741615/17

Pryanka Arora, Esq.

Law Office of Natalia Vassilieva, P.C.

3042 Ocean Avenue, 1st Floor

Brooklyn, NY 11235

Lawrence N Rogak, Esq.

Lawrence N Rogak LLC

3355 Lawson Boulevard

Oceanside, NY 11572

RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3, 4

Affirmation in Opposition 5

The Court hereby sua sponte vacates its decision and order dated June 9, 2019, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an [*2]accident which occurred on November 30, 2015 in New Jersey, defendant moves for summary judgment based on a lack of New York insurance coverage as well as for a determination that New Jersey law applies to this action. Plaintiff, a New York corporation which rendered medical services in New York to its assignor, a New York resident, opposes defendant’s motion and cross-moves for summary judgment in its favor seeking payment of bills submitted in the amount of $3,745.37 based on the bills and an affidavit showing that the plaintiff had mailed them to the defendant more than thirty days prior to starting suit and had not received any denials of benefit.

The basis of defendant’s motion is the claim that plaintiff will be unable to submit proof that defendant’s policy covers the subject incident. To maintain a meritorious action, defendant claims plaintiff “must necessarily establish that either 1) the underlying policy under which NYS statutory no-fault benefits are sought contained a mandatory NYS PIP endorsement, and/or 2) that the actual motor vehicle accident giving rise to plaintiff’s claim occurred within New York State.” Defendant also argues that the laws of New Jersey should be applied since “The claimant was a pedestrian struck by a vehicle insured under a New Jersey policy.”

To support these claims, the defendant submits an uncertified copy of a police report purporting to show that the subject accident occurred in New Jersey and an affidavit from its claim representative Ms. Outhouse which simply states that defendant’s policy does not cover the alleged incident based on her review of the file.

As the plaintiff has not objected to the admissibility of the police report, its contents will be considered by the court. See, Bank of NY Mellon v Gordon 171 AD3d 197 [2d Dept 2019]. The police report indicates that the subject accident occurred in New Jersey between a pedestrian who resided in New York and a New Jersey driver driving a vehicle registered in New Jersey.

Plaintiff responds that New York law should apply as it is a New York corporation which rendered treatment to a New York resident in New York. Additionally, the plaintiff argues that the defendant has failed to produce a copy of its policy and thus failed to show its lack of a New York State no-fault endorsement.

New York utilizes the ‘grouping of contacts’ or ‘center of gravity’ analysis as the appropriate approach to resolve choice of law questions in cases premised on breach of contract. The ‘grouping of contacts’ approach seeks to determine which state has the most significant relationship to the contract or the parties. (See Matter of Arbitration between Allstate Ins. Co. (Stolarz), 81 NY2d 219 [1993], revg 178 AD2d 899 [3d Dept 1991]. The court must consider the spectrum of significant contacts, rather than a single possible gratuitous event, in its determination as to which state has the most significant relationship to the parties or the contract. (Id. See also, Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56 [2d Dept 2000]). Among the contacts to be considered are the state where the parties entered into the contract, negotiated and performed the contract, the domicile of the parties, and the place of subject matter of the contract. In the context of insurance contracts, the jurisdiction with the most significant relationship to the transaction and the parties will generally be the jurisdiction which the parties understood was to be the principal location of the insured risk. See Matter of Midland Ins. Co., 16 NY3d 536 [2011], revg 71 AD3d 221 [1st Dept 2010].

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., 38 Misc 3d 140(A) [App Term 2d Dept, 2d, 11th and 13th Jud Dists 2013], the court applied a ‘grouping of contacts’ or ‘center of gravity’ analysis to a first-party no-fault case in which the plaintiff’s assignor was injured in a motor vehicle accident which occurred in New York. The vehicle in question was [*3]being driven by a New Jersey resident who owned the vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York. In that case, the court held that New Jersey law applied.

When dealing with procedural matters, such as the burden of proof and the admissibility of evidence, the law of the forum state applies. (See, Emmons v Country Lincoln Mercury Sales, Inc., 111 AD2d 213 [2d Dept 1985]; Able Cycle Engines, Inc. v Allstate Ins. Co., 84 AD2d 140 [2d Dept 1981]). Contrary to defendant’s contention, as the movant for summary judgment, the burden of proof is on the defendant to establish its policy does not cover the subject incident and that the laws of New Jersey apply to this case.

To prevail, the movant must establish entitlement to judgment as a matter of law by submitting admissible evidentiary proof (Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]), with which includes an affidavit of a person having knowledge of the facts and other admissible evidence (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). Summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. (Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). The court’s function in determining such a motion, is issue finding, not issue determination. (Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]).

In the case at bar, defendant submits no admissible evidence to establish its policy does not cover the subject incident. Ms. Outhouse’s affidavit states defendant’s policy does not cover the subject incident based on her review of the claim file. However, she does not specify what records she reviewed, including whether she even reviewed defendant’s subject insurance policy at issue. Ms. Outhouse further makes no attempt to establish the foundation of any reviewed records nor proffer the records for the court’s review. In fact, Ms. Outhouse does not even state whether she reviewed defendant’s subject insurance policy, nor does she submit a copy in support of defendant’s motion.

The contents of business records are inadmissible without the introduction of the records themselves. (See, Bank of NY Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]), and it is far from clear here what contents of what records Ms. Outhouse relied upon. Accordingly, Ms. Outhouse’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]). Similarly, the defendant’s failure to proffer its insurance policy or any admissible evidence as to its contents leaves open the possibility that the policy covering the subject accident was issued in New York or otherwise contains a New York no-fault endorsement which would permit the application of New York law. The defendant has failed to sustain its burden of proof to establish either that its policy does not cover the subject incident or that the laws of New Jersey apply to this case. Accordingly, defendant’s motion is denied.

