in reimbursement from the amount requested (Defendant’s Ex. C). Defendant’s cross-motion contains both an affirmation and an affidavit from a “Claims Representative,” which explain the computations utilized for each reimbursement, partial reimbursement, and denial (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

Plaintiff argues that it is entitled to summary judgment because it submitted claim forms to the Defendant, Defendant failed to issue a timely denial of claim form and/or the form was conclusory, vague, or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, 2011 [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011], Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501, [2015][“A plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer”]). Defendant argues that it properly and timely mailed Denial of Claim forms, and that each partial payment or denial was proper. Therefore, the issue is whether Defendant’s denials are sufficient to defeat Plaintiff’s motion for summary judgment, and whether they entitle Defendant to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 934 NY2d 32, [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2011]).^[FN2]

The standard for summary judgment is clearly articulated in CPLR § 3212(b) which provides that “the motion 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 [*2]directing judgment in favor of any party.” The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Summary judgment should be granted when the moving party makes a prima facie showing of entitlement to judgment as a matter of law, giving sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]).

In order to succeed on its motion, Defendant must establish that it mailed the Denial of Claim forms within 30 days of receiving Plaintiff’s bills. To establish that denial of claim forms were mailed on time, the insurance company may rely upon the affidavit of a claims associate. Proof of mailing may be shown based on a mailing receipt, or, that the item was mailed pursuant to the affiant’s standard office practices and procedures (GL v Allstate Ins. Co., 2018 NY Slip Op 50842[U] [2d Dept 2018]). The claim representative must demonstrate, through an affidavit, knowledge of the insurance company’s standard office practices or procedures, and that the items were properly addressed and mailed pursuant to these practices or procedures (St. Vincent’s Hosp. of Richmond v Govt. Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]). Crucially, an insurer’s non-substantive technical or immaterial defect or omission shall not affect the validity of a denial of claim (11 NYCRR 65-3.8[h]). Proof of a standard office practice and procedure gives rise to a presumption of mailing and receipt (Cit Bank N.A. v Schiffman, 36 NY3d 550 [2021]). To rebut the presumption,

“[T]here must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient” (Id).

Defendant attaches to its cross-motion an affidavit from Cleone Victor, (“Victor Affidavit”) who avers that they are a “claims associate” in Defendant’s Woodbury, New York, office (Defendant’s Cross Ex. B). The Victor Affidavit recounts, in detail, Defendant’s standard office procedures for mailing and processing bills, that Plaintiff’s bills were processed according to these procedures, and that Denial of Claim Forms were processed according to these procedures. Cleone Victor describes Defendant’s application of the ATLAS Claim System to process bills and denials like the ones submitted by Plaintiff here (Defendant’s Cross Ex. B) and how the system is designed to ensure that the denials arrive to the Defendant within the required time.

Plaintiff argues that the Victor Affidavit is insufficient because it fails to lay a proper foundation for Victor’s knowledge of Defendant’s mailing processes. But, Plaintiff’s objections are mainly technical, grammatical arguments rather than based on merit, and, Plaintiff misstates the Victor Affidavit multiple times; Plaintiff argues that Cleone Victor “never asserts that she has knowledge of what procedures were in place at the time mailing purportedly occurred” and that “Victor states that she has been employed by Geico in the Woodbury, New York office since on or about January 1995” (Plaintiff’s Aff in Opp., 72). The Victor Affidavit, however, clearly states: “[t]he procedures described in this affidavit were in place and were utilized by GEICO in the Woodbury Office at the time that the documents relating to this matter were created, printed and mailed” and, “I have been employed by GEICO in the Woodbury, New York office since on or about June 2005” (Defendant’s Cross Ex. B). Plaintiff’s remaining [*3]arguments similarly lack a factual basis necessary to rebut the presumption of timely mailing; Defendant has demonstrated that it timely mailed the Denial of Claim forms in this case.

Plaintiff also maintains Defendant has not met its burden on summary judgment because Defendant failed to establish it properly reimbursed Plaintiff for its bills. To establish proper reimbursement pursuant to the WCFS, the Defendant may submit an affidavit setting forth the calculation (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]). Notably, an expert affidavit is not required to support fee schedule reductions (Id). Rather, the Defendant needs to prove that it multiplied the RVU assigned to the CPT code for the services rendered by a conversion factor based upon where in New York State the services were rendered (Renelique v Am. Tr. Ins. Co., 53 Misc 3d 141[A]), which, in this case, is $5.78.

In addition to the Victor Affidavit, Defendant’s cross-motion includes an affirmation in support (“Affirmation”) which explains the method Defendant used to calculate the proper reimbursement of the Plaintiff’s bills. The Affirmation and Victor Affidavit explain that based upon the WCFS formula, Plaintiff often billed Defendant in excess of the permissible amount. For example, WCFS Ground Rule 2 specifies that reimbursement for an initial evaluation shall be limited to 13.5 RVUs (Defendant’s Cross Ex. B). On 7/10/2017, however, Plaintiff billed 14.04 RVU’s for the initial evaluation: one unit of code 99203, carrying an RVU of 9.47, and one unit of code 98940, carrying an RVU of 4.57. Defendant reimbursed Plaintiff for the maximum permissible amount, 13.5 RVUs, and denied the remaining .54 RVUs. As provided below, Victor’s Affidavit and Defendant’s Affirmation articulate the application of the WCFS to each of Plaintiff’s bills and therefore an expert affidavit is not required (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], [App Term 2017]).

The Affirmation and the Victor Affidavit explain Defendant’s processing of Plaintiff’s ten bills as follows:

• Defendant received Plaintiff’s first bill on August 10, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $530.12 on July 10-14, 17-21, 24-28, 31 of 2017 and August 1-2 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on August 30, 2017, determined that Plaintiff was entitled to $527.00, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS permits reimbursement for only 13.5 RVU per day, and Plaintiff billed for 14.04 RVU (Defendant’s Cross Ex. C at 77-79).

• Defendant received Plaintiff’s second bill on September 18, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $269.17 on August 23-24, and 28-30 of 2017 and September 7-8 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on October 10, 2017, determined that Plaintiff was entitled to $206.77, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day, for “modalities and procedures” and Defendant had already reimbursed a separate provider, Healthway Medical Care, P.C., for 7.65 RVU on each date. Defendant includes the bills and reimbursements to the separate provider for services provided to Assignor on the same date. The court notes that Defendant actually reimbursed more than what was required on this bill; Defendant paid 4.6 RVU for the date of service when .35 RVU was all [*4]that remained of the allotment of 8 RVU (Defendant’s Cross Ex. C at 87-88).

• Defendant received Plaintiff’s third bill on October 23, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $361.65 on October 2-5, 10, 12-13, and 16 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 8, 2017, determined that Plaintiff was entitled to $314.42, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement amount as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and the Defendant had already paid a different provider 7.65 RVU. (Id.) In addition, the WCFS provides for a maximum reimbursement of 11 RVU for a re-evaluation, but the Plaintiff had billed for 13.46 RVU (Defendant’s Cross Ex. C at 100-102). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received the Plaintiff’s fourth bill on November 13, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $219.64 on October 18, 20, 24, 26, and 30 of 2017 (Defendant’s Cross Ex. C). Defendant issued its Denial of Claim form on November 30, 2017, determined that Plaintiff was entitled to $191.02, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement as the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on three of the four dates of service included in that bill (Defendant’s Cross Ex. C at 115-116). The court notes that Defendant overpaid for certain procedures on this bill.

• On November 20, 2017, Frank J. McNally, a New York State licensed chiropractor, and Rachel Saperstein, a New York State licensed acupuncturist, both conducted an Independent Medical Evaluation (“IME”) of Assignor, on behalf of Defendant. After these evaluations and a review of certain delineated medical records, both concluded that no further chiropractic or acupuncture treatment was medically necessary (Defendant’s Cross Ex. D). A “Blanket Denial of Claim” form was generated on November 27, 2017 and notice was provided to Plaintiff that further treatment was not medically necessary (Defendant’s Cross Ex. C). The form also provided that all benefits for treatment would be denied effective December 3, 2017 (Id).

• Defendant received Plaintiff’s fifth bill on December 4, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $323.68 on November 2, 6, 8, 10, 14-15, and 27 of 2017 (Defendant’s Cross Ex. C). Respondent issued its Denial of Claim form on December 18, 2017, determined that Plaintiff was entitled to $266.44, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement because the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on six of the seven dates of service included in that bill (Defendant’s Cross Ex. C at 129-130). The court notes that Defendant overpaid for certain procedures on this bill.

• Defendant received Plaintiff’s sixth bill on December 22, 2017. The bill seeks reimbursement for treatment services rendered to the Assignor in the amount of $138.72 on November 28 of 2017 and December 1, and 4 of 2017 (Defendant’s Cross Ex. C). Defendant [*5]issued its Denial of Claim form on January 8, 2018, determined that Plaintiff was entitled to $73.40, and timely denied the remainder of the bill (11 NYCRR 65-3.8). Defendant properly reduced Plaintiff’s reimbursement for two reasons: first, the WCFS provides for a maximum reimbursement of 8 RVU per day for “modalities and procedures,” and Defendant had already paid a different provider 7.65 RVU on two of the dates of service included in that bill (Defendant’s Cross Ex. C at 143-145). The remaining procedures were denied based upon the IME reports which determined that there was no further “acupuncture, chiropractic, massage therapy, diagnostic testing and supplies treatment” necessary as of December 3, 2017 (Defendant’s Cross Ex. D).

• Defendant received Plaintiff’s seventh through tenth bills on January 15, 2018, February 5, 2018, March 26, 2018, April 19, 2018, which were all timely denied, on January 19, 2018, February 12, 2018, April 4, 2018, May 1, 2018, respectively, based upon the IME reports and the accompanying Blanket Denial (Defendant’s Cross Ex. C at 158-182), as well as the WCFS.

Plaintiff attaches a rebuttal fee schedule affidavit (Plaintiff’s Opp. Ex. 6), to rebut the Victor Affidavit and Defendant’s use of the WCFS. However, the affidavit purports to, but does not actually use the billing codes in Plaintiff’s bills. Rather, the affidavit explains why Plaintiff purportedly billed for medical procedures using codes 97799, 97810, 97811, and 99204 when in fact the bills seek reimbursement for procedures utilizing codes 99203, 98940, 98941, 99212, and 97139. As such, Plaintiff’s affidavit does not rebut, or even relate to, the Victor Affidavit. Furthermore, the Defendant’s fee schedule denials in this case do not rely upon the billing codes. Defendant denied payment of these bills because Plaintiff billed more than the maximum RVU per day per the WCFS Ground Rules, or Defendant paid a different provider for treatment performed on Assignor on the same date (Defendant’s Cross Ex. B). Accordingly, the rebuttal fee schedule affidavit does not successfully challenge the Defendant’s use of the WCFS. The court finds Defendant’s use of the WCFS proper.

Plaintiff also challenges Defendant’s denial of claims based upon lack of medical necessity. Generally, Plaintiff’s bills carry a presumption of medical necessity (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2d Dept 2009]). On summary judgment, Defendant has the burden to rebut this presumption (Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], [App Term 2015]). If rebutted, the burden shifts back to the Plaintiff to demonstrate that the procedures were medically necessary (Id). Plaintiff argues that Defendant has not rebutted the presumption of medical necessity, and that Defendant has failed to provide a sufficient foundation for the authority of the IME reports.

The first IME report, written by Frank J McNally, D.C., a New York state licensed chiropractor, finds that “[t]here is no need for further chiropractic treatment. There is no need for further diagnostic testing, household help, medical supplies, special transportation, or massage therapy, from a chiropractic standpoint.” (Defendant’s Cross Ex. D). Dr. McNally specifies that the Assignor’s diagnosis is “[r]esolved cervical sprain/strain…[r]esolved lumbar sprain/strain.” (Id). He further notes that “[t]he claimant is able to work if he chooses to seek employment, from a chiropractic standpoint” (Id). Similarly, Rachel Saperstein, L.Ac. concludes that “no further acupuncture treatment is recommended or necessary…” (Defendant’s Cross Ex. D). She also notes “[t]he [Assignor] does not appear to be in any acute distress or discomfort…[a]mbulation and gait is normal, and the [Assignor] moves freely and without the assistance of any aid or appliance” (Id). These IME reports each provide a detailed accounting [*6]of the signatory’s personal evaluation of Assignor based upon documents specified and answers provided by the Assignor at the evaluation.

Plaintiff argues that the IME’s do not “explain how the treatment or services provided were ineffective and cite medical literature and standard practices in the community to support the opinion” (Plaintiff’s Opp., 37). However, Defendant’s IME’s do not state that the medical treatment provided was ineffective; on the contrary, they both state that the issues that the Assignor complained about have been resolved, and that Assignor does not require any further medical treatment for the condition caused by the accident. Accordingly, Plaintiff’s argument is misplaced. Plaintiff also argues that the IME reports are inadmissible because the physician’s signature was “computerized, affixed, or stamped” (Plaintiff’s Opp., 48). However, the signature pages of the affidavits clearly show that the signatures were handwritten and notarized.

The court finds Defendant has rebutted the presumption of medical necessity. The burden therefore shifts back to the Plaintiff to demonstrate medical necessity. Plaintiff submits an “Affidavit of Medical Necessity” from Mark Tischler, D.C., the owner of the Plaintiff corporation, which provides, in vague and conclusory terms, the benefits of acupuncture treatment, and the alleged weaknesses and shortcomings of Defendant’s IME reports (Plaintiff’s Opp. Ex. 1). Dr. Tischler defends the medical necessity of the “acupuncture treatments” but does not mention the medical necessity of the chiropractic treatments Plaintiff is seeking reimbursement for. Moreover, Defendant does not claim that all of the treatments rendered were medically unnecessary. Rather, the only treatments denied for lack of medical necessity were the treatments rendered after the IME reports were issued. Defendant also has produced a report from both a licensed chiropractor and a licensed acupuncturist to rebut the presumption of medical necessity. However, the only relevant portion of the Tischler Affidavit which relates to the post-IME condition of the Assignor is:

“[a]fter the IMEs performed by [D]efendant, Rivera, Eddie returned to my office, maintained that he still experienced significant pains and discomfort, and required medical treatment for injuries he suffered in the accident. Having re-evaluated Rivera, Eddie post-IME evaluation I concluded that he was still suffering from the effects and injuries sustained in the accident and further treatment was required given the fact that it reduced her [sic] pain.” (Plaintiff’s Opp. Ex. 1, 27)

These conclusory statements do not meet the burden of demonstrating that the treatments provided were medically necessary as the Tischler Affidavit does not describe Assignor’s physical condition, nor provide details of which medical treatments were necessary at that time (Dayan v Allstate Insurance, 49 Misc 3d 151[a]). As such, Plaintiff has not sufficiently demonstrated the medical necessity of the post-IME medical treatment on summary judgment (Id).

By submitting a detailed, fact-specific and comprehensive set of papers, Defendant has eliminated material issues of fact from this case and is entitled to summary judgment as a matter of law. Defendant’s Denial of Claim forms clearly demonstrate that Plaintiff submitted ten bills to Defendant. Certain bills were accurately reimbursed according to the WCFS for the medical care provided to Assignor, and certain bills were partially paid based upon the basic math required by the WCFS. Certain bills were partially denied based upon prior payment to a separate provider for care rendered on that same date. The calculations are clearly explained in the Victor affidavit and the Defendant’s Affirmation in support. Furthermore, certain bills were denied based upon a credible and unrebutted lack of medical necessity. In fact, Defendant [*7]concedes that it actually overpaid Plaintiff on multiple bills. Accordingly, Defendant has met its burden, and its motion for summary judgment is granted pursuant to CPLR 3212. Plaintiff’s motion for summary judgment, or to limit the issues of fact for trial is denied in its entirety. This action is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

Footnotes

Footnote 1: Neither party disputes that the appropriate conversion factor according to the WCFS in this case is Region IV, in the amount of $5.78 (Defendant’s Cross Ex E 211-212).

Footnote 2: While Plaintiff argues that Defendant’s defenses should be dismissed, this blanket argument is not supported by any facts or specificity and that branch of Plaintiff’s motion is dismissed.

[*1]

Civil Court of the City of New York, Kings County, July 28, 2021

APPEARANCES OF COUNSEL

Brian E. Kaufman for defendant.

Richard Rozhik for plaintiff.

The decision/order on defendant’s motion for summary judgment and plaintiff’s cross motion for summary judgment is decided as follows:

It is well settled that a proponent for 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 (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

A moving defendant seeking summary judgment to dismiss the complaint based upon failure to appear for an examination under oath (hereinafter EUO) must show timely mailing of the EUO scheduling letters and that the assignee, in fact, failed to appear (see 11 NYCRR 65-1.1; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]).

Defendant did so here. Defendant established that it scheduled plaintiff’s EUO four times by letters dated, October 26, 2017, January 10, 2018, March 26, 2018, and May 25, 2018, for EUOs noticed for January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018, respectively. Defendant also established that plaintiff failed to appear at each of the noticed EUOs.

Moreover, defendant demonstrated that plaintiff repeatedly sent letters to counsel for Nationwide stating that it needed two additional months to appear for the EUO, while requesting [*2]an explanation regarding the basis of the EUO and impermissibly demanding a $3,500 appearance fee per claimant to appear at the noticed examinations under oath. The said letters were sent on December 27, 2017 (in relation to the January 8, 2018 EUO), March 16, 2018 (in relation to the March 20, 2018 EUO), May 9, 2018, and May 21, 2018 (in relation to the May 23, 2018 EUO), and June 28, 2018 (in relation to the July 12, 2018 EUO). Each of the aforementioned letters were sent within days or weeks of the respective scheduled EUOs although each EUO request provided nearly two months’ notice as per plaintiff’s request to accommodate plaintiff’s claim that it had a busy calendar. Despite repeatedly claiming to be unavailable to attend the EUO and successfully obtaining two{**73 Misc 3d at 253} months’ adjournment, plaintiff failed to submit an affidavit of an individual with personal knowledge to establish its unavailability on any of the dates the EUO was noticed for or an affidavit attesting to any date it provided defendant that plaintiff would be available to appear.

The purpose of the No-Fault Law and regulations, Insurance Law § 5102 et seq. and 11 NYCRR part 65, is to ensure prompt payment of medical claims for treatment provided to people injured in automobile accidents regardless of fault. If an EUO is requested as additional verification an insurer must schedule it within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Plaintiff frustrated the intent of the no-fault regulation by attempting to delay the claim over a period of nine months by claiming it needed two months’ notice for each noticed EUO, thereafter receiving two months’ notice of the EUOs and then continuing to claim it was unavailable and further, without authority, requiring $3,500 for the appearance.

The record demonstrates that plaintiff failed to appear for EUOs scheduled on four occasions, January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018. Moreover, the record demonstrates that although defendant Nationwide attempted to accommodate plaintiff by noticing the EUO four times at plaintiff’s request, plaintiff nonetheless failed to appear for any of the noticed EUOs. The last scheduled EUO was for July 12, 2018, and the claims were timely denied on July 19, 2018.

Both parties were given an opportunity to orally argue this motion, at which time plaintiff raised the issue of a timely denial based on a recent case, Quality Health Supply Corp. v Nationwide Ins. (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It appears that Quality Health stands for the proposition that a denial issued more than 30 days after the second EUO no-show, despite the scheduling of subsequent EUOs, is untimely. In Quality Health, the record before the court failed to establish that there were any objections to the EUO request and/or requests seeking an adjournment or postponement of the EUO.

The court finds that the case herein is distinguishable from Quality Health because the defendant herein demonstrated to the court that plaintiff requested that defendant Nationwide notice the EUO additional times, and that defendant in good faith was attempting to accommodate plaintiff’s request by rescheduling the EUOs.{**73 Misc 3d at 254}

Defendant has submitted sufficient proof to demonstrate that plaintiff failed to appear at four duly scheduled EUOs and therefore, failed to comply with a condition precedent to coverage. The plaintiff failed to provide evidence to rebut defendant’s showing.

Plaintiff’s contention that defendant is unable to establish the January 8, 2018 no-show as the transcript states a time of 11:45 p.m. (as opposed to 11:45 a.m.) lacks merit. The court finds that the EUO was noticed for 11:00 a.m. and that the affidavit of Allan Hollander stated that the scheduled start time of the EUO was 11:00 a.m. This is an obvious error in the transcript. Further, the December 27, 2017 correspondence from The Rybak Firm, PLLC, confirmed that FJL Medical Services PC would “be unavailable to appear for the requested EUO currently scheduled for [*3]January 8, 2018.” The court finds that the error in the transcript is insignificant to raise a triable issue of fact.

In light of the above, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed.

CV-739339-17/KI

Hollander Legal Group, P.C., Melville (Jonathan Drapan of counsel), for Nationwide Ins., defendant.

The Rybak Firm, LLC, New York City (Oleg Rybak of counsel), for MSB Physical Therapy P.C., plaintiff.

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

Papers Numbered

Notice of Motion, Affirmation and Affidavits Annexed

Exhibits A-Z 1-18

Notice of Cross Motion, Affirmation in Support of Cross Motion and In Opposition to Motion, Affidavits Annexed Exhibits 1-8 19-22

Affirmation in Opposition to Cross Motion Exhibits A-B 23-24

Replying Affidavits NONE

In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled Examinations Under Oath (EUOs) on four separate occasions (Motion Seq. No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant, or in the alternative, moves for an order compelling defendant to provide discovery (Motion Seq. No. 002). Defendant opposes the cross motion.

The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff’s requests to reschedule the EUOs for lengthy adjournments of two to three months. Additionally, another issue presented is [*2]whether the EUOs scheduled before defendant received the bills at issue tolled the 30-day period for defendant to pay or otherwise deny the bills received, where the record contains no evidence that defendant had otherwise sent any requests for additional verification during the relevant 30-day periods for some of those bills.

A prior decision and order dated July 12, 2021 decided both the motion and cross motion. However, that decision and order is hereby recalled and vacated, because this court inadvertently overlooked defendant’s opposition papers to plaintiff’s cross motion, which are now considered in this amended decision and order.

BACKGROUND

On September 7, 2016, plaintiff’s assignor, Sayquan U. Bright, was allegedly injured in a motor vehicle accident (see defendant’s exhibit A in support of motion, complaint ¶ 2). This action concerns eight bills for dates of service during the period of January 13, 2017 through February 15, 2017:

(see defendant’s exhibits E-H in support of motion).

Prior to the alleged receipt of the bills, by a letter dated November 8, 2016, purportedly sent by certified mailed and first class mail to plaintiff, defendant’s counsel scheduled an EUO of plaintiff on November 21, 2016 at 2:00 p.m., at its office in Melville, New York, regarding 14 claimants which plaintiff treated, including Bright (see defendant’s exhibit I in support of motion, scheduling letter).

By a letter dated November 17, 2016 (four days before the scheduled EUO), purportedly sent by fax, the Rybak Firm PLLC responded that it represented plaintiff, requested that the EUO be rescheduled to a location in Brooklyn, New York, and advised that plaintiff “will be unavailable for the months of November and December due to the upcoming seasonal holidays” (defendant’s exhibit J in support of motion). Plaintiff’s counsel also noted that the EUO date conflicted with another scheduled EUO for a different medical provider which plaintiff’s counsel [*3]represented (id.). Plaintiff’s counsel therefore requested that plaintiff’s EUO be rescheduled to January, and requested reimbursement of $1,500 per claimant prior to the commencement of the EUO (id.). In closing, the letter stated, “Your failure to respond to this letter at least three (3) business days prior to the next scheduled EUO will be deemed a waiver of Nationwide’s rights to conduct EUO for the above named assignee(s)” (id.).

According to defendant’s counsel, Allan S. Hollander, plaintiff failed to appear at the EUO, and counsel placed a statement on the record accordingly at 2:53 p.m. (see defendant’s exhibit K in support of motion, aff of Allan S. Hollander ¶ 5 and tr. at 5). Hollander stated that plaintiff’s counsel “asked for a date in January . . . and I responded to him via a letter, that we would select a date in January to conduct his client’s examination under oath” (tr. at 6).

EUO of plaintiff on January 23, 2017

By a letter dated November 22, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on January 23, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding the 14 claimants, including Bright (see defendant’s exhibit L in support of motion, scheduling letter). The letter further stated,

“Provided your client appears at the examination under oath and answers questions with respect to the corporate structure of MSB Physical Therapy and the treatment of the patients named herein, Nationwide will honor your client’s reimbursement request and present your client a check for $1,500.00. Nationwide will show your client the check prior to the examination under oath and will provide your client with the check subsequent to its completion”

(id.). By a letter dated November 28, 2016, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel again notified plaintiff of the EUO on January 23, 2017 at 11:00 a.m. in Brooklyn, New York (defendant’s exhibit M in support of motion).

By a letter dated January 10, 2017, purportedly sent by first class mail, plaintiff’s counsel responded,

“MSB Physical has extended their schedule till the end of February 2017, and will be unavailable to appear for the requested EUO currently scheduled for January 23, 2017. Please take further notice that it is very common amongst medical providers to have their schedules fully booked for about the same period of 2-4 months depending on the circumstances, as well to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO”

(defendant’s exhibit N in support of motion). Plaintiff’s counsel again indicated that the EUO was scheduled on the same date as the EUO of another provider which plaintiff’s counsel represented (id.). Plaintiff’s counsel requested an EUO be scheduled in March (id.). Lastly, plaintiff’s counsel indicated that it had suggested an amount of $1,500 per claimant for reimbursement (id.).

By a letter dated January 17, 2017 addressed to plaintiff’s counsel, defendant’s counsel responded, in relevant part,

“Please be advised that a representative from this office will be present to place a default statement on the record concerning your client’s non-appearance at the EUO on January 23, 2017. Your correspondence further states that your client now needs an additional [*4]two to four months to appear and be ready for the examination under oath.

As such, this office will document the default of your client’s appearance at the EUO on January 23, 2017. Thereafter, this office will send notification noticing your client for a third and final EUO to take place on March 21, 2017. You should already be aware that your client failed to appear and/or asked to adjourn an EUO scheduled for November 21, 2016. Thereafter, your client was noticed two months later for the EUO to take place on January 23, 2017. As such, in good faith, Nationwide will afford your client one final opportunity to appear for an EUO for March 21, 2017.

Additionally, your correspondence asks for reimbursement in the amount of $1,500 for appearing at an examination under oath. . . . If your client wants more than $1,500.00 for its appearance at the EUO, your client will have to substantiate same by submitting proof of actual loss of earnings in the amount greater than $1,500.00″‘

(defendant’s exhibit O in support of motion).

According to defendant’s counsel, Christopher Volpe, plaintiff failed to appear at the EUO on January 23, 2017, and counsel placed a statement on the record accordingly at 1:35 p.m. (see defendant’s exhibit P in support of motion, aff of Christopher Volpe ¶ 4 and tr. at 5-6).

EUO of plaintiff on March 21, 2017

By a letter dated January 25, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on March 21, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit Q in support of motion, scheduling letter).

By a letter dated March 16, 2017, purportedly sent by fax, plaintiff’s counsel responded,

“Please accept this letter as a good faith effort on the part of MSB Physical to comply with all the policy requirements of Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”). As mentioned before, our client is prepared to meet its obligations to cooperate in the investigation of all claims, and is ready to proceed with a mutually convenient and properly scheduled EUO with the basis for this request provided. . . .

However, once again Nationwide has failed to provide our client with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim, while our client has an absolute right to request for the basis of this EUO request, and Nationwide has a corresponding basis to provide such an explanation. . . .

As for the scheduled EUO, please be advised that MSB Physical has extended their schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 21, 2017. There is nothing wrong or illegal about that, but common medical practice for medical providers to have their schedules fully booked for about the same period 2-4 months depending on the circumstances, as well as to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO.

Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person who is being examined, we preserve our client’s rights. Please let our office know which other dates in May 2017 Nationwide is available to conduct the EUO of MSB Physical so that we may arrange for a mutually convenient date, time and location. Pursuant to 11 NYCRR 65-3.2 and 11 NYCRR 65-3.5(e), the refusal to adjourn an EUO is a direct violation of the No-Fault regulations”

(defendant’s exhibit R in support of motion).

According to defendant’s counsel, Caitriona McCarthy, plaintiff failed to appear at the EUO on March 21, 2017, and counsel placed a statement on the record accordingly at 12:01 p.m. (see defendant’s exhibit S in support of motion, aff of Caitriona McCarthy ¶ 4 and tr. at 6-7).

EUO of plaintiff on May 19, 2017

By a letter dated March 23, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 (see defendant’s exhibit T). The letter further stated, in pertinent part,

“Your client has now missed its March 21, 2017 EUO date. You had asked this office previously to notice the examination under oath two months in advance due to the fact that your client’s calendar was booked in January. As such, Nationwide, in good faith, noticed the EUO two months from January to March 21, 2017 to afford your client every opportunity to clear its calendar and appear for its noticed examination under oath.

Nevertheless, once again, on the eve of the examination under oath, four days before said examination under oath, you are contacting this office and stating your client cannot appear due to its busy schedule.

You are stating in this correspondence that Nationwide has not provided your client with its good reasons and objective basis for noticing your client for an examination under oath. Please be advised that your client has been noticed for an examination under oath for the following reasons, which included but are not limited to:

1. The listed owner of MSB Physical Therapy, Maria Sheila Buslon, P.T., lives and works in Florida. This raises questions as to the true ownership and control of the New York P.C.;

2. The treating physical therapist, Ankit Baldevbhai Patel, is performing services as an employee of MSB Physical Therapy, P.C. and PFJ Medical P.C. on the same dates;

3. There is no Workers’ Compensation policy found for your client’s entity;

4. There is no phone number found on any of the bills or letterhead for your client’s company; and

5. Clinic inspections into your client’s facility have been refused.

The aforementioned are some of the reasons why Nationwide has noticed your client for an examination under oath. Nationwide is trying to determine whether or not your client is properly structured under the Business Corporation Laws of the State of New York and eligible to receive New York State No-Fault Benefits.

* * *

Your client has failed to appear for three examinations under oath with respect to the above claims. Nationwide will notice the examination under oath of your client for a day in May, 2017. The May examination under oath will be the final opportunity for your client to appear for an examination under oath with regard to the claims at issue. The date of that examination under oath will be May 19, 2017 . . . “

(defendant’s exhibit T in support of motion; see also defendant’s exhibit Y in support of motion, aff of Linda Arnold ¶ 4).

By a letter dated March 29, 2017, purportedly sent by first class mail to plaintiff’s counsel, defendant’s counsel scheduled an EUO of plaintiff on May 19, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant’s exhibit U in support of motion, scheduling letter).

According to defendant’s counsel, Michael Weaver, plaintiff failed to appear at the EUO on May 19, 2017, and counsel placed a statement on the record accordingly at 12:10 p.m. (see defendant’s exhibit V in support of motion, aff of Michael Weaver ¶ 4 and tr. at 6-7).

By a letter dated June 23, 2017, purportedly sent by first class mail, plaintiff’s counsel wrote,

“This correspondence is in reply to your letter dated June 1, 2017 pertaining our client’s outstanding EUO, which is still required to be submitted by our client to Nationwide Affinity Insurance Company of America and Titan Indemnity Company (“Nationwide”).

Please accept this letter as another good faith effort on the part of MSB Physical to comply with all policy requirements of Nationwide. . . .

However, upon numerous requests, up to date our client has not been provided with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. Instead, you repeatedly list the same irrelevant and misleading reasons (based upon mere speculation and suspicion as opposed to a good faith substantive basis), which we have already objected to in our previous correspondence regarding this matter dated May 18, 2017.

At this point, while Nationwide’s reasons for the EUO being objected to before are irrelevant under the circumstances, we have no other choice, but to reiterate our previous request to provide our client will all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. As you know, our client has an absolute right to request that Nationwide explains the basis for this EUO request, and Nationwide has a corresponding obligation to provide such explanation.

Once provided with same, once an agreement is reach as for a mutually convenient and properly scheduled EUO, and once the issue of our client’s reimbursement is negotiated, our client is ready to proceed”

(defendant’s exhibit W in support of motion).^[FN1]

By a letter dated June 29, 2017, defendant’s counsel responded to plaintiff’s counsel dated June 23, 2017, stating, in relevant part, “Your client has now failed to attend its examination under oath on four separate occasions with respect to the claims at issue” (defendant’s exhibit X in support of motion). Defendant’s counsel reiterated the five reasons for plaintiff’s EUO from its prior letter dated March 23, 2017 (id.).

Denial of Claim Forms

On June 8, 2017, defendant allegedly issued denials of all eight bills at issue in this action, stating, in relevant part:

“MSBP Physical Therapy PC has failed to respond to multiple requests for additional verification and has refused to provide pertinent information that will assist Nationwide in determining the amounts due and payable, pursuant to section 65-1.1(d). Additionally, this failure to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017, duly requested, is a violation of the policy[‘]s contractual duties and a violation of proof of claim conditions that precede coverage . . . , and as a result, all no fault billing for services rendered under this policy are being denied”

(see defendant’s exhibits E-H in support of motion, NF-10 forms Box 33).

On November 2, 2017, plaintiff commenced this action asserting eight causes of action to recover assigned first-party no-fault benefits for the eight bills, with interest, plus a ninth cause of action attorneys’ fees (see defendant’s exhibit A in support of motion, summons and complaint). ^[FN2] On December 7, 2017, defendant allegedly answered the complaint (see defendant’s exhibit B in support of motion, answer and affidavit of service).

DISCUSSION

“On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action”

(Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).

Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff failed to appear for duly scheduled EUOs on four separate occasions, i.e., on November 26, 2016, January 23, 2017, March 21, 2017, and May 29, 2017 (affirmation of [*5]defendant’s counsel ¶¶ 18, 23-70).

“[A]n appearance at an EUO is a condition precedent to the insurer’s liability on the policy” (GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137 [A], 2011 NY Slip Op 50194 [U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).

“To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims”

(Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50760 [U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]).

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2d Dept 2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). A party can establish proof of mailing “through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature” (CIT Bank N.A. v Schiffman, 36 NY3d 550, 556 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006], citing Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

“Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge” (J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, “the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed” (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 830 [1978]).

Here, to establish proof of mailing of the EUO scheduling notices, defendant submitted an affidavit from Allan S. Hollander, a former partner with the firm of Bruno, Gerbino & Soriano LLP (see defendant’s exhibit Z in support of motion, aff of Allan S. Hollander). According to Hollander, tracking confirmations from the United States Postal Service established delivery by certified mail of the EUO scheduling notices dated November 28, 2016, January 25, 2017, and March 29, 2017 (Hollander aff ¶¶ 9, 13,17, 24). However, as plaintiff’s counsel points out, the record does not contain any copies of such tracking confirmations. Thus, defendant failed to prove mailing by proof of actual mailing via certified mail.

Neither did Hollander’s affidavit establish proof of mailing by a standard office practice or procedure. Hollander stated,

“At the time of the subject correspondence, including the EUO scheduling letters and responses to Plaintiff’s correspondence, it was the ordinary course of business at Bruno Gerbino & Soriano to mail such correspondences, via the United States Postal Service by Certified Mail, Return Receipt Requested, and 1st class mail on the same date that they [*6]are created and dated and to the address and facsimile numbers listed thereon.

Specifically, after it was created, the EUO request letters were placed in a United States Postal Service bin, located on the third (3rd) floor of the law office of Bruno, Gerbino & Soriano, and the envelope with the proper Certified Mail, Return Receipt Requested material annexed thereto.

Thereafter, a different individual would affix the proper postage to the envelope to the envelope containing the EUO request letter. This parcel of mail, as well as other mail contained in the above-referenced bin, were taken to the mail room located in the lower lobby of Bruno Gerbino & Soraino’s [sic] building. . . . A member of the United States Postal Service would then take the mail to the U.S. Post Office located in Melville, New York. The empty mail bin would be returned to Bruno Gerbino & Soriano the following business day”

(Hollander aff ¶¶ 24-26).

Although Hollander maintained that the EUO scheduling letters were mailed on the same date that they were created and dated, nothing in office procedures described supported that assertion. Hollander described the procedures, but did not state when they occurred, except to say that the empty mail bin was returned the following business day. Hollander also maintained that the envelopes containing the EUO scheduling letters were addressed to the addresses listed on the scheduling letters, but he did not state that the letters were mailed in windowed envelopes. In the absence of any recitation of as to how the names and addresses on the EUO scheduling letters were checked for accuracy on the unwindowed envelopes, this court agrees with plaintiff’s counsel that, on this record, defendant did not establish that the office practice and procedure followed was designed to ensure proper mailing (Orthotech Express Corp. v MVAIC, 37 Misc 3d 128[A], 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] [“in any event, defendant acknowledged receipt of the claim”]).

Notwithstanding the above, defendant established proof of mailing of the EUO scheduling letters based on the letters in response from plaintiff’s counsel, which acknowledged receipt of the EUO scheduling letters (see Socrates Med. Health, P.C. v Motor Vehicle Acc. Indemnification Corp., 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U], *1 [App Term, 1st Dept 2010] [“in any event, defendant acknowledged receipt of the claim”]). Thus, plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed.

2. Plaintiff’s failure to appear

Although plaintiff did not appear at the EUO scheduled on November 21, 2016, this does not constitute a failure to appear because Hollander’s statement on the record on November 21, 2016 appears to suggest that the parties mutually agreed to reschedule the EUO to a date in January 2017 (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701 [U][App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015).

Defendant established that plaintiff failed to appear for EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, by submitting certified transcripts from the EUOs scheduled and held on those days. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO and that the [*7]EUO transcripts must be signed or notarized by defendant’s SIU investigator (see affirmation of plaintiff’s counsel in support of cross motion and in opposition to motion [Rybak affirmation] ¶¶ 146, 163, 175, 198, 205, 208, 227), the transcripts memorializing the missed appearances, which were certified as true and accurate by stenographers, are sufficient (Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Atlantic Radiology Imaging, P.C. v Metro. Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). ^[FN3] In any event, defendant submitted affidavits from the attorneys who were physically present at the court reporting location in Brooklyn, New York on the dates and scheduled times of the EUOs (NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In opposition, plaintiff argues that defendant failed to establish that it had objective reasons for requesting plaintiff’s EUO (see Rybak affirmation ¶¶ 154, 160-162). However, the Appellate Term, Second Department has repeatedly ruled, “contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment” (21st Century Pharmacy, Inc. v Integon Natl. Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]; see also Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Contrary to plaintiff’s argument (see Rybak affirmation ¶¶ 152, 155), “there is no requirement to establish willfulness” (Goldstar Equip., Inc. v Mercury Cas. Co., 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). “The doctrine of willfulness . . . applies in the context of liability policies, and has no application in the no-fault context” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 561 [1st Dept 2011]).

Plaintiff’s reliance upon Meridian Psychological Services, P.C. v Allstate Insurance Company (51 Misc 3d 128[A], 2016 NY Slip Op 50375[U] [App Term, 2d Dept, 2d, 11th & [*8]13th Jud Dists 2016]) is misplaced. There, the attorney testified at a nonjury trial that, “for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff’s assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30” (id.). Here, unlike Meridian Psychological Services, P.C., the certified EUO transcripts reflect that defendant’s counsel stated on the record that EUO were to begin at 11:00 a.m. (see defendant’s exhibits P, S, and V in support of motion), which was the time reflected on the EUO scheduling letters. Thus, no reasonable inference could be drawn that plaintiff had appeared at the EUOs and left before defendant’s counsel had checked for plaintiff’s appearance. Additionally, for the EUO on January 23, 2017, counsel expressly stated that he had been present since 11:00 a.m. (see defendant’s exhibit P, tr at 7). Neither does plaintiff submit an affidavit from anyone claiming that plaintiff had appeared for any of the EUOs.

Contrary to plaintiff’s argument, the EUO scheduling letters complied with 11 NYCRR 65-3.5 (e). They identically stated, in relevant part, “Nationwide will reimburse you for the reasonable cost of transportation and any loss of earnings of earnings in order to comply with this request, upon submission of receipts and proper documentation” (see defendant’s exhibits M, Q, and U in support of motion).

To the extent that plaintiff argues that the EUO scheduling letters were not in “proper form” because the defendant did not designate a location and time was not “mutually convenient” for plaintiff (see Rybak affirmation ¶ 159), this argument is unavailing. The no-fault regulations do not require an insurer to schedule EUOs according to plaintiff’s convenience. Rather, they provide, “All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant” (11 NYCRR 65-3.5 [e]). On the record presented, plaintiff fails to raise a triable issue of fact as to whether the EUO were scheduled at reasonably convenient times.

The regulations do not place a limit on the number of times an applicant for no-fault benefits can request to reschedule an EUO. Courts have ruled that an EUO that is mutually rescheduled prior to the appointed time would not be deemed to constitute a failure to appear (Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145 [A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Psychological Servs., P.C. v Mercury Cas. Co., 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015]).

However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made (Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc., 64 Misc 3d 131[A], 2019 NY Slip Op 51040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled]).

If plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law (Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages]).

If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was “reasonably convenient” to plaintiff (Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). One lower court has ruled that an insurer may not unreasonably refuse to adjourn the exams “where a good-faith request is made to re-schedule and the adjournment sought is not excessive” (Diagnostic Radiographic Imaging, P.C. v GEICO, 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013]; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 [App Term, 2d Dept 2005]).