Plaintiff seeks summary judgment based upon proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant failed to pay or deny the claim within the requisite 30-day period. Defendant neither rebuts the sufficiency of the proof of claim nor submits either proof of payment or any denials.

In New York, a no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a timely claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the [*4]claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2nd Dept 2006].

Plaintiff’s motion must nonetheless be denied. Although the defendant failed to dispel all issues of fact as to whether this case should be controlled by New Jersey law, its submission of the police accident report without objection by the plaintiff sufficiently raises an issue of fact regarding which state’s substantive law should be applied to this case.

In Advanced Med. Diagnostics of Queens, P.C. v Geico Ins. Co., the court pointed out that a conflict does exist between New York law and New Jersey law, since under New Jersey law, unlike New York Law, a provider has the burden to establish that the provided services were medically necessary, and this defense is non-precludable, that is, an insurer can raise a lack of medical necessity defense at any time.

Under New Jersey law, as the defendant has failed to show that the plaintiff’s assignor was, under a different insurance policy, a “named insured” or “a resident relative in [a] named insured’s household,” as those terms are used in N.J. Stat. § 39:6A-4.2, this case would fall under N.J. Stat. § 39:6A-4 which provides that no-fault (PIP) coverage is afforded to pedestrians injured by a qualifying automobile. See e.g., Lumpkins v Mkt. Transition Facility of New Jersey, 283 NJ Super 181 [Super Ct 1995]. Plaintiff has shown by admissible evidence that it gave defendant timely notice within twenty-one days of commencement of treatment as required by N.J. Stat. § 39:6A-5(a). Plaintiff additionally has shown that its bills are overdue, both as that term is defined by N.J. Stat. § 39:6A-5(g) and by our own 11 NYCRR 65-3.8(a). Plaintiff has not, however, submitted evidence proving the medical necessity of the services it rendered.

Accordingly, plaintiff’s cross-motion is granted only to the extent that it has proven that bills totaling $3,745.37 were timely submitted to the defendant and that no denial was issued. Defendant has raised a triable issue of fact as to whether New Jersey law should apply to this case. Should the defendant prove at trial that its policy in question contains only a New Jersey no-fault (PIP) endorsement and not a New York no-fault endorsement, then the plaintiff shall bear the burden of proving the medical necessity of the services it rendered.

Defendant’s motion is denied and plaintiff’s cross-motion is granted only to the extent indicated. This constitutes a decision and order of the court.

Dated: October 22, 2019

________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

744329/16

Attorney for Plaintiff
Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Ave., 3rd Floor, Ste. 7
Brooklyn, NY 11235
(718) 975-2035

Attorney for Defendant
Katherine A. Hazelton, Esq.
Law Office of Goldstein & Flecker
2 Huntington Quadrangle, Ste. 2N01
Melville, NY 11747
(516) 714-7927

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

SUR REPLY

This is an action by Plaintiff medical provider to recover assigned first-party no-fault benefits for treatment provided to its assignor, David Cenevil (Injured Party). Plaintiff argues that it met its prima facie burden and requests that summary judgment be granted in its favor pursuant to CPLR 3212. Defendant opposes Plaintiff’s motion and cross moves for dismissal on grounds that the injuries were the result of an intentional assault when the insured, Bernard Foy (Insured), used his vehicle as a weapon to deliberately strike the Injured Party. Accordingly, Defendant asserts that the Injured Party’s injuries were not the result of an accident, but an intentional act which is not a covered loss under 11 N.Y.C.R.R. § 65-2.2(a). This court agrees.

In New York, an insurer must provide no-fault insurance benefits for injuries resulting from an accident. 11 N.Y.C.R.R. § 65-2.2(a), requires coverage for “personal injuries caused by an accident arising out of the use or operation of a motor vehicle” (emphasis added). In order for an insurer to be relieved of its obligation to cover a loss, it must come forward with evidence to demonstrate that the injuries were a result of an intentional or deliberate action (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d 349 [2011]; Liberty Mut. Ins. Co. v. Goddard, 29 AD3d 698 [2d Dept. 2006]). An insurer must establish its “founded belief” that the incident was an intentional act by a preponderance of the evidence (A.B. Med. Services PLLC v. Eagle Ins. Co., 3 Misc 3d 8, 9 [2d Dept. 2003]; V.S. Med. Servs., P.C. v. Allstate Ins. Co., 25 Misc 3d 39 [2d Dept. 2009]), and can meet its burden with circumstantial evidence (State Farm Mut. Auto. Ins. Co., v. Laguerre, 305 AD2d 490 [2d Dept. 2003]).

Here, Defendant has met its burden through substantial documentary evidence including a police accident report, a criminal complaint an arrest report and an affidavit from Defendant’s Special Investigation Unit (SIU) investigator Doug Pfleging. These documents consistently support a clear finding that the incident which lead to the Injured Party’s injuries was a result of an intentional act. According to the police accident report, the Insured deliberately hit the Injured Party with his vehicle: “At TPO witness stated that deft had a verbal dispute with his step son [sic]. Witness stated that deft (step father) used his vehicle to hit c/v and fled the accident scene” (Deft. Exh. B). Pursuant to the arrest report, the Insured was subsequently arrested on several charges including felony assault with intent to cause serious physical injury and felony assault for using his vehicle as a weapon (Deft. Exh. C).