Here, defendant’s submissions indicate that the requests of plaintiff’s counsel to reschedule were made days before the EUOs were to occur, even though defendant’s counsel had mailed the scheduling letters well in advance before the scheduled EUOs. Assuming, for the sake of argument, that the requests of plaintiff’s counsel were timely, plaintiff did not raise a triable issue of fact as to whether these requests to reschedule were proper, or that they were made in good faith. Plaintiff requested lengthy adjournments of the EUO for two to three months, ostensibly for the reason that plaintiff is a doctor. If that reason, without more, constituted a good faith basis for an adjournment, then plaintiff could postpone an EUO indefinitely.

As discussed above, when an insurer schedules an EUO, the insurer must inform the applicant seeking no-fault benefits that “the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (11 NYCRR 65-3.5 [e]), which occurred here. Thus, any concern for the loss of earnings would not be a valid reason to reschedule an EUO. Additionally, when requesting to reschedule, plaintiff offered no specific dates which would be convenient for plaintiff. On this motion, plaintiff did not come forward within any additional information to support the contention that such lengthy adjournments would be reasonable under the circumstances. Thus, plaintiff fails to raise a triable issue of fact as to whether its requests for adjournments for two to three months were either proper, or made in good faith.

To the extent plaintiff contends that defendant “failed to provide[ ] that . . . Assignor [sic] is reasonably paid for his or her time and traveling expenses” and “failed to agree to reimburse the provider” (Rybak affirmation ¶¶159, 166), this argument is similarly unavailing. Plaintiff demanded a flat, up-front reimbursement in the amount of “$1,500 per claimant” at the commencement of the EUO (see defendant’s exhibit J in support of motion, letter from plaintiff’s counsel dated November 17, 2016). However, plaintiff’s counsel cites no authority for the proposition that the insurer must reimburse the lost earnings before the EUO takes place, and that the lack of reimbursement prior to the EUO would excuse the person to be examined from having to appear. As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. Additionally, defendant indicated that it wished to inquire about defendant’s ownership and operations, which would be information common to all the claimants (defendant’s exhibit T in support of motion). In this case, the request of plaintiff’s counsel for a flat, up-front fee of $1,500 per claimant was improper (Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [“plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation [*9]expenses as set forth in the regulations”]).

Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff failed to appear for duly scheduled EUOs.

3. Timely Denial of the Claims

“[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim”

(Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).

According to Kathleen McAndrews, a Claims Specialist employed by defendant Nationwide Mutual Insurance Company (Nationwide Mutual) at the claims office in Liverpool, New York, the policy upon which these claims have been presented is a policy underwritten by Nationwide Affinity Insurance Company of America, which is a company of Nationwide Mutual (defendant’s exhibit D in support of motion, McAndrews aff ¶¶ 1-3). McAndrews stated that all New York No-Fault related mail “regardless of where it is addressed is forwarded to P.O. Box 26005, Daphne, AL 36526-1126 for processing” (id. ¶ 10). It is undisputed that the claim forms were sent to “Nationwide Insurance Company” at “P.O. Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, NF-3 forms).

According to Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), AIS is defendant’s authorized agent “for receiving bills and/or correspondence at Post Office Box 26005, Daphne, AL 36526” (see defendant’s exhibits E-H in support of motion, Taylor long affs ¶ 2).^[FN4] He stated,

“Upon receipt of a bill . . . via regular mail at Post Office Box 26005, Daphne, AL 36526, or facsimile, the following process is utilized: Once the mail is delivered, the inbound mailroom team sorts all of the mail. Each envelope is opened by an electronic machine and then distributed to the batching team. The batchers take the contents of each envelope out, assign an identifying ID number to the contents of each envelope, and then the contents are given to the scanners to create an electronic image. The scanner machine affixes the receive date that the document was received onto each page of the document, as it is imaged. The hard copies of the records are filed and maintained in the file room for Thirty (30) days. The documents are imaged to Nationwide Affinity Insurance Company of America on the same day that the scanner machines affixes the receive date. The scanner machine affixes the received date to the document the same [*10]date the document is received by AIS”

(Taylor long affs ¶ 4). Defendant also submitted the business records of AIS (see defendant’s exhibits E-H in support of motion), which Taylor established as admissible business records under CPLR 4518 (see Taylor long affs ¶¶ 12-13). Based on the date stamps that appeared at the top of bills submitted to defendant, and based on the business records, defendant established that it received the bills on the following dates shown in Table 1 below:

Table 1. Date of Receipt of Bills

b. Proof of Mailing of Denials

To establish proof of timely mailing of the denials, defendant again relied upon the affidavits of McAndrews and Taylor, and the business records of AIS.

According to McAndrews, NF-10 forms are prepared by Claims Specialists, who then electronically notify AIS that the denials are ready for printing (McAndrews aff ¶¶ 17-18). The NF-10 forms use the address(es) contained on the billing documents provided by the medical provider and/or the medical provider’s attorney (id.¶ 15).

According to Taylor, it is AIS’s practice to mail all Explanations of Review (EORs) and NF-10 forms to the provider in duplicate on the same day that they are generated (see defendant’s exhibits E-H, Taylor long affs ¶ 6). The date that the EOR and NF-10 form are generated is noted in the lower left hand corner of the document (id.). Once an EOR and an NF-[*11]10 form are printed for a particular claim, the documents are then placed into a mail machine by AIS mailroom personnel (Taylor long affs ¶ 13). A notation in the history of the record verifies that the documents have been printed, which is entered automatically in the bill history when the print job is run and cannot be altered (id.). The mail machine reads a unique bar code number generated by the system to separate the documents, places the printed documents into a clear windowed envelope, and then prints first class postage on the envelope (id.). The letters to be mailed are maintained in a secure area in the AIS mailroom until they are picked up by the United States Postal Service, which picks up the mail each business day (id.). Any document processed by the AIS mailroom after 2:00 PM is mailed the next business day (Taylor long affs ¶ 14).

McAndrews’s and Taylor’s affidavits and AIS business records establish proof of mailing of the denials in accordance with a standard office practice or procedure (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2d Dept 2008]; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), either on the dates listed in Table 2 below, or on the next business day:

Table 2. Dates when denials were issued

“[T]o rebut the presumption [of mailing], there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put [*12]another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient”

(CIT Bank N.A, 36 NY3d at 557).

Contrary to plaintiff’s argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because McAndrews stated that she was the Claims Specialist who issued the denials, and McAndrews also had personal knowledge of the claims procedures and mailing procedures (McAndrews aff ¶¶ 5-7, 22-23).^[FN5] Although plaintiff’s counsel contends that the affidavit of Kelly Weaver, Claims Representative, was insufficient (see Rybak affirmation ¶¶ 317-334), defendant did not submit an affidavit from Kelly Weaver. The affidavit of Linda Arnold was not offered to establish proof of mailing, but rather discussed defendant’s reasons for requesting the EUO of plaintiff (see defendant’s exhibit Y in support of motion).

As plaintiff points out, McAndrews indicated that she had reviewed electronic claim file (McAndrews aff ¶ 23), but defendant did not submit copies or printouts of the electronic claim file. “Evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible” (Bank of New York Mellon v Gordon, 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and internal quotation marks omitted]). Thus, any information that McAndrews could only have obtained from the electronic log would not be admissible. However, in this case, McAndrews had personally issued the denials, and had submitted copies of the denials themselves, which McAndrews established as defendant’s business records (see McAndrews aff ¶ 38). Plaintiff does not point to any information in McAndrews’s affidavit relevant to proof of mailing that could only have been derived from a review of the electronic claims file.

Plaintiff’s reliance upon Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007]) and Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (19 Misc 3d 1139[A] [Dist Ct, Nassau County 2008]) is misplaced. The same court which decided Carle Place Chiropractic and Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent’s Hospital of Richmond:

“It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company, 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist.Ct. Nassau Co. 2008); Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co., 17 Misc 3d 1135 (A), 851 NYS2d 67 (Dist.Ct. Nassau Co. 2007); New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company, 16 [*13]Misc 3d 1104 (A), 841 NYS2d 827 (Dist.Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe “a standard office practice[] or procedure[] designed to ensure that items were properly addressed and mailed (citations omitted).” St. Vincent’s Hospital of Richmond v. Government Employees Insurance Company, 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority”

(Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008]).

Contrary to plaintiff’s assertion, boxes #23 through #33 on each of the denials were not blank, and so plaintiff fails to raise a triable issue of fact as to whether the denials were facially defective. Plaintiff also asserts that defendant “fails to use the proper denial of claim form (statutory version of the NF-10 form) (Rybak affirmation ¶ 186). To the extent that plaintiff is arguing that the denial of claim forms were not issued using the most current version of the NF-10 form, defendant’s use of “outdated” denial of claim forms is not a fatal defect, “as they contain substantially the same, pertinent information as prescribed forms” (Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 71 Misc 3d 140[A], 2021 NY Slip Op 50491[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Contrary to plaintiff’s argument, the denials adequately apprised plaintiff that the bills were denied due to plaintiff’s failure “to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017” (see defendant’s exhibits E-H, NF-10 forms). Notably, “a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs” (JYW Med., P.C. v IDS Prop. Ins. Co., 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

c. Timeliness of Denials

Because all the denials were issued more than 30 days after the bills were received, the issue presented is whether the 30-day period for defendant to pay or otherwise deny plaintiff’s claims was properly tolled for each bill. Plaintiff generally asserts that defendant failed to toll the payment period by timely requesting an EUO (Rybak affirmation ¶ 169).

If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim (11 NYCRR 65—3.5[b]; see New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co., 117 AD3d 1012, 1014 [2d Dept 2014]).

“Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])”

(Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 [2d Dept 2014]).Defendant must demonstrate “that its initial and follow-up requests for verification were timely mailed” (Urban Radiology, P.C. v Clarendon Natl. Ins. Co., 31 Misc 3d 132 [A], 2011 NY Slip Op 50601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “[A] follow-up [*14]request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination” (ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

As plaintiff correctly points out, delay letters which inform plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath, are insufficient to toll the 30-day statutory time period (Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Because defendant requested plaintiff’s EUO prior to its receipt of the bills, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 did not apply to those pre-claim EUO requests (Mapfre Ins. Co. of New York v Manoo, 140 AD3d 468, 469 [1st Dept 2016]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). However, once the bills are received, defendant is required to comply with the follow-up provisions of 11 NYCRR 65.36 (b) (Mapfre Ins. Co. of NY, 140 AD3d at 470).

i. Tolling with respect to Bill #1

For bill #1, an EUO was scheduled on January 23, 2017, after receipt of bill #1 on January 20, 2017, and plaintiff failed to appear. A follow-up EUO scheduling letter was timely sent on January 25, 2017, within 10 days of the missed EUO, for another EUO to take place on March 21, 2017, where plaintiff did not appear as well. Another follow-up scheduling letter was timely sent on March 23, 2017, within 10 days of the missed EUO, for an EUO to take place on May 19, 2107. Thus, plaintiff failed to appear at three EUOs scheduled to take place after the receipt of bill #1.

“Where, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage”

(Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

As defendant did not deny bill #1 until June 8, 2017, which was more than 30 days after plaintiff’s second failure to appear, for the EUO scheduled for March 21, 2017, defendant is not entitled to summary judgment dismissing bill#1, because defendant did not demonstrate that it is not precluded from raising its proffered defense as to bill #1 (see id.).

Therefore, summary judgment dismissing the first cause of action is denied.

iii. Tolling with respect to Bills #2-5

For bills #2-5, a pre-claim EUO scheduling letter was sent on January 25, 2017 before the defendant’s receipt of bills #2-5 on February 6, 2017. The only EUO scheduling letter in the record after receipt of bills #2-5 was a follow-up EUO scheduling letter sent on March 23, 2017, more than 30 days after the receipt of bills #2-5.

On the issue of whether pre-claim EUO requests toll the 30-day determination period to pay or otherwise deny a claim, the Appellate Term, Second Department has issued conflicting decisions on that issue.

In Doctor Goldshteyn Chiropractic, P.C., the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a [*15]claim. There, the defendant mailed a scheduling letter to plaintiff’s assignor on January 4, 2011, and the defendant received the plaintiff’s bill on January 21, 2011 (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] at *1). The Appellate Term ruled, “defendant’s time to pay or deny these claims, which defendant received on January 21, 2011, was tolled” (id.).

In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, “the tolling provisions of the insurance regulations do not apply” to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff’s assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff’s claim on May 30, 2002. The Appellate Term ruled that the defendant’s denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff’s bill) was untimely (id. at 96).

Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term’s prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company, which held that “the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form” (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]). Citing Stephen Fogel Psychological, P.C., lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012]; Prime Psychological Servs., PC v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co., 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).

By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant’s time to pay or deny the plaintiff’s claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which had different facts. In ARCO Medical NY, P.C., the EUO requests were sent within 15 days after the defendant received the plaintiff’s claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected (Doctor Goldshteyn Chiropractic, P.C., 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U]). No appellate cases have followed Doctor Goldshteyn Chiropractic, P.C.

In deciding which case this court should follow, the Appellate Division, Second Department’s decision in Sound Shore Medical Center v New York Central Mutual Fire [*16]Insurance Company (106 AD3d 157 [2d Dept 2013]) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two “requests for verification” to the hospital (id. at 159). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request (id. at 160).

The insurer argued that the hospital’s claim was premature because the hospital did not respond either to the insurer’s initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer’s time to pay the claim had not been tolled.

The Appellate Division agreed with the hospital, and it held that the hospital’s submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, “a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim” (id. at 164 [emphasis supplied]).

Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term’s rulings in Stephen Fogel Psychological, P.C., which was affirmed by the Appellate Division, Second Department (Stephen Fogel Psychological, P.C., 7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division’s ruling in Sound Shore Medical Center, that pre-claim verification requests involving a hospital claim did not toll the 30-day period, and is consistent with the Appellate Term, First Department’s decision in Okslen Acupuncture, P.C. (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U]).

Accordingly, the pre-claim EUO scheduling letter was sent on January 25, 2017 did not toll the 30-day period for defendant to pay or otherwise deny bills #2-5, which ended on March 8, 2017. Although the follow-up EUO scheduling letter was sent within 10 days of missed EUO on March 21, 2017, the follow-up EUO scheduling letter was sent on March 23, 2017, more than 30 days after the receipt of bills #2-5 on February 6, 2017. Thus, defendant failed to demonstrate any tolling with respect to bills #2-5 (see Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129 [A], 2012 NY Slip Op 51268 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

Therefore, summary judgment dismissing the second, third, fourth, and fifth causes of action is denied.

For bills #6-8, a pre-claim EUO scheduling letter was sent on January 25, 2017, for an EUO to take place on March 21, 2017, which was within 30 days of the receipt of bills #6-8 on February 25, 2017. A follow-up EUO scheduling letter was sent on March 23, 2017, for an EUO to take place on May 19, 2017.

As discussed above, defendant’s pre-claim EUO scheduling letter sent on January 25, [*17]2017 did not toll the 30-day period to pay or otherwise deny bills #6-8.

The only verification request in the record which was sent after bills #6-8 were received was the follow-up EUO scheduling letter sent on March 23, 2017. Because this verification request was sent within 30 days of the receipt of bills #6-8, and was sent within10 days after the missed EUO on March 21, 2017, the follow-up EUO scheduling letter sent on March 23, 2017 was timely and tolled defendant’s time to pay or otherwise deny bills #6-8 through the EUO scheduled on May 19, 2017. Because defendant issued the denial of bills #6-8 on June 8, 2017, which was within 30 days of the missed EUO on May 19, 2017, defendant demonstrated that the denial of bills #6-8 was timely.

In this court’s view, Quality Health Supply Corp. v Nationwide Insurance (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U]) does not dictate a different result. Although plaintiff failed to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, it is this court’s view that defendant’s time to pay or otherwise deny bills #6-8 did not run from missed EUO on March 21, 2017, because the January 23, 2017 EUO was scheduled to take place prior to the receipt of bills #6-8.

As discussed above, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to pre-claim EUO requests (Manoo, 140 AD3d at 469; Stephen Fogel Psychological, P.C., 7 Misc 3d 18, 21, affd 35 AD3d 720). Also, as discussed above, pre-claim EUO requests do not toll the 30-day period for an insurer to pay or otherwise deny a claim. Therefore, it would not make sense to consider any pre-claim EUO in determining when the insurer’s toll has ended.

To illustrate, suppose the insurer had scheduled two EUOs of plaintiff to take place on January 23, 2017 and March 21, 2017, prior to receipt of the bills on May 19, 2017, and plaintiff had failed to appear at those pre-claim EUOs. Taking Quality Health Supply Corp. literally, the insurer’s time to pay or otherwise deny the claims would run from the second missed EUO on March 21, 2017, even though the insurer has yet to receive the bills.

Thus, this court interprets Quality Health Supply Corp. to apply to those EUOs that are scheduled to occur after the insurer’s receipt of the bills at issue. In this case, because the only EUOs that were scheduled to occur after the receipt of the bills #6-8 were the EUOs on March 21, 2017 and May 19, 2017, the 30-day period for defendant to pay or otherwise deny bills #6-8 ran from May 19, 2017.

Plaintiff fails to raise a triable issue of fact as to whether the 30-day period was tolled as to bills #6-8.

Therefore, defendant is entitled to summary judgment dismissing the sixth, seventh, and eighth causes of action, based on plaintiff’s failure to appear at EUO scheduled on March 21, 2017 and May 19, 2017.

Although defendant is entitled to judgment dismissing three out of the eight causes of action against it, this court exercises its discretion not to grant any costs to defendant with respect that judgment (see CPLR 8103). As discussed in the next section of this decision, on the issue of costs and disbursements (which was not addressed by either party), plaintiff is the prevailing party in this action. Because much of the elements of defendant’s prima facie burden for the sixth, seven, and eighth causes of action were the same as the elements of the other causes of action on which plaintiff prevailed, this court does not view the sixth, seventh and eighth causes of action being as substantially different for this court to exercise its discretion under CPLR 8103 to award costs to defendant (cf. Gibson v Tsandikos, 23 AD3d 801, 802—03 [*18][3d Dept 2005]).

II. Plaintiff’s Cross Motion (Motion Seq. No. 002)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law”

(Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).

Here, plaintiff established its prima facie entitlement for summary judgment in its favor against defendant as to bills #1-5, based on the denial of claim forms in defendant’s motion papers, which admitted receipt of plaintiff’s bills (see Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The denials also establish that the bills were not paid within 30 days after defendant’s receipt of those bills. As discussed above, the denials themselves were also untimely, and thus were without merit as a matter of law.

Thus, plaintiff is granted summary judgment in its favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15. Plaintiff is also entitled to prejudgment interest on bills #1 through #5 at the rate of 2% per month from November 2, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 205 [2d Dept 2009]).

Plaintiff is also granted summary judgment in its favor on the ninth cause of action against defendant, for attorneys’ fees (11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #1 through #5 ($922.15) plus interest, subject to a maximum of $1,360 (id.; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]).

On the issue of costs and disbursements (which was not addressed by either party), plaintiff prevailed in obtaining summary judgment in its favor on five out of the eight causes of action against defendant, and plaintiff is entitled to recover exactly half of the total amount sought against defendant (exclusive of interest and attorneys’ fees). Thus, plaintiff is the prevailing party entitled to recover costs of the action from defendant, in the amount of $20.00, as a notice of trial has not been filed and the amount of the judgment is not more than $6,000 (CPLR 8101; NY City Civ Ct Act § 1901 [b] [1]). Having been awarded costs, plaintiff is also therefore entitled to recover any disbursements (CPLR 8301; NY City Civ Ct Act § 1908).

The branch of plaintiff’s motion for summary judgment in its favor on the sixth through eighth causes of action against defendant is denied. As discussed above, defendant demonstrated that it timely denied bills #6-8 based on the failure of plaintiff to appear for duly scheduled [*19]EUOs on March 21, 2017 and May 19, 2017.

The branch of plaintiff’s motion to compel defendant to comply with discovery demands is denied as academic.

CONCLUSION

Upon the foregoing cited papers, it is hereby ORDERED that defendant’s motion for summary judgment dismissing the complaint (Motion Seq. No. 001) is GRANTED IN PART TO THE EXTENT that the sixth, seventh, and eighth causes of action are severed and dismissed, and the remainder of defendant’s motion is otherwise denied; and it is further

ORDERED that the branch of plaintiff’s cross motion for summary judgment in its favor against defendant (Motion Seq. No. 002) is GRANTED IN PART TO THE EXTENT that summary judgment is granted in plaintiff’s favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15, with prejudgment interest from the date of November 2, 2017; and judgment is granted in plaintiff’s favor on the ninth cause of action for attorneys’ fees in the amount of 20% of the sum of $922.15 plus the accrued prejudgment interest, as calculated by the Clerk, subject to a maximum of $1,360, with costs and disbursements to plaintiff upon submission to the Clerk upon an appropriate bill of costs, and the remainder of plaintiff’s cross motion is denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that the prior decision and order dated July 12, 2021 is hereby recalled and vacated.

This constitutes the amended decision and order of the court.

Dated: July 13, 2021
New York, New York
ENTER:
________________________________
RICHARD TSAI, J.
Judge of the Civil Court

Footnotes

Footnote 1: Defendant did not submit a copy of the purported letter from plaintiff’s counsel dated May 18, 2017 or the purported letter from defendant’s counsel dated June 1, 2017.

Footnote 2: Plaintiff also commenced a separate action against defendant to recover assigned first-party no-fault benefits concerning eight bills for dates of service during the period of November 8, 2016 through January 5, 2017, MSB Physical Therapy P.C. a/a/o Bright, Sayquan U v Nationwide Ins., Civ Ct, Kings County, Index No. CV-739338-17/KI.

Footnote 3: In opposition to plaintiff’s cross motion, defendant also argues that, in another action involving the parties for different dates of service from September 9, 2016 through November 3, 2016, another judge of this court determined that plaintiff failed to appeared at EUOs (see defendant’s exhibit A in opposition to plaintiff’s cross motion, MSB Physical Therapy, P.C. a/a/o Sayquan U. Bright v Nationwide Ins., Civ Ct, Kings County, May 8, 2019, Walker-Diallo, J., index No. CV-729770-17/KI).

In light of this court’s determination that defendant’s submissions in its moving papers established plaintiff’s failures to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, this court need not reach defendant’s arguments of res judicata and collateral estoppel, which were essentially new arguments raised for the first time in reply in support of summary judgment dismissing this action.

This court notes that the decision in the other action, which ruled that plaintiff had failed to appear at EUOs, appears to concern only the EUOs on November 21, 2016 and January 23, 2017 (see id., at 7-8). The decision did not discuss any proof with respect to the other EUOs scheduled on March 21, 2017 or May 19, 2017.

Defendant also submitted another affidavit from Taylor that is nine paragraphs long and is identical for each bill (see defendant’s exhibits E-H [hereinafter, Taylor short aff]).

CV-740154-19/KI

Attorney for Plaintiff: Oleg Rybak, Esq. The Rybak Firm, PLLC1810 Voorhies Ave., 3rd Floor, Ste. 7, Brooklyn, NY 11235

Attorney for Defendant: Alisa Burns, Esq., McDonnell Adels & Klestzick, PLLC 401 Franklin Ave., 2nd Floor, Garden City, NY 11530

The court’s Decision and Order is based upon consideration of the following papers:

CPLR 2219(a) Recitation

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

In this No-Fault action, Plaintiff medical provider seeks reimbursement for seven bills which cover a period of medical services provided from October 2, 2018 through January 24, 2019. Defendant acknowledges timely receipt of Plaintiff’s seven bills and now moves for summary judgment on its outstanding verification request defense. Plaintiff cross moves for summary judgment pursuant to CPLR 3212 and to dismiss Defendant’s affirmative defenses pursuant to CPLR 3211(b).

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). In order to prevail on a motion based on an outstanding additional verification request defense, the movant must establish that the plaintiff failed to comply with its additional verification requests (Compas Medical, P.C. v. New [*2]York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists. 2013]; TAM Medical Supply Corp. v. Tri State Consumers Ins. Co., 57 Misc 3d 133[A] [App Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]).

As an initial matter, the court finds that Defendant established timely mailing of its verification requests pursuant to 11 NYCRR 65-3.5(b) for each of the seven bills at issue through the affidavit of claims specialist Timothy Dacey. However, the proper denial of the bills remains an issue of fact as Defendant failed to establish its outstanding verification request defense.

Defendant mailed post-EUO requests for additional verification to Plaintiff on December 4, 2018, January 18, 2019, February 7, 2019 and March 5, 2019 wherein it requested the following documents:

1. Burke’s federal and state tax returns for 2017 to the present, including any W-2s, 1099’s, and quarterly payroll tax returns.

2. Burke’s bank records for the period December 1, 2017 to the present, including any statements, deposits slips and cancelled checks.

3. Burke’s general ledgers for the period December 1, 2017 to the present, or such other documents as reflect its financial condition, payments made and payments received.

4. Any documents relating to or reflecting any agreement, contract, lease, deal, arrangement or understanding with any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

5. Any documents relating to or reflecting any payment to or received from any person or entity providing management, billing, collection, consulting, or administrative services to Burke during the period December 1, 2017 to the present, including Expert Billing Solutions and Streamline Services.

6. All contracts, leases, subleases and agreements concerning Burke’s operations at 941 Burke Avenue, Bronx, New York, including the written agreement with Seo Han Medical, P.C.

7. All contracts, leases, subleases and agreements concerning Burke’s operations at 764 Elmont Road, Elmont, New York, including the written agreement with Starmed Group, Inc.

8. All contracts, leases, subleases and agreements concerning Burke’s operations at 2625 Atlantic Avenue, Brooklyn, New York, including the written agreement with 2625 Group, Inc.

9. All contracts, leases, subleases and agreements concerning Burke’s operations at 152-180 Rockaway Boulevard, Jamaica, New York.

10. All contracts, leases, subleases and agreements concerning Burke’s operations at 80-12 Jamaica Avenue, Woodhaven, New York, including the written with 19413 Northern Boulevard, Inc.

11. All contracts, leases, subleases and agreements concerning Burke’s operations 424 East 147th Street, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

12. All contracts, leases, subleases and agreements concerning Burke’s operations at 5037 Broadway, New York, New York, including the written agreement with 19413 Northern Boulevard, Inc.

13. All contracts, leases, subleases and agreements concerning Burke’s operations at 2510 Westchester Avenue, Bronx, New York, including the written agreement with 19413 Northern Boulevard, Inc.

14. All contracts, leases, subleases and agreements concerning Burke’s operations 90-04 Merrick Road, Merrick, New York, including any written agreement with Life Health Care Medical, P.C.

15. All contracts, leases, subleases and agreements concerning Burke’s operations at 2025 Davidson Avenue, Bronx, New York, including any written agreement with Seasoned Chiropractic P.C.

16. All contracts, leases, subleases and agreements concerning Burke’s operations at 550 Remsen Avenue, Brooklyn, New York.

17. All contracts, leases, subleases and agreements concerning Burke’s operations at 1122A Coney Island Avenue, Brooklyn, New York, including the written agreement with Marina Gadaborshev/MG Chiropractic, P.C.^[FN1]

Defendant states that it properly denied all seven bills due to Plaintiff’s failure to provide the requested documentation within 120 days or “written proof providing a reasonable justification for the failure to comply” (Defendant 1, ¶17). However, in the following paragraph, Defendant acknowledges receipt of Plaintiff’s written responses, by letters dated February 26, 2019 and April 16, 2019. Defendant attaches these letters and two of State Farms’ response letters dated March 11, 2019 and April 24, 2019 as an exhibit to its motion papers (Def. 1, exh. 4).

In Plaintiff’s four-page letter dated February 26, 2019, Plaintiff objects to Defendant’s verification request on both procedural and substantive grounds, citing case law and the No-Fault statutes in support of its arguments. The letter further demonstrates that Plaintiff provided similar written objections in previous correspondences along with specific responses to each of the items on Defendant’s list:

“State Farm has now received from Burke Physical all documents in its possession that are responsive to State Farm’s verification requests. As noted in previous correspondences with regards to State Farm’s unduly burdensome, improper and illegal request for additional documents/information listed in paragraphs 1-17 on page 4-5 of your Letter, it should be stated again for the record that the carrier has already been provided with the items in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 during the EUO. Meanwhile, the items in paragraphs 9, 14, 15 and 16 cannot be provided due to their verbal/oral nature. As for items in paragraphs 1, 2 and 3, they are improper to be requested by the carrier in the first place for the reasons supra.”

In cases where a medical provider sent a similar response to a verification request, courts have denied an insurer summary judgment based on an outstanding verification request defense. In Mount Sinai Hosp. v. Auto One Ins. Co., the Second Department found that the defendant insurer failed to demonstrate its prima facie entitlement to summary judgment as the record [*3]revealed that the medical provider hospital replied to the verification requests with respect to the records in its possession that it was authorized to release. However, the court did find triable issues of fact regarding the “propriety” of the defendant’s verification requests and whether the documents requested existed or were in the possession of the hospital (Mount Sinai Hosp. v. Auto One Ins. Co., 121 AD3d 869 [2d Dept. 2014]; Pro-Align Chiropractic, P.C. v. Travelers Property Casualty Ins. Co., 58 Misc 3d 857 [Dist Ct, Suffolk County 2017]).

Further, the No-Fault rules do not require a medical provider to provide each and every document requested by the insurer. New York Insurance Law Section 65-3.5(o) states that the applicant must provide “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” (11 NYCRR 65-3.5[o] [emphasis added]). Just as Defendant asserts its right to request all information necessary to verify a claim, Plaintiff’s right to object to such requests is codified in the no fault statute as noted in each of Defendant’s verification request letters:

“Please be advised that pursuant to 11 NYCRR 65-3.5(o), State Farm may deny the claim if Burke Physical Therapy does not provide within 120 calendar days from the date of this initial verification request all of the documents identified above under Burke Physical Therapy control or possession or written proof providing reasonable justification for the failure to comply” [emphasis added].

This principle is affirmed by the caselaw Defendant directly quotes in its opposition affirmation: “If a plaintiff deems a verification request to be defective and or unreasonable, it is incumbent on that plaintiff to convey that information to the defendant and to state the reasons thereof, thereby giving the defendant the opportunity to respond accordingly” (Canarsie Chiropractic P.C. a/a/o Day v. Adirondack Mut. Auto. Ins., 27 Misc 3d 1228[A] [Civ. Ct. Kings Cty., 2010]).

Here, Plaintiff objected to Defendant’s requests with strong and detailed arguments in its February 26, 2019 and April 16, 2019 letters. In its response letters dated March 11, 2019 and April 24, 2019, Defendant argued that its requests were proper and repeated its demand for all seventeen items listed in its original request, including those items which Plaintiff stated did not exist. In the instant motion, Defendant disregards these correspondences and either denies Plaintiff’s response altogether or characterizes Plaintiff’s response as a “generic refusal to provide any of the requested verification” (Def. 3, ¶16). Defendant also fails to properly address the arguments and issues raised in Plaintiff’s objection letters. Rather, Defendant argues that Plaintiff is barred from objecting to the propriety of the requests because of its failure to respond. This argument is without merit under the circumstances and wholly inconsistent with the documents provided in Defendant’s motion papers. Further, the objection letters raise an issue of fact regarding Plaintiff’s compliance with 11 NYCRR 65-3.5(o). Based on the foregoing, Defendant failed to meet its summary judgment burden on its outstanding verification defense.

The timely mailing of Plaintiff’s bills is established as Defendant acknowledged timely receipt of those bills. However, in its cross motion, Plaintiff failed to establish its full compliance with Defendant’s verification requests or that the requests themselves were improper. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In support of its cross-motion, Plaintiff attaches the December 8, 2020 affidavit of John Nasrinpay, wherein he avers the following: “I personally responded and mailed on 01/18/2019, 03/07/2019, [*4]04/05/2019 and 05/07/2019 the verification response in issue in this case to the address designated by defendant on the verification requests, to the extent that such response was proper and in my possession.” The affiant provides no further details as to which documents constituted the “verification response in issue” that were “proper” and in his “possession.” Further, while the affidavit refers to the responses provided, there is no admissible documentation to that effect as Plaintiff fails to attach copies of the allegedly mailed responses to its motion. The arguments within Plaintiff’s motion objecting to the propriety of Defendant’s verification requests are equally vague and conclusory. Accordingly, Plaintiff’s request for summary judgment is denied.

Likewise, Plaintiff failed to provide the court with any legal or factual grounds to dismiss Defendant’s affirmative defenses. To prevail on a motion to dismiss an affirmative defense pursuant to CPLR 3211(b), ” the plaintiff bears the burden of demonstrating that the affirmative defense is ‘without merit as a matter of law'” (Bank of New York v. Penalver, 125 AD3d 796, 797 [2d Dept. 2015] quoting Vita v. New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept. 2006]). Plaintiff cites no legal authority and provides no substantive or even intelligible argument to support dismissal of Defendant’s affirmative defenses. The bulk of Plaintiff’s arguments against Defendant’s verification requests are conclusory, vague and repetitive. They are also intertwined with Plaintiff’s arguments against Defendant’s discovery demands, a matter which Plaintiff improperly raises in its motion. Further, as both Plaintiff’s arguments and supporting papers fail to establish, in evidentiary form, Plaintiff’s allegations of having mailed verification in compliance with Defendant’s request, this court will not hear Plaintiff’s objections regarding the substance of those requests (see Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept. 1999]; Compas Medical, P.C. v. New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A]).

Further, Defendant’s fraudulent incorporation defense is a non-precludable affirmative defense (State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]; 11 NYCRR 65-3.16[a]). An insurance carrier may, at any time, assert a non-precludable “Mallela defense” and deny payment based on the medical provider’s fraudulent incorporation (Matter of Acuhealth Acupuncture, P.C. v. Country-Wide Ins. Co., 149 AD3d 828 [2d Dept. 2017]; Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42, 44, [App. Term, 2d, 11th & 13th Jud. Dists 2012]). “Inasmuch as the defense of ‘fraudulent incorporation’ is not subject to the preclusion rule, the defendant may raise this defense in its answer, even if not asserted in the claim denial” (Island Chiropractic Testing, P.C. v Nationwide Ins. Co., 35 Misc 3d 1235[A] [Dist Ct, Suffolk County 2012]). Accordingly, Plaintiff failed to establish that dismissal of any of Defendant’s affirmative defenses, including its outstanding verification defense, is warranted under CPLR 3211 (b).

Finally, in its opposition, Plaintiff objects to the discovery demands served with Defendant’s Answer. However, as noted above, the matter is not properly before the court as Plaintiff does not move for relief based on the discovery demands. Plaintiff states, “Defendant has failed to demonstrate its entitlement to the discovery demanded in these matters. In light of that fact, Defendant cannot possibly be entitled to an Order compelling responses to improper discovery demands.” Yet, Defendant has not moved to compel discovery demands.

Based on the foregoing, Defendant’s motion for summary judgment is granted solely to the extent that it established timely mailing of its verification requests. Plaintiff’s cross-motion for summary judgment is granted to the extent that timely receipt of the bills has also been [*5]established. The remainder of Plaintiff’s cross-motion is denied. Defendant’s outstanding verification defense remains an issue of fact for trial.

This constitutes the decision and order of this court.

ENTER.

June 30, 2021

Brooklyn, NY

Hon. Consuelo Mallafre Melendez

Judge, Civil Court

Footnotes

Footnote 1:In its letter dated February 26, 2019, intra, Plaintiff claims that items 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 were provided during the EUO and items 9, 14, 15 and 16 could not be provided due to their verbal nature. Plaintiff objected to the propriety of Defendant’s request for items 1, 2 and 3.

Index No. CV-716670-16/KI

Attorney for Plaintiff:
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Avenue, 3rd Floor, Suite 7
Brooklyn, New York 11235

This action seeks to recover first-party no-fault benefits, assigned by Souleyman Diallo, for services rendered. Plaintiff moves to amend to add a new party, Knightbrook Insurance Company, to the action pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(b), and to remove Grange Mutual Casualty Ins. Co. as a defendant under claim number 14982012. Plaintiff claims that in reviewing the Summons and Complaint it noticed there was a clerical error, in that the name of the defendant was not properly printed. Plaintiff thus seeks leave to re-serve the Amended Summons and Complaint upon Knightbrook Ins. Co. No opposition papers to this motion were submitted by the defendant, Grange Mutual Casualty Ins. Co.

After oral argument, the Decision/Order on plaintiff’s Motion to Amend is as follows:

The accident giving rise to this case occurred on May 5, 2012. Claims were allegedly submitted [*2]to the carrier on December 20, 2013. According to the court files and the plaintiff’s motion, no answer was filed in response to the Summons and Complaint dated May 6, 2016, and filed May 9, 2016. The six-year statute of limitations applies to first-party no-fault claims which begins to run from the date the cause of action accrues, not from the date of the insurer’s belated denial of claim form (DJS Med. Supplies, Inc. v. Clarendon Natl Ins. Co., 32 Misc 3d 129(a) (App Term 2d, 11th & 13th Judicial Dists, 2011)). An amendment to add a party at this juncture falls clearly outside of the statute of limitations.

Plaintiff’s counsel argues Knightbrook Ins. Co. will not suffer any prejudice should the court grant leave to amend. It will merely be called to defend against current claim amounts that remain unpaid and are overdue (Plaintiff Affirmation, Paragraph 10). Plaintiff’s counsel maintains that failure to permit an amendment of the Summons and Complaint would result in additional time, effort, and costs, to all parties, as well as unnecessary waste of judicial resources, as plaintiff would be forced to discontinue the instant action and commence a second lawsuit (id.). Plaintiff’s counsel further asserts, in the discontinuance of this action, there would be no prejudice to Grange Mutual Ins. Co., because no orders have been issued by the Court nor have the parties engaged in substantial litigation (Plaintiff Affirmation, Paragraphs 11, 16). Finally, plaintiff claims this application is not an attempt to circumvent an adverse ruling or otherwise derive underhanded advantage through discontinuing the action against Grange (Plaintiff Affirmation, Paragraph 16).

Relief pursuant to CPLR 305 (c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed, in the original process, and that the correct defendant would not be prejudiced by the granting of the amendment (Nossov v. Hunter Mountain, 185 AD3d 948-949 (2nd Dept, 2020). Though “CPLR 305 (c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served” (Tokhmakhova v. H.S. Bros. II Corp., 132 AD3d 662, 662 (2nd Dept. 2015); Smith v. Garo Enters., Inc., 60 AD3d 751,752 (2d Dept. 2009); see also Nossov v Hunter Mountain, 185 AD3d 948, 949 (2nd Dept. 2020). Under CPLR 305 (c), “an amendment to correct a misnomer will be permitted ‘if the court has acquired jurisdiction over the intended but misnamed defendant provided that … the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect … [and] would not be prejudiced’ by allowing the amendment” (Honeyman v. Curiosity Works, Inc., 120 A.D3d 1302, (2d Dept. 2014) [internal citations omitted]).

CPLR 2001 allows a party to correct mistakes, omissions, defects, or irregularities, at any stage of an action. Courts freely grant leave to amend a pleading under CPLR 3025 (b), unless the opposing party can show that the delay causes prejudice or surprise (O’Halloran v. Metropolitan Transp. Auth., 154 AD3d 83, 86 (1st Dept 2017)). If the statute of limitations has expired, a plaintiff may add a claim if it relates back to the incident alleged in the complaint (id.). However, “allowing the relation back of amendments adding new defendants implicates more seriously due process policy concerns than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court” (Buran v. Coupal, 87 NY2d 173, 178 [1995]).

Here, there is no indication Grange was served with the original summons and complaint or that Knightbrook Ins. Co. was served with the current motion or any other documents related to this incident. To bring a claim for no-fault benefits, statutory prerequisites must be met. The [*3]plaintiff must show claim forms were timely and properly sent to the carrier and that those claims were not paid or properly denied within the statutory period. In the proposed amended pleading, plaintiff merely switches the names of the party and retains the same claim number with the same allegations of timely mailing, albeit to a different address. Plaintiff fails to demonstrate notice to, nor that the statutory prerequisites have been met with the new party. By now moving to add a new party, the plaintiff is requesting this court extend the statute of limitations and resurrect a claim that is otherwise time barred.

According to CPLR 203 (f), “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” The relation-back doctrine “enables a plaintiff to correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired,” and gives courts the “sound judicial discretion to identify cases that justify relaxation of limitations strictures … to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff’s adversary” (Buran v. Coupal, 87 NY2d 173, 177-178, [citation and internal quotation marks omitted]; see O’Halloran v. Metropolitan Transp. Auth., 154 AD3d 83, 86); Catnap, LLC v. Cammeby’s Mgmt. Co., LLC, 170 AD3d 1103, 1106 (2019)).

A court could entertain the amendment of the pleading if plaintiff shows that (1) the claims arise out of the same occurrence, (2) the proposed new defendant is “united in interest” with the original defendant and, due to this relationship, the proposed new party is chargeable with notice of the of the action such that there is no prejudice, and (3) the proposed new defendant, Knightbrook Ins. Co., “knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.” (id. [internal quotation marks and citation omitted]; see CPLR 203 [c]).