In New York, to determine whether an event was accidental “it is customary to look at the casualty from the point of view of the insured, to see whether or not it was unexpected, unusual and unforeseen'” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Miller v. Continental Ins. Co., 40 NY2d 675, 677 [1976]). The view point of the injured party is not considered “[b]ecause an injury is always fortuitous to a non-consenting victim” (State Farm Mut. Auto. Ins. Co. v. Langan, 16 NY3d at 355 quoting Michaels v. City of Buffalo, 85 NY2d [*2]754, 759 [1995]). The same is true when the injured party seeks benefits under the policy’s uninsured motorist endorsement (Castillo v. Motor Vehicle Indemnification Corp., 161 AD3d 937 [2d Dept. 2018]; Utica Mut. Ins. Co. v. Burrous, 121 AD3d 910 [2d Dept. 2014]). Here, both the witness’ statement and the testimony from the Injured Party are consistent with a finding that from the Insured’s perspective, the incident was a deliberate act meant to cause injury (Deft. Exh. D; see generally McCarthy v. Motor Vehicle Indemnification Corp., 12 NY2d 922 [1963]).

Plaintiff’s arguments concerning its prima facie case and timely denial of the claims are irrelevant. Defendant insurer “is not precluded, despite untimely disclaimer, from raising as a defense its denial of liability on the ground that the services rendered to treat the injuries at issue did not arise from a covered accident” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d 195, 201 [1997]). Furthermore, Defendant’s “strict compliance with the time requirements of both statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (General Hospital v. Chubb Group of Insurance Companies, 90 NY2d at199).

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Defendant’s cross motion to dismiss is granted.

This constitutes the decision and order of this court.

September 4, 2019
Brooklyn, NY
ENTER.
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

732771/17

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

Attorney for defendant
Lawrence N. Rogak, Esq.
Lawrence N. Rogak LLC
3355 Lawson Boulevard
Oceanside, New York 11572

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

Notice of Motion and Affirmation in Support 1,2

Notice of Cross-Motion and Affirmation in Support 3,4

Affirmation in Opposition to the Cross-Motion 5

The Court hereby sua sponte vacates its decision and order dated November 15, 2017, and substitutes the following:

In an action to recover assigned first-party no-fault insurance benefits arising from an accident which occurred on October 1, 2015, defendant moves for summary judgment based on plaintiff’s assignor’s alleged failure to appear for an examination under oath (“EUO”) and upon the defense of policy exhaustion. Plaintiff cross-moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b).

It is well settled that summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman supra at 404).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]).

EUO NON

APPEARANCE DEFENSE

While plaintiff’s non-appearance at an EUO vitiates defendant’s obligation to provide coverage (see Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2d Dept 2014]).

Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant’s standard office practices and procedures designed to ensure proper mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008]). Defendant’s affidavit submitted in the case at bar, fails to establish that the described procedures was designed to ensure that the EUO letters were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept [*2]2015]).

To establish the proper mailing of the EUO requests, defendant submits an affidavit from its claim representative, Christina Valentin. Ms. Valentin states that an EUO notice was sent to plaintiff’s assignor, on December 9, 2015, scheduling the EUO for January 6, 2016; and upon assignor’s non-appearance, a follow up notice was sent on January 7, 2016 re-scheduling the EUO for February 9, 2016. Ms. Valentin describes the documents which purport to the be the notices as ” true and accurate copies of the scheduling notices sent by the Law offices of Lawrence N. Rogak LLC” to plaintiff’s assignor.

Contrary to Ms. Valentin’s statement, however, the EUO notices which were attached to defendant’s motion are not generated by the Law Office of Lawrence N. Rogak LLC, but by the Law Firm of Milber Makris Plousadis & Beiden, LLP. Ms. Valentin’s assertions are further erroneous in that the notices seek an EUO of the plaintiff’s employee, Dr. Darren T. Mollo, DC, and not of plaintiff’s assigner, who notably is not even among the named claimants listed in the notices. Thus, defendant fails to establish that it requested an EUO of plaintiff’s assignor, and further, that it accurately addressed and mailed the request to him. Each of said deficiencies, warrants denial of defendant’s motion.

In addition, defendant fails to meet its burden of showing that plaintiff’s assignor failed to appear for the EUOs. (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, to establish burden of plaintiff’s failure to appear for a scheduled EUO, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (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 the instant matter, the only indication of plaintiff’s assignor’s nonattendance at the EUO is defense counsel’s conclusory affirmation in support of the instant motion which is devoid of evidence of his personal knowledge of the alleged non-attendance. Counsel neither indicates whether he was assigned to conduct the EUO nor whether he was present at the EUO. Accordingly, defendant’s motion is further denied on the basis of failure to establish the assignor’s EUO non-appearance.

Moreover, defendant fails to show the timeliness of its denial. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, (11 NYCRR 65-3.8(a)(1)),

According to the denial, the “final verification” requested was on January 31, 2016. Yet, the moving papers contain no verification request, or any document dated January 31, 2016. As discussed above, the only verification requests annexed to defendant’s papers pertain to claimants whose treatment is not at issue in the instant action.

As defendant has failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO request, the nonappearance of the plaintiff’s assignor at the EUOs and the timeliness of its denial, its motion for summary judgment, based on the EUO [*3]nonappearance is denied.

POLICY EXHAUSTION DEFENSE

Defendant also seeks to dismiss the complaint on the basis that its policy limits have been properly exhausted.An insurer is not required to pay a claim where the policy limits have been properly exhausted (Hospital for Joint Diseases v. State Farm Mut. Auto Ins. Co., 8 AD3d 533 [2nd Dept., 2004]). An insurer’s payment of full monetary limits set forth in the policy, terminates its duties under the contract (Presbyterian Hosp. in City of New York v. Liberty Mut. Ins. Co., 216 AD2d 448 [2nd Dept., 1995]).

Moreover, when an insurer receives claims for more than $50,000, payments for claims that are submitted prior to the exhaustion of the $50,000 shall be made in the order in which each service was rendered or each expense was incurred (11 NYCRR 65-3.15; Alleviation Medical Services, P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App. Term, 2nd Dept., 2d, 11th & 13th Jud. Dists., 2017]).