In arguing there would be no prejudice to Grange Mutual, the plaintiff misdirects the focus of the prejudice analysis. The dictates of due process require the court to consider prejudice to the new defendant, Knightbrook, where a belated amendment is requested. Additionally, where, as here, the statute of limitations has expired, plaintiff has the burden of showing that the relation-back doctrine applies (Garcia v. New York-Presbyt. Hosp., 114 AD3d 615, 615 [1st Dept 2014]). Plaintiff has not offered any arguments to satisfy this three-part test for the application of the relation-back doctrine. Finally, “[t]he moving party … has the added burden of establishing that diligent efforts were made to ascertain the unknown party’s identity prior to the expiration of the statute of limitations” (Bumpus v. New York City Tr. Auth., 66 AD3d 26, 35 [2d Dept 2009]). In this case, plaintiff has not provided the court with a factual basis to engage in an analysis and has failed to meet its burden. Given these failures, the court does not reach the question of prejudice to the new party.

Accordingly, the Motion to Amend is denied. This constitutes the decision and order of the court.

CV-723175-16/KI

Plaintiff’s Firm
Richard Rozhik
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
Telephone: (718) 975 – 2035
Facsimile: (718) 975 – 2037
rrozhik@rybakfirm.com

Defendant’s Firm:
Christin M. Brown
Attorney at Law
Wilson Elser Moskowitz Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, NY 10604 914.872.7158 (Direct)
914.323.7000 (Main)
914.323.7001 (Fax)
christin.brown@wilsonelser.com

Recitation, as required by Civil Procedure Law and Rules (CPLR) §2219(a), of the papers considered on the review of these Motions for Summary Judgment and Cross-Motions for Summary Judgment.

Papers submitted for each above listed case and corresponding Index number: Numbered: ^[FN1]

1. CV-723175-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Patrick Howard Notice of Motion, Affirmation and Annexed Exhibits BCYXMB

Defendant’s Cross-Motion and Annexed Exhibits 3ETAHL

2. CV-723178-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits VEZUPK

Defendant’s Cross-Motion and Annexed Exhibits 9L2X9X

3. CV-723183-16/KI

Plaintiff Elmont Rehab, P.T., P.C., a/a/o Karen Cutler Notice of Motion, Affirmation and Annexed Exhibits SMQGV7

Defendant’s Cross-Motion and Annexed Exhibits X9J24W

4. CV-723185-16/KI

Plaintiff NYS Acupuncture, P.C., a/a/o Karen Cutler Notice of Motion, Affirmation and Annexed Exhibits HLHQKX

Defendant’s Cross-Motion and Annexed Exhibits HLCISL

5. CV-723177-16/KI

Plaintiff Elmont Rehab, P.T., P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits EG9PNE

Defendant’s Cross-Motion and Annexed Exhibits JMEEDJ

6. CV-723180-16/KI

Plaintiff Uzma Nasir Physician, P.C., a/a/o Miguel Quinn Notice of Motion, Affirmation and Annexed Exhibits S9SATO

Defendant’s Cross-Motion and Annexed Exhibits 4MT2ST

7. CV-707439-17/KI

Plaintiff Solution Bridge, Inc., a/a/o Jennifer Schaum Notice of Motion, Affirmation and Annexed Exhibits L1TAWA

Defendant’s Cross-Motion and Annexed Exhibits 3C3RI6

8. CV-704429-18/KI

Plaintiff Metro Pain Specialist, P.C., a/a/o Eileen Kilbane Notice of Motion, Affirmation and Annexed Exhibits SV5FHT

Defendant’s Cross-Motion and Annexed Exhibits GCMFWC

9. CV-706460-19/KI

Plaintiff Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., a/a/o Maglorie Bueno Notice of Motion, Affirmation and Annexed Exhibits P59UM6

Defendant’s Cross-Motion and Annexed Exhibits FSJMGT

10. CV-707274-19/KI

Plaintiff Right Aid Medical Supply Corp., a/a/o Enrique Alexander Notice of Motion, Affirmation and Annexed Exhibits TB0A9I

Defendant’s Cross-Motion and Annexed Exhibits LQADFZ

Upon the foregoing cited papers, the Decision and Order on these motions is as follows:

The New York State Insurance Fund (NYSIF/the Fund/Defendant), appearing by its attorney in these breach of contract no-fault proceedings, moves this Court pursuant to CPLR §§2221 and 5015(a) for an Order (a) vacating each default judgment entered against the Defendant in each of the above referenced matters; (b) dismissing each Complaint because this Court lacks subject matter jurisdiction; (c) dismissing each Complaint because Plaintiffs failed to state a claim upon which relief can be granted; (d) imposing sanctions against Plaintiffs’ counsel pursuant to CPLR §8303 and 22 NYCRR §130-1.1(c) for commencing frivolous actions; and (e) for any further relief that seems just, proper and equitable to the Court. Plaintiffs, appearing by their attorney, oppose Defendant’s motions to dismiss the complaints, claiming that this Court does have subject matter jurisdiction over Defendant. Plaintiffs also oppose vacatur of the default judgements on the grounds that Defendant failed to raise a reasonable excuse for defaulting, and they further oppose Defendant’s motions on the grounds that they are fatally defective pursuant to CPLR §2214(c) because Defendant failed to serve the motion with exhibits referenced in the attorney’s affirmations. Finally, Plaintiffs assert that their filings of the summons, complaints and motions for summary judgment were made in good faith and that this Court should not impose sanctions.

For the reasons discussed below, Defendant’s Motions to Vacate the Default Judgment and to Dismiss each of the above-captioned ten (10) actions are GRANTED WITHOUT PREJUDICE in case any of the Plaintiffs decide to seek relief in the Court of Claims. Defendant’s application for sanctions against Plaintiffs’ counsel is DENIED. Finally, Plaintiffs’ [*2]and their counsel are enjoined from commencing any future similar actions or proceedings seeking relief from this Defendant in Kings County Civil Court without a determination from the Appellate Term, that it is appropriate for Plaintiffs to do so.^[FN2]

Procedural History for Index Nos. CV-723175-16/KI; CV-723178-16/KI; CV-723183-16/KI; CV-723185-16/KI

#1 — Plaintiff NYS Acupuncture, P.C., (CV-723175-16/KI)

Plaintiff claims that Assignor Patrick Howard was allegedly involved in a motor vehicle accident on or about February 1, 2011, that Defendant was timely notified of Assignor Howard’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN3] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Howard, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN4] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to that the Civil Court “lacked subject matter jurisdiction to the extent that plaintiff is seeking monetary relief against the STATE INSURANCE FUND, a New York State agency [and that] [r]elief must be sought in the Court of Claims.”^[FN5] On or about October 11, 2016, Kings County Chief Clerk entered a default judgment against Defendant.^[FN6]

#2 — Plaintiff NYS Acupuncture, P.C., (CV-723178-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 12, 2012, that Defendant was timely notified of Quinn’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN7] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN8] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to that Plaintiff failed to properly serve Defendant, and the Civil Court lacked subject matter jurisdiction as the relief sought against NYSIF, a state agency, must be sought in the Court of Claims.^[FN9] On or about October 11, 2016 a default judgment was entered against the Defendant.^[FN10]

#3 — Plaintiff Elmont Rehab, P.T., P.C. (CV-723183-16/KI)

Plaintiff claims that Assignor Karen Cutler was allegedly in a motor vehicle accident occurring on or about January 26, 2011, that Defendant was timely notified of Cutler’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN11] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Cutler, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN12] In its Answer, Defendant listed affirmative defenses, including but not limited to that Plaintiff failed to properly serve the Defendant and that the Civil Court lacked subject matter jurisdiction as the relief sought against NYSIF, a state agency, must be sought in the Court of Claims.^[FN13] On or about October 11, 2016 a default judgment was entered against the Defendant.^[FN14]

[*3]#4 — Plaintiff NYS Acupuncture, P.C., (CV-723185-16/KI)

Plaintiff claims that Assignor Karen Cutler was allegedly in a motor vehicle accident occurring on or about January 26, 2011, that Defendant was timely notified of Cutler’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN15] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Cutler, as well as statutory interest and attorney’s fees, and served it on Defendant on or about July 6, 2016.^[FN16] On or about October 3, 2016, Defendant served and filed its answer which listed affirmative defenses, including but not limited to improper service of the summons and complaint in violation of CPLR § 307, and that the Civil Court lacked subject matter jurisdiction because Defendant was a state agency and, as such, monetary relief had to be pursued in the Court of Claims.^[FN17] On or about October 11, 2016, a default judgment was entered against the Defendant.^[FN18]

On or about March 15, 2019, the Plaintiffs on the four cases summarized above filed and served motions seeking summary judgment pursuant to CPLR §§3211(c) or 3212(a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR §3211(b). Defendant subsequently filed notices of cross-motion in each case for summary judgment seeking an order granting its cross-motions for summary judgment and dismissing the cases on multiple grounds, including but not limited to that the Civil Court lacked subject matter jurisdiction. Defendant also sought sanctions on Plaintiffs’ counsel, pursuant to CPLR §8303 and 22 NYCRR §130-1.1(c) for commencing frivolous actions.

After a series of adjournments, on January 5, 2021, these four cases (index numbers CV-723175-16, CV-723178-16, CV-723183-16 and CV-723185-16) were called and argued from the Parts 40 and 41 Special 1 calendars in Kings County Civil Court. The same counsel represented Plaintiffs NYS Acupuncture, P.C. and Elmont Rehab, P.T., P.C. and Defendant had the same counsel in all four cases. This Court denied Plaintiffs’ motions for summary judgment. This Court further stated that it was inclined to grant Defendant’s cross-motion to dismiss the actions on the grounds that the Court lacked subject matter jurisdiction, and that it would be drafting its Decision and Order on the summary judgment and sanctions issues.

On or about January 25, 2021, via email to chambers, Plaintiffs’ counsel suggested instead that one of the four cases be decided on the merits instead of being dismissed for lack of subject matter jurisdiction, and the remaining three cases be stayed pending an appeal to and a decision from the Appellate Term. Defendant’s counsel objected to that, reiterating that the cases had to be dismissed because this Court did not have jurisdiction. Further, Defendant again [*4]urged that the Court impose sanctions against Plaintiffs’ counsel for continuing to commence actions against Defendant in the Civil Court despite Plaintiffs’ counsel’s knowledge of prior decisions holding consistently that only the Court of Claims had jurisdiction of the type of cases being litigated before this Court.

While drafting its Decision and Order, this Court found that the New York State Unified Court System Universal Case Management System (UCMS) listed all four cases as having had default judgments entered in favor of the Plaintiffs on October 11, 2016. As a result, on April 6, 2021, during a status conference on the four cases, this Court informed counsel that in the course of its review of UCMS and the Unified Court System public online case-tracking e-Courts information service, it not only found that the four instant cases had default judgments filed, but this Court had found additional no-fault insurance cases filed against Defendant by Plaintiffs’ counsel.

This Court further informed counsel that it was still drafting a Decision and Order dismissing the four cases for lack of subject matter jurisdiction. In addition, this Court directed Defendant’s counsel to review its records to identify any other no-fault insurance cases filed by Plaintiffs’ counsel in Kings County Civil Court that resulted in default judgments issued against it. The Court established a motion and conference schedule for both sides to file the appropriate motions. In addition, this Court urged counsel to review all their cases that had been filed in Kings County Civil Court involving this Defendant where default judgments had not been filed and to seek possible resolutions on those cases for review and approval by this Court.

On April 19, 2021, Defendant’s counsel, after apparently identifying six additional no-fault cases in which default judgments had been issued against it stemming from filings in Kings County Civil by Plaintiffs’ counsel, filed Motions to Dismiss in the ten (10) instant captioned matters pursuant to the motion schedule maintaining that the Civil Court does not have jurisdiction to hear said matters and moved this Court to vacate the default judgments, dismiss the summons and complaint and to impose sanctions on Plaintiffs’ Counsel. On or about April 22, 2021, Plaintiffs’ Counsel opposed said Motions to Dismiss asserting that Defendant’s motions were defective and its defects prejudicial to Plaintiffs given Defendant’s failure to annex all the exhibits it referenced in its motion, which Plaintiffs assert is a fatal defect warranting denial of Defendant’s motion. Plaintiffs also assert that Defendant lacks a reasonable excuse to support vacating the default judgements entered against it and the Court should not vacate the same. Plaintiffs’ counsel did not seek to revive the Motions for Summary Judgment in these submissions for the first four cases heard by this Court, Index Numbers CV-723175-16, CV-723178-16, CV-723183-16 and CV-723185-16.

The six additional cases identified by Defendant’s counsel and subsequently the subject of the moving and opposing papers filed by the parties on or about April 19, 2021 and April 22, 2021, respectively, and addressed in this Decision and Order, along with the first four captioned in this Decision and Order,^[FN19] are summarized procedurally below:

[*5]Procedural History regarding Index Nos. CV-723177-16/KI; CV-723180-16/KI; CV-707439-17/KI; CV-704429-18/KI; CV-706460-19/KI; CV-707274-19/KI

#5 — Plaintiff Elmont Rehab, P.T., P.C. (CV-723177-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 12, 2011, that Defendant was timely notified of Quinn’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN20] On or about June 27, 2016, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, as well as statutory interest and attorney’s fees.^[FN21] Defendant answered the complaint posing affirmative defenses,^[FN22] but on October 11, 2016 a default judgment was entered against the Defendant.^[FN23]

#6 — Plaintiff Uzma Nasir Physician, P.C. (CV-723180-16/KI)

Plaintiff claims that Assignor Miguel Quinn was allegedly in a motor vehicle accident occurring on or about February 1, 2011, that Defendant was timely notified of Quinn’s accident [*6]and injuries and was subsequently assigned a claim number by Defendant.^[FN24] As a result of Defendant’s alleged failure to either timely pay or deny payment for services rendered to Assignor Quinn, Plaintiff filed a Summons and Complaint in Kings Civil Court on or about July 6, 2016,^[FN25] seeking payment, statutory interest and attorney’s fees from Defendant.^[FN26] On October 11, 2016 a default judgement was entered against Defendant.^[FN27]

#7 — Plaintiff Solution Bridge, Inc. (CV-707439-17/KI)

Plaintiff claims that Assignor Jennifer Schaum was allegedly in a motor vehicle accident occurring on or about January 7, 2012, that Defendant was timely notified of Schaum’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN28] On or about March 8, 2017, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Schaum, as well as statutory interest and attorney’s fees.^[FN29] In its Answer, Defendant listed affirmative defenses.^[FN30] On or about September 8, 2017, Plaintiff rejected Defendant’s Answer as untimely.^[FN31] On or about September 8, 2017 a default judgement was entered against Defendant.^[FN32] The April 19, 2021 Affidavit of Rosanne [*7]Nichols, an Associate Attorney for the Defendant, listed affirmative defenses, including that Plaintiff failed to properly serve the Defendant and filed its action in the wrong court, service against the Defendant was improper, and that since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN33]

#8 — Plaintiff Metro Pain Specialist, P.C. (CV-704429-18/KI)

Plaintiff claims that Assignor Eileen Kilbane was allegedly in a motor vehicle accident occurring on or about July 7, 2016, that Defendant was timely notified of Kilbane’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN34] On or about January 30, 2018, Plaintiff filed a Summons and Complaint with the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Kilbane, as well as statutory interest and attorney’s fees.^[FN35] On or about November 14, 2018 a default judgment was entered against Defendant.^[FN36] The April 19, 2021 Affidavit of Rosanne Nichols, an Associate Attorney for the Defendant, listed affirmative defenses, including that Plaintiff failed to properly serve the Defendant, and that since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN37]

#9 — Plaintiff Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, MD (CV-706460-19/KI)

Plaintiff claims that Assignor Maglorie Bueno was allegedly in a motor vehicle accident occurring on or about September 11, 2012, that Defendant was timely notified of Bueno’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN38] On or about February 13, 2019, Plaintiff filed a Summons and Complaint in the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Bueno, as well as statutory [*8]interest and attorney’s fees.^[FN39] On or about April 13, 2019, Defendant listed affirmative defenses, including but not limited to that Plaintiff filed its action in the wrong court since Defendant, a state agency, could only be sued in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN40] On or about May 29, 2019 Plaintiff rejected Defendant’s Answer as untimely.^[FN41] On or about June 26, 2019 a default judgment was entered against Defendant.^[FN42]

#10 — Plaintiff Right Aid Medical Supply Corp. (CV-707274-19/KI)

Plaintiff claims that Assignor Enrique Alexander was allegedly in a motor vehicle accident occurring on or about January 19, 2016, that Defendant was timely notified of Alexander’s accident and injuries and was subsequently assigned a claim number by Defendant.^[FN43] On or about February 20, 2019, Plaintiff filed a Summons and Complaint in the Kings County Civil Court seeking judgment against Defendant for breach of contract based on its alleged failure to either timely pay or deny payment for services rendered to Assignor Alexander, as well as statutory interest and attorney’s fees.^[FN44] In its Answer, Defendant listed affirmative defenses, including that service against the Defendant was improper and Plaintiff filed its action in the wrong court, i.e., since Defendant is a state agency, relief could only be sought in the New York State Court of Claims and thus the Civil Court lacked subject matter jurisdiction.^[FN45] On or about June 26, 2019 a default judgment was entered against Defendant.

Issues Presented:

The threshold and dispositive issue is whether this Court has subject matter jurisdiction to entertain the Plaintiffs’ actions against this Defendant. A secondary issue is whether Defendant’s request for sanctions against the Plaintiffs and/or their counsel should be granted.

Positions of the Parties:

The Defendant moves this Court to vacate the default judgements entered against it and [*9]to dismiss the attendant breach of contract matters against the Defendant because the Civil Court did not have subject matter jurisdiction to render the judgments. The Defendant points to Nash v. Port Authority of NY and N.J., 22 NY3d 220, 229 (2013) to support the axiom that “a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived.”^[FN46] Defendant cites additional cases supporting its argument that a court cannot assert jurisdiction over a matter in which it does not have subject matter jurisdiction. See, e.g., Defendant’s Affirmation under Index number CV-723175-16, paragraphs 19, 21 (citing, e.g., Gager v. White, 53 NY2d 475, 488 [1981] [“Unlike subject matter jurisdiction, which limits the power of a particular court rather than the judicial jurisdiction of the State en gros, a defect in basis jurisdiction is waivable.”]; Morrison v. Budget Rent a Car Sys., 230 AD3d 253, 258, 260 [2d Dept 1997] [“If, however, a court lacks subject matter jurisdiction, the parties may not confer it on the court…and it may not be conferred by laches or estoppel…. More importantly in the case before us, we recognize that that when a court lacks subject matter jurisdiction it may not acquire it by waiver.”]).

Defendant claims that it is a state agency ^[FN47] and that, as such, Article VI, Section 9 of the [*10]New York State Constitution, Court of Claims Act Section 9 proscribes that the Court of Claims has exclusive jurisdiction to hear and determine actions for money damages against it and accordingly the Civil Court does not have subject matter jurisdiction over the instant matters. See, e.g., Defendant’s Affirmation dated April 19, 2021, Index number CV-723175-16, at paragraphs 21, 25 (citing, e.g., D’Angelo v. State Ins. Fund, 48 AD3d 400 [2nd Dept 2008]; Comm’rs of the State Ins. Fund v. Photocircuits Corp., [20 AD3d at 176]).^[FN48]

Plaintiffs’ counter with CPLR §2214(c) to stress to this Court that Defendant’s motions are fatally defective and should not be considered. Plaintiffs’ counsel confirms that Defendant failed to serve all of the exhibits referenced in Defendant’s affidavits and said failure was prohibitive and prejudicial to the Plaintiffs’ ability to properly defend the motions.