In the case at bar, to demonstrate the policy’s exhaustion based on priority of payment when defendant received the bill, defendant relies on a payment “ledger” which it contends is admissible based on its claim examiner’s statement that the document is “a true and accurate copy of the payment ledger maintained on this claimant.” Defendant, however does not satisfy the evidentiary requirements of CPLR §4518 absent information regarding who or by whom the ledger was created or maintained, or whether the data in the ledger was recorded contemporaneously or soon after the occurrence. As defendant must prove its defense in admissible form, the failure to establish the evidentiary foundation of the ledger, which is the essence of its policy exhaustion defense, warrants denial of its motion.

Aside from its inadmissibility, the ledger’s ambiguity, further prevents defendant from demonstrating the exhaustion defense. The ledger does not specify when defendant received any of the prior bills leading to the exhaustion of the policy, but contains vague headings such as ‘paid date,’ ‘service period start’ and ‘service period end’ without proof that any of the headings represent the date that defendant in fact received or paid the bill at issue.

Finally, defendant fails to establish that its exhaustion of policy defense was based on proper priority of payment of claims. The term “claims,” in the priority of payment regulation excludes claims that are incomplete because verification requests are outstanding (Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, while an insurer awaits verification of an unverified claim, it may pay subsequently received verified claims, even if that will result in exhaustion of the policy before the requested verification is finally received (Id.).

In the instant matter, defendant admits receipt of the bills at issue on December 16, 2015, when, as per the ledger, the entire $50,000 policy was still available to pay claims since no claims had been yet been paid. Since defendant has failed show that the 30-day period it had to pay the bill was tolled by a properly mailed verification request or by non-compliance with such verification, it failed to justify its nonpayment within the 30-days.

Defendant has failed to establish as a matter of law either the defense of EUO non-appearance or that of policy exhaustion. Thus, its motion for summary judgment is denied.

PLAINTIFF’S CROSS-MOTION

In opposition to the plaintiff’s cross-motion for summary judgment, defendant attaches a copy of a decision in Budget Truck Rental, LLC v. Mollo, Index No.: 150666/15 [Sup. Court, NY County, Lebovits, J.] which included a finding that the time that plaintiff in this case was not [*4]properly incorporated when it submitted its billing in that case which arose from a November 7, 2013 accident and therefore not entitled to payment for those bills.

If it is proven in this case that the plaintiff was ineligible to receive payment as of the date services were rendered, that would constitute a defense. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]) Although the defendant presents no denial of claim on this basis of improper or fraudulent incorporation of the plaintiff, it is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial. (Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept 2012]). Accordingly, there are material issues of fact as to plaintiff’s corporate status at the time that services were rendered necessitating the denial of plaintiff’s cross-motion.

All of the motions before this court are denied with one exception. Plaintiff’s cross-motion pursuant to pursuant to CPLR 3212(g) is granted only to the extent that it has been established that the bills at issue were mailed to and received by the defendant.

Dated: May 17, 2019
______________________
ODESSA KENNEDY
Judge of the Civil Court

007745/11

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

Attorney for the Defendant: Law Offices of Aloy O. Ibuzor, 485 Lexington Avenue, 7th Floor, New York, New York 10017

This is an action seeking reimbursement for medical services provided by Plaintiff under the No-Fault system. By Notice of Motion dated February 15, 2018, Plaintiff moves to vacate an order of administrative dismissal pursuant to CPLR 3215(c) dated March 30, 2017 and for leave to enter a default judgment against Defendant. Defendant opposes the motion.

The history of this case which culminated in the CPLR 3215(c) dismissal commenced with the timely purchase of an index number on January 26, 2011. Plaintiff, however, did not serve the summons and complaint on Defendant until June 5, 2013, over two years after the statutory 120-day service period had expired. Plaintiff attributes the delay to law office failure explaining that the office was unaware that it had failed to serve the summons and complaint due to an error caused by transferring files from an old management system to a new system between 2011 and 2012. In 2013, Plaintiff discovered that it did not possess an affidavit of service relative to this case and a process server was sent to serve Defendant in June of that year. Defendant, to date, has not answered. There is no indication in either the record or the parties’ moving papers that Plaintiff ever moved pursuant to CPLR 306(b) for an extension of time to effectuate service.

Plaintiff claims that the office filed a motion for a default judgment in July of 2014. Plaintiff states that because Defendant was personally served with process on June 5, 2013 and [*2]the affidavit of service was filed on June 6, 2013, it had until July 11, 2014 to move for a default. However, according to Civil Court records maintained for this index number, the motion for a default judgment was filed on August 6, 2014. On that same day, the court issued a “Judgment Rejection Notification.” The reason stated on the notice was “late service.” Plaintiff acknowledges timely receipt of this notice but did not move to cure the defect, claiming that an upgrade in its computer system resulted in the failure to alert a paralegal to draft a motion.

Plaintiff took no further action in this case and, in May of 2017, Plaintiff’s office learned that the action was administratively dismissed by an order of Judge Richard Montelione dated March 30, 2017. The order states:

“[p]laintiff(s) commenced this action to recover assigned first party no-fault benefits. Defendant failed to answer and more than one year had passed. There being no sufficient cause being shown why the complaint should not be dismissed, pursuant to CPLR 3215(c) it is therefore ordered, that the complaint is dismissed.”

Plaintiff now moves to vacate the administrative dismissal arguing that its motion should be granted because the court did not give it prior notice of the impending administrative dismissal. Plaintiff asserts that the court’s failure to give notice deprived the attorneys of an opportunity to be heard. Plaintiff further claims that this lack of notice constitutes its reasonable excuse for the failure to appear on March 30, 2017. Plaintiff also seeks to revive the August 6, 2014 application for a default judgment which it insists the court improperly rejected.