Plaintiffs further cite numerous sections of the CPLR, the NYCRR, the No-Fault Insurance Law and Regulations as well as cases to support their proposition that a Defendant’s failure to raise a reasonable excuse for defaulting is reason enough to deny vacatur of the same. Plaintiffs point to Defendant’s untimely filing of its answers to support their position that the Court deny Defendant’s motion.^[FN49] Finally, Plaintiffs assert that Defendant’s failure to raise improper service as a defense ^[FN50] is a waiver of its defense of personal jurisdiction ^[FN51] and vacatur of [*11]the default judgment must be denied.^[FN52]

Plaintiffs also urge the Court to deny vacatur of the default judgments because Defendant’s assertion that it is a state agency is an inadequate defense to Plaintiffs’ position that Defendant is still fully subject to the jurisdiction of this Court.^[FN53] In support of its argument, Plaintiffs’ cite Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958), Carney v. Newburgh Park, 84 AD2d 599 (3d Dept 1981), State Ins. Fund v. State, 212 AD2d 98 (4th Dept 1995), Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807 (3rd Dept 2001); Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066 (3d Dept 2005), Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008) and Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686 (4th Dept 2011).^[FN54]

Defendant seeks sanctions against Plaintiffs and their counsel as well as costs and reasonable attorneys’ fees, alleging that Plaintiffs, by their counsel, have engaged in frivolous conduct by continuing to file actions against it that are completely without merit in the law and which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law, and that doing so is a “continued and deliberate waste of judicial resources.”^[FN55] Defendant cited three cases to support its motion for sanctions and/or the awarding of costs and legal fees.^[FN56]

Plaintiffs’ counsel maintains that he acted in good faith and that the Court must consider such good-faith to modify existing case law through “common law jurisprudence.”^[FN57] Plaintiffs rely on cases holding that unpersuasive legal arguments do not rise to the level of frivolity to [*12]require the imposition of sanctions.^[FN58]

Discussion:

The Issues of Subject Matter Jurisdiction and Vacatur of the Default Judgments

The New York State Constitution Article VI, Section 9, Court of Claims Act Section 9 states in relevant part, “The Court [of Claims] shall have jurisdiction:… 2. To hear and determine a claim of any person, corporation…against the state for the appropriation of any real or personal property…, for the breach of contract, express or implied….” While it is uncontroverted that New York State statutory and case law prove that Defendant NYSIF is a State agency within the Department of Labor,^[FN59] the federal courts have likewise reached that conclusion. See Lipofsky v. The State Insurance Fund, 86 F.3d 15 (2nd Cir.), cert. denied, 519 U.S. 971 (1996). In Lipofsky, the plaintiff claimant unsuccessfully challenged the federal district court’s finding that NYSIF was a state agency and thus was entitled to immunity from suit in federal court under the U.S. Const. amend. XI.^[FN60]

The status of NYSIF as a state agency is only being mentioned briefly as it is the predicate to the dispositive question of subject matter jurisdiction, the answer to which is that New York courts have consistently held that claims for money damages against NYSIF, whether based on an alleged breach of contract or couched as an action for a declaratory judgment, if the remedy sought is financial recovery, must be litigated in the Court of Claims. See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700-01 (claim denominated as one for a declaratory judgment was really for money damages and thus belonged in the Court of Claims); Twin City Fire Ins. Co. v. State Ins. Fund, 65 AD3d 945, 946 (1st Dept 2009) (claim disguised as one for declaratory relief was actually for money damages and thus belonged in the Court of Claims); D’Angelo v. State Ins. Fund, 48 AD3d at 402 (Supreme Court erred in granting Plaintiffs’ cross-motion to add breach of contract claim to recover damages as such a claim must be litigated against the Fund in the Court of Claims); Commissioners of State Ins. Fund v. M. [*13]Mathews & Sons Co., 131 AD2d 301 (counter-claim for actual and punitive damages for wrongful policy cancellation could only be heard in the Court of Claims); Miraglia v. State Ins. Fund, 32 Misc 2d at 473-474 (Article 78 proceeding to compel payment could only be heard in the Court of Claims); Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Civ. Ct., Kings County, Index No. 716668/2016 (Dec. 10, 2018, Gerstein, J.) (Civil Court lacked jurisdiction over State Insurance Fund in no-fault benefit action).^[FN61]

Attempts to recover money damages from the Fund in courts other than the Court of Claims have resulted in dismissals. See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700 (claim for money damages against State Insurance Fund in State Supreme Court rather than Court of Claims mandated dismissal). Accordingly, since this Court does not have subject matter jurisdiction over the claims at issue, the Court does not have the power to impose the money judgment relief sought by Plaintiffs. Further, while a claimant may subsequently seek to file the action in the Court of Claims,^[FN62] that is not an automatic fallback option.^[FN63]

Plaintiffs also urge the Court to deny vacatur of the default judgment citing to Defendant’s failure to establish a meritorious defense that this Court lacks subject matter jurisdiction over these matters.^[FN64] To support its argument, Plaintiffs’ attorney relies on Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958); Carney v. Newburgh Park, 84 AD2d 599 (3d Dept 1981); State Ins. Fund v. State, 212 AD2d 98; Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807; Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066; Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008) and Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686). The Plaintiffs’ reliance on these cases to support their suing this Defendant in this court for money damages is misplaced, factually and/or legally.

The primary issue in Commissioners of State Insurance Fund v. Low, 3 NY2d 590 (1958) was a question of collateral estoppel and res judicata. Low involved a state trooper who died after the state car he was riding in collided with a private passenger car and whose widow received Workers’ Compensation benefits via a policy issued to the State by the State Insurance Fund. Id. at 593. After Mr. Low, the operator of the other car, successfully sued New York [*14]State, not the State Insurance Fund, in the Court of Claims, alleging negligence by the operator of the state car, the Fund, which had not been a party in Low’s suit but was the statutory assignee of the deceased trooper for Workers’ Compensation purposes, subsequently sued Low for negligence in State Supreme Court. Id. at 593-594. The Supreme Court agreed with Low that the matter was res judicata and that the Fund was collaterally estopped from pursuing its action, but the Court of Appeals affirmed the Appellate Division’s reversal of the Supreme Court’s decision, noting that while the Fund was a state agency, for purposes of litigation, it was a separate entity and as it was not a party in Mr. Low’s prior suit and thus had no opportunity to litigate the matter, neither res judicata nor collateral estoppel applied. Id. at 595-96. Accordingly, this case does not support Plaintiffs’ position that their cases can, in fact, be adjudicated in Civil Court. While Low does say that for purposes of applying res judicata and collateral estoppel in litigation, the Fund can be treated as a separate entity from the State, it does not say that the Court of Claims Act does not apply to the Fund. At most, the Low case shows that the legislature may enact a specific statute, e.g., the Workers’ Compensation Law Section 81, to allow the Fund to sue or be sued in courts other than the Court of Claims. Id. at 594.

A subsequent Court of Appeals case to Low not cited by Plaintiffs’ counsel provides further clarification about circumstances upon which a particular court may have jurisdiction is Koerner v. State, 62 NY3d 442 (1984). Koerner concerned whether a Plaintiff must, when seeking monetary damages pursuant to New York’s Human Rights Law, pursue the action only in the Court of Claims. Id. at 444. In Koerner, an employee terminated from Pilgrim State Psychiatric Hospital Plaintiff filed suit in Supreme Court. Id. at 444-45. The Defendants, including among others, Pilgrim State Psychiatric as well as the State itself, moved successfully to dismiss the complaint on multiple grounds, including that the court was without subject matter jurisdiction. See 62 NY2d at 445, 448. The Court of Appeals reversed, opining that while “[f]or the most part, the State’s waiver of immunity as to actions for money damages is limited to actions commenced in the Court of Claims”, the Legislature, in statutory language permitting the State Division of Human Rights to award damages administratively without recourse to the Court of Claims, “must be deemed to have waived both the State’s immunity to suit and the requirement that it be sued in the Court of Claims.” See 62 NY2d at 448-49. Koerner confirms that, barring specific legislation to the contrary, e.g. Workers’ Compensation Law §81 or the Human Rights Law, money-damage actions against New York State and its agencies lay in the Court of Claims.

Low is also referenced in Commissioners of State Ins. Fund v. M. Mathews & Sons Co., 131 AD2d 301 (1st Dept 1987), where the Fund instituted an action in Supreme Court pursuant to Workers’ Compensation Law §93 to recover unpaid premiums on a cancelled insurance policy and respondent had counter-claimed for actual and punitive damages. Id. at 301. When the Fund moved to dismiss the counterclaim on the grounds that the Supreme Court lacked subject matter jurisdiction, that Court rejected the argument, citing Commissioners of State Insurance Fund v. Low. Id. The Appellate Division reversed and dismissed the counter-claim on the grounds that as the Fund was a State agency, it was cloaked with sovereign immunities, one of which was that it could not be sued for money damages in courts other than the Court of Claims. Id. (also citing Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d 365, 375 [1985] [holding that a counterclaim against the Fund for actual and punitive damages for wrongful policy cancellation can be heard only in the Court of Claims). Akin to Koerner, the Appellate Division in Mathews interpreted Low as allowing the Fund to consider itself a separate entity [*15]from the State itself for the purposes of instituting litigation (and thus unbound from the doctrines of collateral estoppel and res judicata by judgments rendered only against the State), but that status did not strip the Fund of its immunity as a State agency, including the requirement that it be sued for money damages in the Court of Claims absent any statute to the contrary. See 131 AD2d at 301-02.

Plaintiffs also rely on Carney v. Newburgh Park, 84 AD2d 599 to support their claim that Civil Court has jurisdiction over their cases. However, the Court’s reading of M. Mathews and Carney proves that in the absence of legislation to the contrary, claims against the Fund for money damages must be heard in the Court of Claims. Carney involved an arbitration hearing before the Workers’ Compensation Board which the Fund lost. The Fund then appealed the arbitration decision to the Appellate Division. Id. at 600. Plaintiffs argue that the Fund is deemed like any other litigant and is not afforded special treatment that an instrumentality of the state would enjoy to divest the Court of Claims of jurisdiction over this issue.^[FN65] Carney is another reminder that Workers’ Compensation proceedings are statutorily bound to arbitration, unlike automotive insurance claims. Because Carney involved the Fund as the actual insurer for these Workers’ Compensation policies (as well as many others in New York, where the Fund actually competes on the market for business), the Fund occupies a different position than it does in auto insurance No-Fault proceedings.

Plaintiffs also rely on State Ins. Fund v. State, 212 AD2d 98, as a basis for his filings in this Court. But, like Carney, the facts and applicable law in State Ins. Fund v. State were different from the Plaintiffs’ no-fault auto insurance cases, and do not establish grounds for this Court to have jurisdiction herein. State Ins. Fund v. State involved a trucking company employee who was injured by a garbage truck owned and operated by New York State. Id. at 99. As the insurance carrier for the company’s Workers’ Compensation policy, the Fund paid benefits on the employee’s behalf. Id. The Fund then sought reimbursement from New York State, which had self-insured its garbage truck. Id. at 99-100. When the State’s authorized no-fault adjuster, Continental Loss Adjusting Services Inc., denied the Fund the full amount sought, the Fund filed for mandatory arbitration against the State under Workers’ Compensation Law §29 and Insurance Law §5105. Id. at 100. After the arbitrator held the Fund failed to show that the State was the proper party to the arbitration, the Fund filed a petition in State Supreme Court pursuant to CPLR §7511 seeking to vacate the arbitrator’s decision. Id. at 100. The Supreme Court dismissed the petition, agreeing with the State that the latter could only be sued in the Court of Claims. Id. The Fourth Department reversed the Supreme Court, holding that Insurance Law §5105 stated that the sole remedy to recover on this type of claim was to submit it to mandatory arbitration. Id. at 100-101. The Appellate Court noted that as the State had chosen to self-insure its own vehicles, for the purpose of auto accident claims involving the State, it stood in the same position as any other insurer under the No-Fault Law, making it [*16]subject to mandatory arbitration. Id. at 101-102. Thus, State Ins. Fund v. State does not mean that any or all no-fault insurance cases can be litigated against the Fund or the State outside the Court of Claims, but is permissible under certain facts and applicable laws such as when a no-fault claim arises from an accident with a state-owned, operated and self-insured vehicle. Id. at 100-102.

Plaintiffs’ reliance on Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund, 289 AD2d 807 is similarly misplaced. This Court finds that this case does not support the proposition that filings against the NYSIF for money judgments can lie in the Civil Court. The Royal case involved an appeal from an underlying Court of Claims decision and the issue of Court of Claims jurisdiction was not addressed by the Third Department in its decision here. Id. at 807.

Plaintiffs’ reliance on Matter of Central NY Workers’ Compensation Bar Assn v. State of NY Workers’ Compensation Bd., 16 AD3d 1066 in support of their position that this Court has jurisdiction on Plaintiffs’ claims against the Fund is likewise unavailing. In Matter of Central NY Workers’ Compensation Bar Assn, the Fund was not a party to the action. Rather, the Defendant in this Article 78 filing, which pursuant to CPLR §7804, is required to be brought in the State Supreme Court, was the Workers’ Compensation Board (“WCB”), which was accused of showing favoritism toward Fund attorneys by allowing them to have wireless internet access during WCB proceedings. Id. at 1066-67. Aside from the statutory requirement that an Article 78 proceeding must be filed in Supreme Court, thus implicitly undercutting the relevance of this case to the issue of this Court’s jurisdiction, no issue of Court of Claims was explicitly raised in Matter of Central NY Workers’ Compensation Bar Assn. The Third Department noted that in the context of its dealings with the WCB, the Fund “is merely one of the insurers appearing in proceedings” and to provide one litigant, the Fund, with internet access while denying it to the Fund’s adversaries was arbitrary and capricious and could not stand. Id. Further, it was implicit that the relief sought was equitable, not monetary, further distinguishing this case from counsel’s list of cases. Id. at 1067.

Plaintiffs’ reliance on Merchants Mut. Ins. Co. v. New York State Ins. Fund, 85 AD3d 1686 does not address this Court’s ability to exercise of jurisdiction over these cases. Merchants Mut. Ins. Co. centered on whether the Fund was required to pay-out on a Workers’ Compensation insurance policy issued by the Fund in its capacity as a competitive, private insurer (see 85 AD3d at 1686-1687). That Merchants Mut. applied Workers’ Compensation Law to a case in which the Fund had contracted to provide insurance distinguished the case from the instant Plaintiffs’ No-Fault actions. See M. Mathews, 131 AD2d at 301-302; Carney, 84 AD2d at 600. Accordingly, the issue of whether the Supreme Court had subject matter jurisdiction was not raised here.

Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633 (2d Dept 2008), also relied on by Plaintiffs, involved Insurance Law §5105. In this case, the Fund, after paying Workers’ Compensation to and on behalf of an individual who was injured while employed by a company insured by the Fund, won an arbitration hearing pursuant to the statute, and then the Plaintiff moved, via an Article 75 proceeding, to vacate the award. See 47 AD3d at 633. This case further supports that the statute controls the venue since arbitration was required by statute, the Fund was the claimant as opposed to the Defendant, and the case involved Workers’ Compensation. CPLR §7502 permits the Supreme Court to hear Plaintiff’s Article 75 to vacate the award since it was not a monetary award. Progressive cannot be stretched to permit a basis for this Court’s jurisdiction in Plaintiffs’ current cases.

Further, the court’s lack of subject matter jurisdiction is not waivable and can be raised at any time,^[FN66] which this Defendant has done repeatedly. This Court finds that Kings County Civil Court does not have subject matter jurisdiction over Plaintiffs’ claims seeking money judgment against the Fund. Accordingly, as a judgment or order issued without subject matter jurisdiction is void, and that defect may be raised be raised at any time and may not be waived, this Court is vacating all of the default judgments issued in favor of Plaintiffs in the cases captioned in this Decision and Order. See, e.g., Editorial Photocopier Archives v. Granger Collection, 61 NY2d 517, 523 (1984). As the Civil Court did not have subject matter jurisdiction over the above-captioned ten (10) actions, this Court is compelled to dismiss the actions, but without prejudice in case any of the Plaintiffs decide to seek relief in the Court of Claims.

The Issue of Sanctions

With respect to Defendant’s request for sanctions, the Court observes patterns in Plaintiffs’ counsel’s conduct that are troubling. First, in Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010 (Civ. Ct., Kings County, Sept. 30, 2020), Judge Roper noted that Plaintiff’s counsel, namely Oleg Rybak of the Rybak firm, received a decision in December 2018 wherein another Civil Court judge had held that the Civil Court lacked jurisdiction over the State Insurance Fund.^[FN67] In Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010, the Plaintiff commenced an action against Defendant State Insurance Fund, alleging Defendant’s failure to pay first party No-Fault benefits for medical services Plaintiff rendered to its assigned eligible injured party. There, the Summons and Complaint were filed in 2015 and answered more than four months later. In 2018, the Plaintiff then filed for summary judgment pursuant to CPLR §3211(c) or §3212(a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR §3211(b). Defendant then filed its cross-motion for summary judgment on the grounds that the Civil Court did not have jurisdiction to hear the case against a state agency and that jurisdiction rested in the Court of Claims. During oral argument held in 2019, Defendant argued, inter alia, that the jurisdictional argument had previously been decided in Defendant’s favor in Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Civ. Ct., Kings County Index No. CV-716668-16, December 10, 2018 by Hon. Michael Gerstein, a case also brought by Plaintiff’s counsel. The Defendant also brought to Judge Roper’s attention twenty other first party No-fault actions that Plaintiff’s counsel filed in 2019, after the decision in Ultimate Care Chiropractic, P.C. v. State Ins. Fund. In Compass Med., P.C. v. State Ins. Fund, the Court noted that Plaintiff’s counsel, “with full knowledge and admittedly conced[ed] that [the] Court of Claims is the court of competent jurisdiction…”, counsel continued to seek relief in Civil Court. While Judge Roper did not find that Plaintiff was collaterally estopped from bringing the action since the Plaintiff and the specific facts of said case were different from Ultimate Care, the Court agreed that jurisdiction lay in the Court of Claims.^[FN68] That Court [*17]rejected Plaintiff’s claim that the Civil Court should retain jurisdiction because the matter would be time-barred if brought in the Court of Claims. Judge Roper reasoned that “[t]his Court’s jurisdiction is not a fail-safe, not a fallback and not a court of contingent jurisdiction.”^[FN69]

This Court’s review of UCMS on April 6, 2021 indicates that the Rybak Firm is listed as counsel for Plaintiffs on at least 118 matters in the Kings Civil Court against this Defendant, reflecting filings between the beginning of 2008 and the end of 2020. Even if Plaintiffs attempted to argue that Compass Med and Ultimate Care cases are distinguishable from the instant cases because there are different facts and different Plaintiffs, such assertions are without merit since it is irrefutable that the Defendant is a state agency and as a state agency, the Court of Claims is the proper court to hear their claims.

When actions are brought where there is incontrovertible proof that undercut their filing in the first place,^[FN70] much less cases where there existed conclusive defenses to the asserted claims,^[FN71] courts have the discretion, on their own initiative or upon a party’s motion, to impose sanctions on a party for commencing a frivolous proceeding. See 22 NYCRR §130-1.1;^[FN72] see also Ram v. Torto, 111 AD3d 814 (2nd Dept 2013), lv. dismissed, 22 NY3d 860 (2014) (court upheld Defendant’s motions for attorney’s fees as well as injunctive relief prohibiting self-represented Plaintiff from filing further actions related to the case without court approval and also imposed, on its own initiative, a fine for frivolous conduct); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d 826 (2d Dept 2014) (defendant’s motions for sanctions and attorney’s fees granted); cf. CPLR §8303(a) (where a personal injury action is commenced or continued and is found by the court to be, at any point in the proceedings, frivolous, the court [*18]shall award costs and reasonable attorney’s fees up to $10,000).

In Ram, the Appellate Division noted that the self-represented Plaintiff commenced various proceedings relating to the same matter, all of which had been dismissed by lower courts, which were subsequently affirmed by the Appellate Division.^[FN73] The Ram Defendants moved to dismiss the complaint pursuant to CPLR §3211(a)(7) because the Plaintiff failed to state a cause of action, for injunctive relief, and for an award of costs pursuant to 22 NYCRR §130-1.1.^[FN74] The Appellate Division upheld the lower court’s dismissal of the complaint and further found that the lower court “acted providently in enjoining the Plaintiff ‘from commencing any action or proceeding seeking relief from [Defendants] or from anyone else, in any form or fashion, related to or arising from the [underlying money judgment] without prior permission from this court or from the Appellate Division, Second Department.'”^[FN75] The Appellate Division also upheld the lower court’s award of costs pursuant to 22 NYCRR §130-1.1.^[FN76] in the amount of $6,000 for attorney’s fees, payable by the Plaintiff.^[FN77] The Appellate Division in Ram also held that the Plaintiff’s appeal was frivolous as it had no legal merit and was not supported by any reasonable argument, and ordered him to pay $2,500 to the court clerk to be forwarded in turn to the State Department of Taxation and Finance.^[FN78] See also Greene v. Rachlin, 154 AD3d 818 (2d Dept 2017) (attorney’s fees awarded as sanction against Plaintiff for its frivolous conduct in commencing action that was without merit in law and could not be supported by a reasonable argument for extension or modification of existing law); Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733 (attorney’s fees of $500 awarded as sanction against Plaintiff for its frivolous conduct in commencing time-barred lawsuit); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d at 827-28 (sanction and attorney’s fee warranted where Plaintiff and counsel filed new action after Plaintiff’s previous action, with same counsel, had been dismissed, and new action had no merit in law nor any reasonable argument). Similarly, sanctions may be considered where a party continues to file actions despite knowing that it has no basis for doing so.^[FN79]

When the Plaintiffs appealed in all of the Omni cases listed in footnote 79, which included not only the 34 cases decided on December 21, 2018, but a few more decided the same day, the Appellate Term affirmed each dismissal and, on the Appellate Term’s own motion, directed the parties to show cause as to whether the Court should impose sanctions and costs against Plaintiffs’ counsel. See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A); see also Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d at 733 (sanctions and attorney’s fees against Plaintiff warranted where Defendant not only showed debt claims were time-barred by a wide margin and Plaintiff, when asked for proof of debt, failed to provide it but rather discussed Defendant’s defenses). In the Appellate Term’s Omni Indemnity decisions, all of which were issued on December 21, 2018, the Court held that sanctions could be considered because Plaintiffs’ counsel’s conduct appeared not only to meet the definition of frivolous conduct as stated in 22 NYCRR §130-1.1, but that “[s]ince 2013, Plaintiff and/or other providers represented by Plaintiffs’ counsel have been before this court more than 20 times in similar actions wherein these providers, while represented by Plaintiffs’ counsel, have made the same or essentially the same arguments which Plaintiff raises in the instant appeal.” See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (citations omitted); see also Greene v. Rachlin, 154 AD3d at 819) (Plaintiffs’ continued pursuit on appeal of the same claims that were previously found meritless and barren of any reasonable argument as well as the advancing of other meritless arguments warranted an additional consideration as to whether the appeal was frivolous and could result in additional sanctions); Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d at 827-28 (judicial record of a prior case involving the Plaintiff and a related party constituted documentary evidence that warranted summary dismissal as well as sanctions and attorney’s fees). The Appellate Term further stated that “Plaintiff’s counsel continues to advance [*19]essentially the same arguments notwithstanding the fact that Defendant’s appellate brief expressly notes that this court has previously considered and rejected the arguments put forth by Plaintiff’s counsel…”. See, e.g., Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (citations omitted).

The Court is also troubled by Plaintiffs’ counsel’s insistence that it has proceeded in “good faith and with the support of binding authority on the matter as discussed above”^[FN80] , i.e., whether the Civil Court has subject matter jurisdiction. Rather, it appears to this Court that Plaintiffs’ citations to cases in support of jurisdiction are replete with either misunderstood and/or incomplete recitations of pertinent facts (e.g., Carney v. Newburgh Park [specific workers compensation legislation requires NYSIF to appear at arbitration hearings in matters in which NYSIF is actually providing the policy and acting as a competitor in the market]; Royal Ins. Co. of Am. v. Comm’rs of State Ins. Fund [underlying case actually was litigated in the Court of Claims]. Accordingly, this Court is stressed to give the Plaintiffs and their counsel the benefit of the doubt that they have cited “binding authority” in favor of subject matter jurisdiction over the Defendant in the instant cases. Last, this Court has been further tested about Plaintiffs’ counsel’s “good faith” due to the latter’s interpretation of the last series of communications with this Court that it would not be issuing this Decision and Order as stipulations of discontinuances on all of the cases would render the issues resolved (for now, or until the cycle repeated with more no-fault filings against Defendant in Civil Court). It is a close call whether this Court should impose monetary sanctions and/or costs and attorneys’ fees upon Plaintiffs’ counsel.

Conclusion:

Defendant established that the New York Constitution’s Court of Claims Act requires this Court to summarily dismiss the Plaintiffs’ complaints against this Defendant state agency.^[FN81] The [*20]Court is unpersuaded by Plaintiffs’ arguments, including the cases it cited that are immaterial to the issue presented and seek to unjustifiably expand this Court’s jurisdiction to adjudicate actions seeking money judgments against the Fund. This Court lacks subject matter jurisdiction over the ten (10) captioned matters above, wherein jurisdiction lies only with the Court of Claims, as the Plaintiffs are attempting to collect money damages from a State agency. The Defendant’s motions to dismiss are therefore granted in part and denied in part. Granted to the extent that all actions are dismissed and denied to the extent that neither monetary sanctions nor costs and attorney fees will not be issued against Plaintiffs or their counsel although this Court has the discretion to so issue given the facts and circumstances herein. However, Plaintiffs’ counsel, namely the Rybak Firm as well as Oleg Rybak, Esq. and the Plaintiffs are enjoined from commencing any action or proceeding seeking relief in the form of a money judgment from this Defendant, in any Civil Court, without prior approval from this Court or the Appellate Term. To do so otherwise, could warrant monetary sanctions, as well as costs and attorney fees.

This constitutes the Decision and Order of the Court.

Dated: June 24, 2021
Brooklyn, New York
Hon. Patria Frias-Colón
Civil Court, Kings County

Footnotes

Footnote 1: The “Numbered” column represents the electronic filing via the “Electronic Document Delivery System” (EDDS), which at the time of this decision was the method afforded New York State attorneys and other authorized persons to file legal papers by electronic means. This method of E-filing via EDDS is authorized for these proceedings in Kings County Civil Court. These identifying numbers represent the confirmation provided to each counsel upon uploading their respective legal documents under each Index number.

Footnote 2: The Motions for these ten cases involve the same attorneys and the same dispositive issues of law. For the sake of judicial economy, the Decision and Order for each matter will be combined into this single decision. To further minimize confusion for the reader in identifying the cases, Plaintiff NYS Acupuncture Inc. is on three of the cases (Number 1 [a/a/o Patrick Howard], Number 2 [a/a/o Miguel Quinn] and Number 4 [a/a/o Karen Cutler] in the captioned Decision and Order above; Plaintiff Elmont Rehab, P.T., P.C. is on two of the cases (Number 3 [a/a/o Karen Cutler] and Number 5 [a/a/o Miguel Quinn]) in the captioned order above, Plaintiff Uzma Nasir Physician, P.C. is on one case (Number 6 [a/a/o Miguel Quinn]), Plaintiff Solution Bridge, Inc. is on one case (Number 7 [a/a/o Jennifer Schaum]); Plaintiff Metro Pain Specialist, P.C. is on one case (Number 8 [a/a/o Eileen Kilbane]), Plaintiff Gentlecare Ambulatory Anesthesia Services is on one case (Number 9 [a/a/o Maglorie Bueno]), and Plaintiff Right-Aid Medical Supply Corp. is on one case (Number 10 [a/a/o Enrique Alexander]).

Footnote 3: See Exhibit B of Defendant’s motion under Index number CV-723175-16/KI — Defendant’s Answer.

Footnote 4: See Exhibit A of Defendant’s motion under Index number CV-723175-16/KI — Summons and Complaint for Plaintiff.

Footnote 5: See Exhibit B of Defendant’s motion under Index number CV-723175-16/KI — Defendant’s Answer.

Footnote 6: See Exhibit C of Defendant’s motion under Index number CV-723175-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 7: See Exhibit A of Defendant’s motion under Index number CV-723178-16/KI — Summons and Complaint.

Footnote 8: Id.

Footnote 9: See Exhibit B of Defendant’s motion under Index number CV-723178-16/KI — Answer.

Footnote 10: See Exhibit C of Defendant’s motion under Index number CV-723178-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 11: See Exhibit A of Defendant’s motion under Index number CV-723183-16/KI — Summons and Complaint.

Footnote 12: Id.

Footnote 13: See Exhibit B of Defendant’s motion under Index number CV-723183-16/KI — Defendant’s Answer.

Footnote 14: See Exhibit C of Defendant’s motion under Index number CV-723183-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 15: See Exhibit A of motion under Index number Defendant’s CV-723185-16/KI — Summons and Complaint Plaintiff.

Footnote 16: Id.

Footnote 17: See Exhibit B of Defendant’s motion under Index number CV-723185-16/KI — Answer for Plaintiff.

Footnote 18: See Exhibit C of Defendant’s motion under Index number CV-723185-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 19: Subsequent to the conference held on April 6, 2021, Stipulations of Discontinuances were submitted to this Court for 98 no-fault insurance cases filed in Kings County Civil Court against Defendant NYSIF in which Plaintiffs were all represented by the Rybak Firm, who is also representing the instant Plaintiffs. To this Court’s dismay, it found that of the 98 stipulations, 97 of which were dated May 13, 2021 and one which was dated May 19, 2021, ten of the stipulations were for the ten cases captioned above that this Court had previously emphasized to both sides that it intended to render a Decision and Order. In an email dated June 9, 2021, Plaintiffs’ counsel told this Court that it disagreed with this Court’s recollection of the multiple “discussions” held and that “your Honor made it abundantly clear that you intended to vacate years old defaults and permit the NYSIF to dismiss the 10 cases. Based on these prior discussions, it is Plaintiffs and their counsel’s position that they would like to dismiss all cases between the Providers represented by The Rybak Firm, PLLC and the NYSIF. Based of [sic] that, if possible, since there is no need to issue any orders and the cases can be dismissed on the previously submitted and executed stipulations.” Defendant’s counsel objected to Plaintiffs’ email. This Court rejects Plaintiffs’ counsel misinterpretation and accordingly, 88 of the 98 stipulations of discontinuances will be filed in Kings County Civil Court. For the reasons set forth, this Court renders this decision on the ten instant cases herein. This Court is troubled by the lack of discernible order the 98 stipulations were sent; there was no chronological or alphabetical order. This may be because either the ten stipulations for the instant cases were mixed-in deliberately with the other 88 in an attempt to preempt this Court from issuing its intended Decision and Order and any possible subsequent consequence to counsel, or the random insertion of these ten cases was an inadvertent error or a misinterpreted and innocent attempt to clear the Civil Court of all the cases between these parties.

Footnote 20: See Exhibit A of Defendant’s motion under Index number CV-723177-16/KI — Summons and Complaint for Plaintiff.

Footnote 21: Id.

Footnote 22: See Exhibit B of Defendant’s motion under Index number CV-723177-16/KI — Defendant’s Answer.

Footnote 23: See Exhibit C of Defendant’s motion under Index number CV-723177-16/KI — Kings County Civil Court Judgment dated October 11, 2016 for Plaintiff.

Footnote 24: See Plaintiff’s Affidavit at paragraph 9 and Exhibit 1 under Index number CV-723180-16/KI — Affidavit of Service dated July 6, 2016.

Footnote 25: See Exhibit 1 of Plaintiff’s Affidavit of Service of Summons and Complaint under Index number CV-723180-16/KI. The Summons and Complaint are missing from this Exhibit and not included elsewhere in Plaintiff’s Opposition; see also Affidavit of Roseanne Nichols, Esq., Defendant’s Exhibit K, dated April 19, 2021 (claiming, inter alia, no affidavit of service of the summons and complaint was filed with the Court, and there was improper service of the summons and complaint and entry of default judgment upon Defendant.no notice of leave to enter the default judgment was motion for default was served, and that the Civil Court did not have subject matter jurisdiction).

Footnote 26: See UCMS records regarding the Summons and Complaint for Plaintiff under Index number CV-723180-16/KI.

Footnote 27: See Exhibit A of Defendant’s motion under Index number CV-723180-16/KI — Kings County Civil Court Judgment dated October 11, 2016.

Footnote 28: See Exhibit A of Defendant’s motion under Index number CV-707439-17/KI — Plaintiff’s Summons and Complaint.

Footnote 29: Id.

Footnote 30: See Exhibit 2 of Plaintiff’s motion under Index number CV-707439-17/KI — Defendant’s Answer.

Footnote 31: See Exhibit 3 of Plaintiff’s motion under Index number CV-707439-17/KI — Plaintiff’s Rejection of Defendant’s Answer.

Footnote 32: See Exhibit B of Defendant’s motion under Index number CV-707439-17/KI — Kings County Civil Court Judgment dated October 11, 2016 for Plaintiff.

Footnote 33: See Exhibit C of Defendant’s motion under Index number CV-707439-17/KI.

Footnote 34: See Exhibit A of Defendant’s motion under Index number CV-704429-18/KI — Plaintiff’s Summons and Complaint.

Footnote 35: Id.

Footnote 36: See Exhibit C of Defendant’s motion, Index number CV-704429-18/KI.

Footnote 37: See Exhibit B of Defendant’s motion, Index number CV-704429-18/KI.

Footnote 38: See Exhibit A of Defendant’s motion, Index number CV-706460-19/KI — Summons and Complaint.

Footnote 39: Id.

Footnote 40: See Exhibit B of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 41: See Exhibit C of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 42: See Exhibit D of Defendant’s motion under Index number CV-706460-19/KI.

Footnote 43: See Exhibit A of Defendant’s motion under Index number CV-707274-19/KI — Plaintiff’s Summons and Complaint.

Footnote 44: Id.

Footnote 45: See Exhibit 4 of Plaintiff’s motion under Index number CV-707274-19/KI.

Footnote 46: See, e.g., Defendant’s Affirmation under Index number CV-723175-16, paragraphs 18-20. Defendant’s citation to Nash is from an opinion that dissented in part, on other grounds, from the majority decision which did not touch on subject matter jurisdiction. The Nash case involved the Court of Appeals review of the Port Authority’s successful motion in Supreme Court to vacate a tortious liability judgment against it after it had previously failed to appeal from an order of the Appellate Division affirming the judgment, contending that there had been a post-judgment change in the law immunizing the Port Authority. See 22 NY3d at 223. The Court of Appeals reversed the lower’s court vacatur of the judgment, finding that the lower court was wrong when it found that it had no discretion other than to vacate the judgment. See 22 NY3d at 225-226. The Nash case turned on the interplay between CPLR §5015(a)(5) (vacating a judgment because of reversal, modification or vacatur of a prior judgment) and whether the underlying court had the discretion to consider whether the Port Authority had waited too long to make its motion, rather than the question as to whether the underlying court even had jurisdiction to hear the case (see CPLR §5015[a][(4]), which is the issue before this Court. See 22 NY3d at 225-226, 229. The dissenting opinion, while agreeing with the majority on the vacatur of the judgment, emphasized that “unlike subject matter jurisdiction—an issue that is nonwaivable and can be raised by any party at any time in any forum—the Port Authority sought vacatur of the Nash judgment based on an issue that was waivable.” See 22 NY3d at 225-226, 229. Defendant subsequently cited to support its argument that the instant default judgments must be vacated because subject matter jurisdiction cannot be waived with case more on point than Nash. See 22 NY3d 220 (order vacating judgment reversed and remitted to Supreme Court for further proceedings), on remitter 131 AD3d 164, 165 (1st Dept 2015) (the motion court, which upon remand from the Court of Appeals, again vacated the judgment, which the Appellate Division reversed as an improvident exercise of discretion).

Footnote 47: See, e.g., Defendant’s Affirmation, Index number CV-723175-16, paragraph 20 (citing, e.g., Workers’ Compensation Law § 76; Comm’rs of the State Ins. Fund v. Photocircuits Corp., 20 AD3d 173, 176 [1st Dept 2005].

Footnote 48: Defendant asserts additional arguments, e.g., that Defendant was not made aware of the prior default judgments, that the default judgments were entered in error, that some Plaintiffs should have first filed their claims with the Worker’s Compensation Board before any further resolution could occur in the Court of Claims. See, e.g., Defendant’s Affirmation, Index number CV-723175-16 at paragraphs 16, 17, 27, 54, 58. Defendant cites several persuasive cases supporting the position that this Court would be providently exercising its discretion in vacating the judgments. See, e.g., Defendant’s Affirmation, Index number CV-723175-16 (citing Bunch v. Dollar Budget, Inc., 12 AD3d 391 [2d Dept 2004] [defendant’s delay in answering was brief, the default was not willful, and there was no evidence that the plaintiff was prejudiced]); Anamdi v. Anugo, 229 AD2d 408 [2d Dept 1996] [court exercised sound discretion in granting vacatur of default judgment where defendant was unaware that the action had commenced and presented an affidavit showing a meritorious defense]). Because this Court’s resolution of the subject matter jurisdiction issue is dispositive in the instant cases, this Court need not reach any of the parties’ arguments other than the jurisdictional one. E.g., c.f., Matter of Regina Metro Co., LLC. v. New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 382 n. 27 (2020) (Court did not reach claim as to whether there was an unconstitutional taking because issue was resolved on other grounds); Matter of Adirondack Wild Friends of the Forest Preserve v. New York State Adirondack Park Agency, 34 NY3d 184, 194 (2019) (for purposes of rendering decision, Court did not need to address whether Department of Conservation plan triggered a provision); Braunstein v. Day, 2021 NY App. Div. LEXIS 3548 (2nd Dept 2021) (As Appellate Division granted the defendant’s motion for summary judgment, it was unnecessary for it to reach the defendant’s remaining contention).

Footnote 49: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 6.

Footnote 50: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 10.

Footnote 51: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 13.

Footnote 52: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 20-23.

Footnote 53: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraph 30.

Footnote 54: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 31-38.

Footnote 55: See, e.g., Defendant’s Affirmation, Index No. 723175/16, at paragraphs 76, 78-79 (citing 22 NYCRR § 130-1.1).

Footnote 56: See, e.g., Defendant’s Affirmation, Index No. 723175/16, at paragraph 77 (citing Transaero, Inc. v. Biri Associates, Corp,. 39 AD3d 738 [2d Dept 2007] [sanctions imposed, on the court’s own motion, against plaintiff and plaintiff’s attorney for filing a lawsuit that attempted to skirt the statute of limitations by falsely claiming that the plaintiff and/or attorney had only recently become aware that they had a cause of action]; Yan v. Klein, 35 AD3d 729, 826 N.Y.S2d 669 [2d Dept 2006] [sanctions warranted where Plaintiff’s attorney repeatedly continued to advance cases that were barred by the doctrines of res judicata and collateral estoppel]); Weinstock v. Weinstock, 253 AD3d 873 [2d Dept 1998] [plaintiff attorney representing self in divorce proceeding ordered to pay $3000 in costs to ex-wife defendant and $10,000 to Lawyers Fund for Client Protection for pursuing an appeal that was meritless in that there was no identifiable relief being sought other than forcing defendant to incur unnecessary counsel fees]); see also CPLR § 8303-a (where a personal injury action is commenced or continued and is found by the court to be, at any point in the proceedings, frivolous, the court shall award costs and reasonable attorney’s fees up to $10,000).

Footnote 57: See, e.g., Plaintiff’s Affirmation, Index No. 723175/16, at paragraphs 40 and 43.

Footnote 58: W.J. Nolan & Co. v. Daly, 170 AD2d 320 (1st Dept 1991) vacated an order imposing sanctions on an attorney because the attorney did know that claims arising from Plaintiff utilizing confidential records of Defendant’s employment was subject to arbitration. Lewis v. Stiles, 158 A.D.2d589 (2d Dept 1992) rejected Defendant’s request to impose sanction in Plaintiff’s nuisance cause of action because counsel’s arguments about the alleged disturbances of children frolicking and dogs barking created by Defendant’s installation of a pool and building a pool house are unpersuasive but do not rise to the level of frivolous.

Footnote 59: See Workers’ Compensation Law §76[1]; Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d at 375 ; D’Angelo v. State Ins. Fund, 48 AD3d 400, 402 (2d Dept 2008); GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700 (2nd Dept 2012); Commissioners of State Ins. Fund v. M. Mathews & Sons Co., 131 AD2d 301 (1st Dept 1987); Miraglia v. State Ins. Fund, 32 Misc 2d 471, 473-74 (Sup. Ct. Bx. County 2011).

Footnote 60: See Lipofsky v The State Insurance Fund, 86 F.3d 15.

Footnote 61: This case, also cited as Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-71668-16, was discussed in Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010 (Civ. Ct., Kings County, Sept. 30, 2020), wherein Judge Sandra Roper noted therein that Plaintiffs’ counsel in both cases was the Rybak Firm, who is also counsel in the instant cases.

Footnote 62: See GuideOne Specialty Mut. Ins. Co. v. New York State Ins. Fund, 2015 NY Misc. LEXIS 4345 (NY Ct. Cl., Nov. 12, 2015) where permission was granted to file late claim.

Footnote 63: See Compass Med., P.C. v. State Ins. Fund, 2020 NY Misc. LEXIS 7010 (citing Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-716668-16 [Civil Court improperly granted Plaintiff leave to transfer case to Court of Claims because that court does not accept transfers and the matter was time-barred]).

Footnote 64: See, e.g., Plaintiff’s Affirmation, Index number CV-723175-16, at paragraphs 30-39.

Footnote 65: See, e.g., Plaintiff’s Affidavit, Index No. 723175/16 dated April 22, 2021, paragraph 36. The additional cases that Plaintiffs cite in paragraphs 36—38, are likewise distinguishable from the instant cases because subject matter jurisdiction was not an issue in Plaintiffs’ cited cases where NYSIF was acting like a private insurer in the competitive market collecting premiums and in that context may bring actions in other state courts.

Footnote 66: See GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d at 700; D’Angelo v. State Ins. Fund, 48 AD3d at 402.

Footnote 67: Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. CV-716668-16.

Footnote 68: See Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010.

Footnote 69: Id.

Footnote 70: See GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700; D’Angelo v. State Ins. Fund, 48 AD3d 400; Miraglia v. State Ins. Fund, 32 Misc 2d 471.

Footnote 71: See Mosab Constr. Corp. v. Prospect Park Yeshiva, Inc., 124 AD3d 732, 733 (2d Dept 2015) (summary dismissal granted where case was time-barred after being filed eleven years after alleged breach of contract) and Flushing Expo, Inc. v. New World Mall, LLC, 116 AD3d 826, 827 (2d Dept 2014) (summary dismissal granted when Defendant’s evidence conclusively showed no contract existed between the parties).