It is noted that the administrative dismissal order of March 30, 2017 was issued pursuant to CPLR 3215(c). The Second Department holds that “CPLR 3215(c) provides that ‘[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned … unless sufficient cause is shown why the complaint should not be dismissed’ ” (Myoung Ja Kim v. Wilson, 150 AD3d 1019, 1020 [2d Dept. 2017] quoting CPLR 3215[c]). This statute is strictly construed, as “[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 AD3d 301, 307—308 [2d Dept. 2011]; see HSBC Bank USA, N.A. v. Grella, 145 AD3d 669, 671 [2d Dept. 2016]).

Moreover, CPLR 3215(c) expressly provides that a court may dismiss a complaint as abandoned “upon its own initiative or on motion.” The statute further provides, however, that the failure to timely seek a default may be excused if “‘sufficient cause is shown why the complaint should not be dismissed'” (HSBC Bank USA, N.A. v. Grella, 145 AD3d at 671, quoting CPLR 3215[c]). To establish the sufficient cause required by CPLR 3215(c), “the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action” (Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764 [2d Dept. 2015]; see Wells Fargo Bank, N.A. v. Bonanno, 146 AD3d 844, 845—846 [2d Dept. 2017]). “‘The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion [*3]court'” (Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 752 [2d Dept. 2014] quoting Giglio v. NTIMP, Inc., 86 AD3d at 308; see U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852 [2d Dept. 2016]). While a court has the discretion to accept law office failure as a reasonable excuse, such excuse must be supported by detailed allegations of fact explaining the law office failure (see CPLR 2005; CEO Bus. Brokers, Inc. v. Alqabili, 105 AD3d 989, 990 [2d Dept. 2013]; HSBC Bank USA, N.A. v. Wider, 101 AD3d 683 [2d Dept. 2012]; Ibrahim v. Nablus Sweets Corp., 161 AD3d 961, 963 [2d Dept. 2018]).

Plaintiff’s claim that the court was required to give notice prior to the CPLR 3215(c) dismissal based on Rhodehouse v. CVS Pharmacy, Inc., 151 AD3d 771 (2d Dept. 2017), is erroneous. The dismissal in that case was made pursuant to CPLR 3216, not CPLR 3215(c), which expressly provides that a court may dismiss an action as abandoned “upon its own initiative or on motion” (Ibrahim v Nablus Sweets Corp., 161 AD3d at 961).

This case was properly dismissed, sua sponte, pursuant to CPLR 3215(c) as the case lay dormant in the court system without joinder of issue and without a default judgment against Defendant for over three years. Furthermore, this application must be denied as Plaintiff does not submit an affidavit of merit and the excuse of law office failure is vague, conclusory, and unsubstantiated (see U.S. Bank, N.A. v. Dorvelus, 140 AD3d at 852; Baruch v. Nassau County, 134 AD3d 658, 659 [2d Dept. 2015]; Mattera v. Capric, 54 AD3d 827, 828 [2d Dept. 2008]; Ibrahim v. Nablus Sweets Corp., 161 AD3d at 963; Private Capital Group, LLC, v. Hosseinipour, 2019 WL 1141605 [2d Dept. 2019]).

This case has been riddled with procedural defects since inception. Although Plaintiff purchased the index number within the statute of limitations on January 26, 2011, the summons and complaint were not served on Defendant until June 5, 2013, over two years later. At no time did Plaintiff move for an extension of time to serve Defendant pursuant to CPLR 306(b) and this defect continues to plague this case. Plaintiff offers no reasonable excuse as to why it filed the motion for a default judgement over one year after Defendant defaulted in answering. It is not clear whether the court rejected the default papers because Plaintiff served Defendant beyond the statutory 120-days of filing without leave of court or because Plaintiff filed the motion late. In either case, it is clear that the court rejected Plaintiff’s default judgment as untimely and no motion was made at that time to cure the rejected papers.

All of the above demonstrates a general pattern of neglect for which Plaintiff has consistently failed to provide a reasonable excuse or otherwise remedy. Considering the history of procedural defects, this court cannot accept Plaintiff’s vague excuse that the implementation of a new case management and computer system were valid reasons for the office failures over the years and, specifically for the failure to timely file for default judgment which led to the administrative dismissal of March 30, 2017

Accordingly, Plaintiff’s motion to vacate the March 30, 2017 order of administrative dismissal pursuant to CPLR 3215(c) is denied and the complaint is dismissed with prejudice.

This constitutes the decision and order of this court.

April 1, 2019
Brooklyn, NY
ENTER
__________________________________
CONSUELO MALLAFRE-MELENDEZ
Judge, Civil Court

723761/17

Attorney for Plaintiff:

David Landfair, Esq.

Kopelevich and Feldsherova

882 Third Avenue, 3rd Fl., Ste Ne1

Brooklyn, New York 11232

Attorney for Defendant:

Jeffrey S. Siegal

Bruno, Gerbino & Soriano, LLP

445 Broad Hollow Road

Melville, New York 11747

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1, 2

Notice of Cross-Motion

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, defendant moves for summary judgment pursuant to CPLR 3212, based on plaintiff’s alleged failure to appear for an Examination Under Oath “EUO.”

Defendant received plaintiff’s bills on March 24, 2017; and on March 27, 2017, sent plaintiff a letter scheduling an EUO for April 10, 2017. Defense counsel claims plaintiff failed to appear for the EUO, and that he memorialized the non-appearance by placing a statement on the record.

Defendant states that on April 12, 2017, it sent a follow up letter rescheduling the EUO to April 26, 2017. Plaintiff again failed to appear for the EUO, and defense counsel memorialized the nonappearance on the record.

On May 4, 2017, defendant denied the bills at issue based on plaintiff’s failure to attend an EUO, which it contends, absolves defendant of the responsibility to provide coverage.

The appearance of plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, 2006 NY Slip Op 09604 [2nd Dept 2006]); thus, defendant is correct that plaintiff’s failure to appear vitiates insurer’s obligations under the policy (see Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 584 N.Y.S.3d 607 [2nd Dept 1992]).

However, to demonstrate entitlement to summary judgement based on a provider’s failure to appear for an EUO, defendant must prove through admissible evidence, it had twice duly demanded an EUO from the provider, that the provider failed to appear, and defendant issued a timely denial. (See Island Life Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 61 Misc 3d 136(A), 2018 NY Slip Op 51552[U] [App. Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018], citing Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2nd Dept 2014]).

In the instant matter, defendant argues plaintiff did not attend any of the two EUOs scheduled. However, defendant has the burden to establish, through admissible evidence, that that the EUO scheduling letters, and defendant’s denials, were properly mailed to the plaintiff. (See Parisien v Maya Assur. Co., 59 Misc 3d 146(A), 2018 NY Slip Op 50766(U) [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2018]; L.Z.R. Raphaely Galleries, Inc. v Lumbermens Mut. Cas. Co., 191 AD2d 680, 595 N.Y.S.2d 802 [2nd Dept 1993]).

To establish the admissibility of the two scheduling letters, serving as the basis of defendant’s motion, defendant the must prove that the documents were (1) “made in the regular course of defendant’s business” and (2) that “it was the regular course of business of the defendant to make” the documents at the time or within reasonable time after the event reflected in the documents. (See CPLR 4518(a)).

To fulfill the requirements of CPLR 4518 (a), defense counsel states that the EUO scheduling letters were created in the regular course of business of his law firm, which however, satisfies only the first prong of CPLR 4518(a). The second prong of the statute is not satisfied, as counsel does not state or establish that “it was the regular course of his law firm to make” the documents. Further, counsel represents that the letters were created by “an individual with knowledge” without, however, providing any information about the person, the basis of the person’s knowledge, whether the individual was an employee of defense counsel, or created the letters, in the regular course of business of defendant’s law firm. Defendant’s failure to satisfy the requirements of CPLR 4518(a), renders the EUO scheduling letters, inadmissible, and warrants denial of the motion, as defendant fails to establish as a matter of law that it timely requested the EUOs.

Had defendant established the evidentiary foundation of the EUO letters, it’s motion would still be denied, as it further fails to establish that the EUO scheduling letters were properly addressed and mailed to the plaintiff.

To establish entitlement to summary judgment, defendant must prove that it had a procedure designed to ensure that the EUO letters and denials were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 [*2]AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept 2015]).

In the case at bar, defense counsel states that an individual affixes “the proper postage to the envelope containing the EUO request letter.” However, the statement is conclusory, as counsel provides no information as to whether the envelopes are addressed by a computer, machine, and/or by an employee; how the envelopes are addressed to ensure the accuracy of the recipient’s address, and the method by the envelopes are weighed and affixed with proper postage. Accordingly, defendant fails to establish its proper mailing of the EUO scheduling letters.

With respect to the mailing of the denials, defendant’s claims adjuster states they were properly mailed to the plaintiff, as the “recipient’s address” is printed on the denial, and on the envelope containing the denial.

However, the claims adjuster fails to provide any information as to how and by whom the names and the proper addresses of the recipient, are obtained and printed on the denial, and on the envelope containing the denial. Nor does defendant’s adjuster establish that defendant’s mailing practices are designed to ensure that the envelopes are correctly addressed. Thus, defendant’s motion is further denied as defendant failed to show that it correctly addressed the denials to the plaintiff.

In addition, there is no evidence establishing that defendant affixed proper postage on the envelopes bearing the denials. Defendant’s claims adjuster concludes that proper postage is “applied” to the envelopes containing the denials, but fails to provide any information regarding the individual, if any, who applies the postage, whether the postage is applied by a computer, a machine, or the method by which proper postage is determined.

Based on the foregoing, defendant failed to eliminate all triable issues of fact in connection with establishing defendant’s proper mailing of the EUO scheduling letters and denials. As defendant did not establish its entitlement to summary judgment, irrespective of the sufficiency of plaintiff’s opposition (see Alverez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), its motion is denied.

Dated: March 28, 2019

_________________________________

HON. ODESSA KENNEDY

Judge of the Civil Court

CV-735802/17

Attorney for plaintiff
Damin J. Toell, Esq,.
Law Offices of Damin J. Toell P.C.
P.O BOX 245112
Brooklyn, New York 11224

Attorney for defendant
Desiree Ortiz Esq.,
Robyn M. Brilliant P.C.
333 West 39th Street, Suite 400
New York, New York 10018

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action by a provider to recover assigned first-party no-fault benefits for breach of contract, defendant moves for an order dismissing the action pursuant to CPLR 3211(10) for failure to join a necessary party, or in the alternative, an order extending defendant’s time to interpose an answer pursuant to CPLR 2004.

Defendant claims that the assignor, Mikhail Soldatov, while operating his own vehicle, was involved in a motor vehicle incident with another vehicle, resulting in injuries which were treated by the plaintiff.

Defendant moves to dismiss the complaint based on plaintiff’s failure to join a necessary party, which defendant argues is the insurance carrier for Soldatov’s vehicle. Defendant contends that it never issued a liability insurance policy to Mr. Soldatov, but that it was the insurer of the [*2]other vehicle involved in the accident. Defendant argues that since Mr. Soldatov was not an occupant of the vehicle insured by defendant, defendant has no duty to provide Mr. Soldatov no fault coverage.