Footnote 72: 22 NYCRR §130-1.1(a) authorizes a court to award to any party or attorney reasonable expenses incurred and reasonable attorney’s fees, resulting from frivolous conduct and, in addition to or in lieu of awarding costs, to impose financial sanctions upon any party or attorney for said conduct. Pursuant to 22 NYCRR §130-1.1(b), these sanctions can be imposed against the attorney personally or upon a partnership, firm or corporation with whom the attorney is associated and has appeared as attorney of record. In addition, 22 NYCRR §130-1.1(c) states, in part, that “conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law….Frivolous conduct shall include the making of a frivolous motion….In determining whether the conduct undertaken was frivolous, the court shall consider…the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” 22 NYCRR §130-1.1(d) states, in part, “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR §2214 or §2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.”

Footnote 73: Id. at 815.

Footnote 74: Id.

Footnote 75: Id. at 815-816 (citing Spremo v. Babchik, 216 AD2d 382 [2nd Dept 1995]).

Footnote 76: 22 NYCRR §130-1.2 authorizes a court to award costs, or impose sanctions, or both, up to $10,000 for any single occurrence of frivolous conduct, but the court can only do so “upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate.”

Footnote 77: Id. at 816.

Footnote 78: Id.

Footnote 79: In all the below-cited cases filed against Omni Indemnity Co., which were heard by various Kings County Civil Court judges, several medical providers sought to recover assigned first party no-fault benefits. Each Plaintiff was represented by the Rybak Firm. Except for an award to a Plaintiff by one judge which was subsequently reversed by the Appellate Term (see Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 62 Misc 3d 134[A]), all were summarily dismissed because the Defendant showed that Plaintiff sued the wrong insurance company and the Plaintiff failed to raise an issue of fact in response. See T & S Med. Supply Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6494, 62 Misc 3d 131(A).See, e.g., Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6482, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6487, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Charles Deng Acupuncture, P.C., v. Omni Indem. Co., 2018 NY Misc. LEXIS 6496, 62 Misc 3d 139(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); T & S Med. Supply Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6494, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Maiga Prods. Corp. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6462, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6474, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6497, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6466, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6456, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6478, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6481, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6490, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6483, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6457, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Masigla v. Omni Indem. Co., 2018 NY Misc. LEXIS 6456, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6475, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6467, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6479, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6452, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Natural Therapy Acupuncture, P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6469, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6454, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6465, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6450, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6455, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas v. Omni Indem. Co., 2018 NY Misc. LEXIS 6486, 62 Misc 3d 135(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6451, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6492, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6472, 62 Misc 3d 131(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6471, 62 Misc 3d 132(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6491, 62 Misc 3d 133(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6461, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6495, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018); Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6915, 62 Misc 3d 134(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018) Compas Med., P.C. v. Omni Indem. Co., 2018 NY Misc. LEXIS 6470, 62 Misc 3d 136(A) (App. Term 2d Dept 2d, 11th & 13th Jud. Dists. Dec. 21, 2018).

Footnote 80: See, e.g., Plaintiff’s Affirmation, Index No. 723175/16, at paragraph 40 (emphasis supplied). Plaintiffs misplaced reliance on other cited cases to support their position that Defendant failed to move to dismiss the complaint for lack of personal jurisdiction or refute the presumption of valid service of process is unpersuasive. See, e.g., Plaintiff’s Opposition, CV-723175-16 at paragraphs 13 and 15 citing US Consults v. APG, Inc., 82 AD3d 753 (2d Dept 2011]) and paragraph 13. Plaintiffs’ counsel also cited US Consults case in Ultra Ortho Prods., Inc. v. North Carolina Farm Bur. Ins. Group, 2018 18 NY Misc. LEXIS 5076, 61 Misc 3d [Civ Ct, Kings County, Nov. 9, 2018, Kennedy, J]. The Court in Ultra Ortho Prods. found that “the cases cited by plaintiff’s counsel [Oleg Rybak Esq., The Rybak Firm] are distinguished from the facts of the instant action” rejecting the plaintiff’s claim that personal jurisdiction was acquired and dismissed the complaint.

Footnote 81: See, e.g., GuideOne Specialty Mut. Ins. Co. v. State Ins. Fund, 94 AD3d 700; Twin City Fire Ins. Co. v. State Ins. Fund, 65 AD3d 945; D’Angelo v. State Ins. Fund, 48 AD3d 400, 402; Commissioners of State Ins. Fund v. Mathews & Sons Co., 131 AD2d 301; Miraglia v. State Ins. Fund, 32 Misc 2d 471; Compass Med., P.C. v. New York State Ins. Fund, 2020 NY Misc. LEXIS 7010; Ultimate Care Chiropractic, P.C. v. State Ins. Fund, Index No. 716668/2016; see also NY Const. art. VI, § 9; Workers’ Compensation Law § 76[1]; Methodist Hosp. of Brooklyn v. State Ins. Fund, 64 NY2d at 375.

CV-702946-18/KI

Attorney for Plaintiff: Allen Tsirelman, Esq., Gary Tsirelman P.C., 129 Livingston Street Brooklyn, Brooklyn, New York 11201

Attorney for Defendant: Michael Philippou, Esq., Rubin, Fiorella, Friedman & Mercante LLP, 630 Thrid Ave. 3rd Floor, New York, NY 10017

The court’s Decision and Order is based upon consideration of the following papers:

NOTICE OF MOTION & AFFIDAVITS ANNEXED 1

OPPOSITION/CROSS-MOTION 2

REPLY/OPPOSITION TO CROSS-MOTION 3

EXHIBITS

CPLR 2219(a) Recitation

Upon the foregoing cited papers, after oral argument, on June 4, 2021, the Decision and Order on Defendant’s Motion to Dismiss pursuant to CPLR 3211(A)(5) and 3212 on the grounds that it is barred by res judicata and collateral estoppel is as follows:

This action to seeking reimbursement of No-Fault benefits, was commenced on or about January 19, 2018. Issue was joined on or about February 21, 2018 with the service of Defendant’s Answer. The Answer contained numerous affirmative defenses including the defense that the action was barred by res judicata and/or collateral estoppel. On May 2, 2018 Defendant filed a summary judgment motion claiming that the underlying accident was staged and that there was fraud in the procurement of the policy. The motion was denied on April 16, 2019 as the court preserved these claims as questions of fact for trial. Plaintiff filed a Notice of Trial on or about May 7, 2019 that Defendant claims they received on May 20, 2019. The court file indicates that Defendant filed a motion to strike the notice of trial on June 18, 2019 and that after a number of adjournments due to COVID quarantine and/or requests by the parties, the motion will appear on the No-Fault motion calendar for argument on August 22, 2022. Thus, the motion to strike is not before this court.

On or about April 19, 2018, State Farm commenced a declaratory action in New York Supreme Court. On September 11, 2019, the Supreme Court issued an order declaring that State Farm has no obligation to cover No-Fault claims for the plaintiff, date of loss and claim number herein. “‘Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes re-litigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party'” (Milton v. Subraj, et al, 67 Misc 3d 140[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2020] quoting Ciraldo v. JP Morgan Chase Bank, N.A.,140 AD3d 912 at 913 [2d Dept. 2016]; see Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304 [1929]). Defendant now seeks dismissal of this action based upon that Supreme Court order.

Plaintiff opposes the instant motion claiming that it is procedurally defective. Specifically, Plaintiff claims that Defendant improperly seeks relief under CPLR 3211(a)(5) because such a motion must be made before issue is joined, which was not done here. Additionally, Plaintiff argues that Defendant cannot move pursuant to CPLR 3212 because this motion was filed more than one hundred twenty (120) days after the filing of the Notice of Trial. Notably, Plaintiff does not oppose the motion on substantive grounds.

It is well established that CPLR 3212(a) provides that if no date is set by the court, a motion for summary judgment shall be made no later than one hundred twenty (120) days after the filing of the note of issue, except with leave of court on good cause shown (Brill v. City of New York, 2 NY3d 648 [2004]). Good cause has been defined as “a satisfactory explanation for the untimeliness” (Brill v. City of New York, 2 NY3d 648, 652). In this matter, Plaintiff correctly claims that this motion was filed beyond the one hundred and twenty (120) day period of the filing of the notice of trial. It is also noted that Defendant’s motion to strike the notice of trial has been adjourned well into next year and is not before the court at this time. Consequently, the May 7, 2019 filing of the notice of trial remains and the summary judgment motion is late.

Notwithstanding the above, the circumstances surrounding this case present good cause for the court to entertain a late summary judgment motion. Here summary judgment is sought based upon an order of the Supreme Court order which holds that as between the parties, Defendant bears no obligation to provide no fault coverage to Plaintiff stemming from the subject collision. In Armentano v Broadway Mall Properties, Inc., the Second Department found that the lower court had good cause to entertain a late summary judgment motion because it was based upon an order of the Appellate Department in a prior appeal of the matter which dismissed the case (Armentano v Broadway Mall Properties, Inc., 48 AD3d 493 [2d Dept 2008]). Similarly, in the instant action, the September 11, 2019 Supreme Court order is dispositive as to the merits of this matter and warrants dismissal of the case.

Further, Defendant could not have moved based on those defenses prior to joinder of issue as required by CPLR 3211(a)(5) because the declaratory judgment order did not exist at the time (see generally Renelique v State Wide Ins. Co., 50 Misc 3d 137[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; Metro Health Products, Inc. v. Nationwide Ins., 52 Misc 3d 138[A] [App Term, 2d Dept., 11th & 13th Jud. Dists. 2016]; see Atlantic Chiropractic, P.C., 62 Misc 3d 145[A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2019]; Milton v. Subraj, 67 Misc 3d 140 [A]). Likewise, when the first summary judgment motion was filed, the declaratory judgment order had not been issued; the only grounds for the initial summary judgment motion at that time were Defendant’s claims of fraud and staged accident.

Furthermore, to deny relief based on the untimeliness of the summary judgment motion under these facts would result in a disregard of a Supreme Court order and lead to an unjust result. Any judgment issued in favor of Plaintiff would destroy or impair rights or interests established by the judgment in the declaratory action. (see Active Chiropractic, P.C. v. Allstate Ins., 58 Misc 3d 156[A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2018]; Metro Health Products, Inc. v. Nationwide Ins., 52 Misc 3d 138 [A] [App Term, 2d Dept.,11th & 13th Jud. Dists. 2016]).

It is further noted that Plaintiff cannot now claim prejudice or surprise. Plaintiff was on notice of these defenses since early 2018, when Defendant raised its res judicata and collateral estoppel affirmative defenses in its Answer.

Although this is Defendant’s second summary judgment motion, the court will entertain the motion as it is based on the new evidence: the subsequently issued order of the Supreme Court which directly affects this action. “Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (Burbige v. Siben & Ferber, 152 AD3d 641,642 [2d Dept 2017]; see Valley Natl. Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]).

Lastly, Plaintiff’s assertion that the declaratory judgment has no merit because it was granted on default is erroneous. It is well settled that “res judicata applies ‘to an order or judgment taken by default which has not been vacated, as well as to issues which were or could have been raised in the prior [action]'” (Lazides v. P & G Enters., 58 AD3d 607, 609 [2d Dept 2009] [internal citation omitted]). “[A] Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default” (Ava Acupuncture, P.C. v. NY Central Mut. Fire Ins. Co., 34 Misc 3d 149 [A] [App Term, 2d Dept. 2d, 11th and 13th Jud Dists 2012]; Atlantic Chiropractic, P.C. v. Utica Mutual Ins. Co., 62 Misc 3d 145[A]).

Based on the foregoing, Defendant’s motion is Granted. Defendant established that it properly preserved its res judicata and collateral estoppel defenses; that a declaratory judgment order was issued regarding this claim; and that the order has preclusive effect given the identity of issues and parties. Accordingly, the complaint is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

ENTER.
June 24, 2021
Brooklyn, NY
Hon. Consuelo Mallafre Melendez
Judge, Civil Court

Index No. CV-733608-19
Gina Levy Abadi, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion and cross motion for summary judgment:

Papers/ Numbered

Notice of Motion and Affidavits/Affirmations Annexed 0O9NBM

Cross-Motion and Answering Affidavits E2E86J

Opposition/Reply Affidavits/Affirmations Q486UA

Memoranda of Law________

Other________

Defendant State Farm Mutual Automobile Ins. Co. PIP/BI Claims (hereinafter “State Farm”) moves for an order, pursuant to CPLR § 3212 granting summary judgment and dismissing the complaint. Plaintiff Burke 2 Physical Therapy, P.C. (hereinafter “Burke”), A/A/O Sterneth Sang (hereinafter “Sang”), cross-moves for an order: pursuant to CPLR § 3211(c) and CPLR § 3212(a) granting summary judgment; denying defendant’s motion; pursuant to CPLR § 3212(g) limiting the issues of fact for trial by finding that the prescribed statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits is overdue; and pursuant to CPLR § 3211(b) to dismiss defendant’s affirmative defenses.

Plaintiff commenced the instant action by filing the summons and complaint on July 2, 2019. Issue was joined on July 31, 2019. Sang allegedly sustained injuries in a motor vehicle accident on September 13, 2018 and defendant was the responsible no-fault insurance carrier. The accident was reported to defendant and a claim number was issued. Sang sought treatment [*2]with Burke on October 3, 2018 and assigned his claims to Burke on October 30, 2018. On September 14, 2018, prior to submission of the claim, an examination under oath (hereinafter “EUO”) of Burke’s owner, John Nasrinpay (hereinafter “Nasrinpay”), was held by defendant regarding claims unrelated to Sang. Nasrinpay’s EUO pre-dated receipt of the bills in dispute in the instant matter. Nevertheless, defendant issued numerous verification requests in this action precipitated by Nasrinpay’s EUO.

At issue in the instant matter are bills for dates of service from October 3, 2018, October 5, 2018, October 30, 2018, October 31, 2018, December 4, 2018, and December 11, 2018. State Farm acknowledged receipt of these claims. State Farm, by letters dated, December 3, 2018, December 17, 2018, January 23, 2019, and January 29, 2019, issued verification requests of the claims seeking production of numerous documents, including tax returns, bank records, and documents related to defendant’s various operating locations. State Farm sent follow-up requests for verification on January 9, 2019, January 23, 2019, February 26, 2019, and March 6, 2019. Plaintiff’s counsel alleges that Burke “replied to every verification request in a timely manner.” Those letters of response to the verification requests and any proof that they were mailed were not attached to the instant motion. State Farm issued denial of claim forms (NF-10s) on April 8, 2019, April 23, 2019, and June 4, 2019.

State Farm contends that it timely requested verifications of the bills at issue in the instant matter, thus tolling their time to pay pursuant to 11 NYCRR § 65-3.5. Moreover, it alleges it properly denied plaintiff’s claims for failure to provide the requested verification within 120 days. Defendant argues that the licensing of a medical provider is a condition precedent to the payment of no-fault benefits, therefore, such verification is relevant to the proof of the claim. Defendant contends that although it “need not demonstrate the ‘good cause’ of its verification requests,” its basis for the requests is substantiated by the affidavit of State Farm’s investigator, Lisa Stockburger. Defendant maintains its verification requests were proper and its denials timely.

In opposition, plaintiff argues that Nasrinpay’s affidavit establishes that plaintiff responded to defendant’s verification requests. Plaintiff alleges that the verification request were “impermissible and improper” as they were discovery requests that do not verify the claim but were “made merely to harass and burden the plaintiff.” In support of its motion and in further opposition to defendant’s motion, plaintiff annexes “Objections to Defendant’s Verification Requests,” undated but served on December 23, 2020, wherein plaintiff’s counsel objected to defendant’s verification and follow-up verification letters during the course of the instant litigation.

An insurer must pay or deny a claim in whole or in part within 30 calendar days after receipt of proof of claim. See 11 NYCRR § 65-3.8(c); Insurance Law § 5106(a). Proof of claim includes “verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.” 11 NYCRR § 65-3.8(a); see New York Univ. Hosp. Tisch Inst. v Govt. Employees Ins. Co., 117 AD3d 1012, 1013 (2d Dept 2014). An insurer can extend or toll its time to pay or deny a claim by forwarding verification forms within 15 business days of receipt of the claim. See 11 NYCRR § 65-3.5(b); Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 563 (2d Dept 2014); Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 (2d Dept 2013). If any of the requested verifications are not “supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested ” 11 NYCRR § 65-3.6(b); [*3]see Westchester Med. Ctr. v Allstate Ins. Co., 112 AD3d 916, 917 (2d Dept 2013).

Although verification of a claim is permitted pursuant to 11 NYCRR § 65-3.5(c), “the no-fault regulations do not specifically define or limit the information or documentation an insurer may request through verification.” Victory Med. Diagnostics, P.C. v Nationwide Prop. and Cas. Ins. Co., 36 Misc 3d 568, 573 (NY Dist Ct 2012). Litigants sometimes refer to a response to a verification request as an “objection letter,” but “[n]either the no-fault law nor the no-fault regulations establish a mechanism or procedure by which a claimant provider can contest or challenge a request for verification on the grounds it is improper, unduly burdensome, unfounded, unnecessary or harassing.” Id. at 573; cf Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 (2d Dept 1999) (holding that “[a]ny confusion on the part of the plaintiff as to what was being sought [in the verification letters] should have been addressed by further communication, not inaction”); Healthy Way Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 58 Misc 3d 137 (App Term 2017). However, a demand for verification of facts can only be made if “there are good reasons to do so.” 11 NYCRR § 65-3.2(c). An insurer “is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” 11 NYCRR § 65-3.5(c). The Superintendent’s regulations provide for agency oversight of insurance carriers, and demand that carriers “delay the payment of claims to pursue investigations solely for ‘good cause’ ” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d 313, 322 (2005); see 11 NYCRR § 65-3.2 (c). In the licensing context, “carriers will be unable to show “good cause” unless they can demonstrate behavior tantamount to fraud.” State Farm Mut. Auto. Ins. Co. v Robert Mallela, 4 NY3d at 322.

11 NYCRR § 65—3.5 (o) provides that a verification letter must be responded to by either submitting “all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply.” If the claimant fails to respond to the verification letters, “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply, provided that the verification request so advised the applicant as required in section 65-3.5(o) of this Subpart.” 11 NYCRR § 65-3.5 (b)(3).

In the instant matter, although the EUO of plaintiff occurred prior to receipt of the claim, the request for verification was sent after the claim was received. Therefore, the verification request tolled defendant’s time to deny the claim. See Clear Water Psychological Services, P.C. v Hereford Ins. Co., 68 Misc 3d 127(A) (App Term 2020). The follow-up verifications letters were also timely. Defendant’s verification letters, in compliance with 11 NYCRR § 65-3.5(o), notified plaintiff that it was required to provide all documents requested or provide written proof of a reasonable justification for its failure to comply.

Notably, plaintiff’s statements fluctuate between arguing that they provided the documentation and that State Farm is not entitled to such documentation. While plaintiff attests that it timely responded to the verification requests, it fails to attach such letters in response to the instant motion. Moreover, the affidavit of Nasrinpay states that he “personally responded and mailed on 01/18/2019, 02/06/2019 and 03/26/19 the verification responses in issue in this case to the address designated by defendant on the verification requests, to the extent such response was proper and in my possession.” Cross-Motion, p 160, ¶ 5. Nasrinpay fails to attach his responses to the verification letters to illustrate what was produced or to provide written proof of a reasonable justification for the failure to comply. Additionally, his affidavit fails to [*4]detail what was allegedly mailed to defendant. Defendant denies having received any such correspondence from plaintiff before issuing the NF-10 denials of its claims.

Furthermore, although 11 NYCRR § 65-3.5(o) provides for a response which allows for written proof of reasonable justification for the failure to comply with a verification request, no such response was submitted in support of this motion. Plaintiff’s counsel submits an “objection” to the verification request, which is not a proper response to defendant’s verification requests as it is not timely pursuant to 11 NYCRR § 65-3.5(o). Moreover, the “objection” appears to reference Mallela materials sought during litigation. The Court notes that the instant action was commenced on July 2, 2019 and plaintiff’s “objection” was served over 18 months after commencement of the action and over 2 years after the initial verification request was made. Therefore, plaintiff failed to submit proof that it complied with §11 NYCRR § 65-3.5(o). Finally, the Court finds the remainder of plaintiff’s arguments to be pro forma, without merit, and specious.

Accordingly, defendant’s motion pursuant to CPLR § 3212 for summary judgement dismissing the complaint is granted in its entirety and plaintiff’s cross-motion is denied as moot.

The foregoing constitutes the decision and order of this Court.

Dated: June 8, 2021
Hon. Gina Levy Abadi
Judge, Civil Court