In opposition, plaintiff contends that the Court lacks subject matter jurisdiction to hear the defense that an insurance carrier other than the defendant is responsible for plaintiff’s claims. The defense, as per plaintiff, involves the priority of payment of insurance carriers, which must be resolved by arbitration, pursuant to 11 NYCRR 65-4.11(a)(6), which states “Any controversy between insurers involving the responsibility or obligation to pay first part benefits is not a coverage questions and must be submitted to mandatory arbitration.”

Plaintiff’s claim that the court lacks jurisdiction is unavailing. The priority of payment among insurance carries, applies to an applicant who is an “eligible injured person” under applicable insurance policies including defendant’s policy.

In the case at bar, plaintiff’s counsel submits no evidence that Mr. Soldatov’s vehicle was insured by defendant, or that Mr. Soldatov is otherwise entitled to receive no fault coverage from the defendant. Absent evidence that Soldatov is an “eligible injured person” under defendant’s policy, the priority of payment analysis under 11 NYCRR 65-4.11(a)(6) is not triggered or applicable herein.

In contrast, defendant provides an affidavit which unequivocally states it never insured the vehicle owned and operated by Mr. Soldatov. Defendant contends that the insurer of the Soldatov vehicle at the time of the incident, not the defendant, is the carrier responsible for providing Soldatov no-fault benefit. (See 11 NYCRR 65.1(d)(c), a person not an occupant of the vehicle defendant insured at the time of the incident, is not an “eligible injured person” under defendant’s policy).

A party may move for a judgment dismissing the action on the ground that the court should not proceed in the absence of a person who should be a party. (see CPLR 3211). In the instant action, defendant has submitted evidence that it did not insure the Soldatov vehicle.

However, plaintiff argues that defendant’s claim that another carrier insured the vehicle occupied by Soldatov at the time of the incident must be rejected, as the claim is based on the an uncertified, police report, which is an inadmissible hearsay. Absent the police report, plaintiff argues, defendant would have no basis to conclude that Soldatov occupied his own vehicle at the time of the incident.

While a police report is inadmissible unless the report constitutes a hearsay exception. (see Memenza v Cole, 131 AD3d 1020), a report based on the officer’s personal observations in carrying out her duties, is admissible as a business record (CPLR 4518 (a); Wynn v Motor Veh Acc Indem Corp 137 AD3d 779 [2d Dept 2016]).

In the case at bar, the police officer was under a business duty to obtain the names of the owners and occupants of the vehicles involved in the incident, which we can infer were based on the police officer’s observation. However, as the police report annexed to defendant’s motion is not uncertified, it is inadmissible. (See CPLR 4518 (c) a police report may be admitted as proof of the facts recorded therein only if it is certified).

Although the police report may not be admitted into evidence (CPLR 4518 (c)), the Court notes that plaintiff has not presented any evidence to dispute the truthfulness of the officer’s presumed observation that Soldatov was the operator of his own vehicle at the time of the incident. (See Wynn v Motor Veh Acc Indem Corp 137 AD3d 779; Clear Water Psychological Servs. PC v American Tr. Ins. 54 Misc 3d 915). Accordingly, defendant’s motion to interpose an [*3]answer is granted.

In its reply, defendant further argues that plaintiff did not provide it with written notification of the incident. Under 11 NYCRR 65-1.1(d), coverage is precluded absent written notification of the accident by the assignor or her representative within 30 days after the incident.

However, defendant’s motion is based on plaintiff’s failure to sue the proper party and failure to join a necessary party, and not on violation of the requisite 30-day rule. Accordingly, the court will not consider the above argument, as same is raised in defendant’s reply (Matter of Forest Riv., Inc. v Stewart, 34 AD3d 474 [2006]) and is further, not enumerated as a basis of defendant’s instant motion to dismiss.

Based on the foregoing, defendant’s motion is granted to the extent that defendant may interpose an answer within 30 days, raising all applicable defenses.

Dated: March 22, 2019
Brooklyn, New York
_______________________
HON. ODESSA KENNEDY
Judge of the Civil Court

714648/16

For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040

For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490

Plaintiff’s motion and defendant’s cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):

Title Number

Plaintiff’s Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1

Defendant’s Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2

Plaintiff’s Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3

In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff’s [*2]purported failure to appear for four Examinations Under Oath (“EUO”) or alternatively, based upon defendant’s founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.

Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff’s assignor’s purported non-appearances.

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).

Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of “the fact or [a] founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke’s Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). “[A]n insurer’s evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party’s conduct ‘may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'” (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff’d, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).

Upon review of defendant’s EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.

Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 ^[FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant’s founded belief is based upon the inconsistent testimonies between the parties.

Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant’s proofs are insufficient to raise a triable issue of fact.

Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff’s employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).

Therefore, based upon the foregoing, defendant’s motion for summary judgment is denied. Plaintiff’s cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys’ fees and costs.

This constitutes the Decision and Order of the court.

Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.

Footnotes

Footnote 1:Defendant demonstrated its compliance with CPLR 3116 through the affidavits of service of Darryl Pierre, an employee of Abrams, Cohen & Associates, who was retained by defendant to schedule and conduct Examinations Under Oath.

718659/17

For plaintiff:
David Landfair Esq.
Kopelevich & Feldsherova PC
241 37th Street, Suite B439
Brooklyn, NY 11232

For defendant:
Allan Hollander, Esq.
Bruno, Gerbino & Soriano, LLP
445 Broad Hollow Road, Suite 220
Melville, NY 11747

RECITATION, AS REQUIRED BY CPLR2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion

Answering Affidavit 2

Reply Affidavit

In this action to recover first party no fault benefits, defendant moves for an order granting summary judgment and dismissing the complaint based on plaintiff’s failure to respond within 120 days to defendant’s initial request for verification.

In support of the motion, defendant submits the affidavits of its claim examiner in New York, Ms. McAndrews, and an employee of Auto Injury Solutions “AIS,” in Alabama, Ms. Ulmer. AIS is retained by defendant to receive and disseminate incoming mail related to no fault claims made against defendant, and, to mail medical providers or their assignees, verification requests which claims adjusters in New York electronically transmit to AIS. Ms. Ulmer submits two different affidavits, both dated August 4, 2017, which set forth AIS’s procedure for mailing verification requests, and procedure for documenting its receipt of incoming mail. Ms. McAndrews’ affidavit describes defendant’s procedures for electronically preparing and transmitting to AIS, defendant’s requests for verifications and denials.

Summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]). Hence, the court’s function in determining such a motion, is issue finding, not issue determination. (Id. Sillman at 395).

To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]).

“A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570, 774 NYS2d 72 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]).

In the instant action, the basis of defendant’s motion, to wit, plaintiff’s failure to provide requested verifications, requires defendant to unequivocally prove by admissible evidence that it did not receive the requested verification. Defendant’s conclusory denial of receipt, is insufficient to make out prima facie showing of defendant’s entitlement to summary judgment. (See Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 36 N.Y.S.3d 46 [App Term, 2nd Dept 2016]).

While any mail containing plaintiff’s response to verification request would have been received by AIS in Alabama, Ms. McAndrews, defendant’s adjuster in New York, is the only affiant who states that AIS did not receive response to the verification requests, absent any evidence of her personal knowledge of AIS’s incoming mail procedures. Without demonstrating her personal knowledge of AIS’s internal mailing practices, Ms. McAndrew’s assertion that AIS did not receive verification responses lacks probative value. (see J.O.V. Acupuncture, P.C. v Amex Assur. Co., 55 Misc 3d 127[A], 55 N.Y.S.3d 692 [App Term, 1st Dept 2017]).

Ms. Ulmer, the affiant purportedly knowledgeable of AIS’s mailing procedures, states that she conducted a diligent search of the records in possession of AIS regarding the instant matter. She then lists the records, which she states are “annexed hereto,” but does not identify any exhibit, to which the described records are attached. Rather, there are some exhibits to the motion that contain records, which only defense counsel references in his affirmation. Defense counsel does not submit proof however, that the records annexed to those exhibits, are the records referenced in Ms. Ulmer’s affidavit, and that those records are all the documents Ms. Ulmer’s search had yielded.

Absent admissible evidence that the documents contained in the exhibits represent the totality of all documents obtained by Ms. Ulmer, defendant fails to establish, through any exhibit, the nature and the extend of the records that are in AIS’s possession.

Furthermore, Ms. Ulmer’s affidavit, describing the records she had obtained through her search, is ambiguous and insufficient to establish defendant’s burden that AIS has not received response to the verification requests.

Ms. Ulmer’s states that her “investigation revealed the following:” which she then attempts to numerically describe. Yet, Ms. Ulmer’s numeric description refers only to events, not the essence of the document necessary for its identification. Immediately appearing after the number one, the affidavit states: “document was received by AIS on 1/18/2017,” after number two, that “the document was indexed,” following numbers four and the five that “copies of EOR and NF10 were sent to the provider” and “to the assignor.”

As to item number three, Ms. Ulmer states that “the charges listed on the bill totaled $1039.69″ without providing any further details.

The inherent vagueness of Ms. Ulmer’s affidavit in her description of the records she had obtained, undermines defendants’ attempt to prove that AIS has not received response to the verification requests.

Moreover, while Ms. Ulmer could have avoided the ambiguity by unequivocally stating that her search did not reveal any response to verification requests, Ms. Ulmer, in contrast to Ms. McAndrews, does not make any such statement. Nor does she state that the records she attempted to describe, are the only records in AIS’s possession.

Furthermore, the ambiguous affidavit becomes evidently inaccurate, when Ms. Ulmer incorrectly states “all the documents” (including the bill prepared by plaintiff in the sum of $1039.69) were “prepared” in the regular course of” business of AIS, underscoring the unreliability the affidavit.

The Court further notes that Ms. Ulmer submits two distinct affidavits that are both executed in Alabama on August 4, 2017. CPLR 2309(c) states that an oath taken outside of New York State must be accompanied by a certificate, commonly referred to as “certificate of conformity” attesting that the oath that was taken in the foreign state was done so in accordance with the laws of that jurisdiction or of New York.

Defendant fails to produce an original “certificate of conformity” for either affidavit. Instead, defendant annexes to both affidavits identical copies a single certificate of conformity. Even, should the court decide to accept copies of the certificate of conformity in lieu of the original, defendant’s failure to provide copies of two separate certificates of conformity for each affidavit, renders the affidavits inadmissible as a matter of law.

Based on the foregoing, defendant failed to establish its entitlement to summary judgement by admissible evidence. Defendant’s motion for summary judgement is therefore denied.

Dated: November 21, 2018
ODESSA KENNEDY
JUDGE OF THE CIVIL COURT

[*1]

Civil Court of the City of New York, Kings County, October 18, 2018

APPEARANCES OF COUNSEL

Law Offices of Daniel J. Tucker, Brooklyn (John Reinus of counsel), for defendant.

Zara Javakov PC, Brooklyn (Adam Waknine of counsel), for plaintiff.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (5), contending that the action is barred by the doctrine of res judicata, or in the alternative, for an order granting defendant summary judgment pursuant to CPLR 3212.

Plaintiff Kerisli Chiropractic, P.C. commenced the instant action to recover assigned first-party no-fault benefits for medical services provided to its assignor as a result of injuries sustained in an August 23, 2010 automobile incident.

Defendant insurer commenced a declaratory judgment action in Supreme Court against Kerisli Chiropractic, P.C. and moved for summary judgment for an order “adjudging and [*2]decreeing that” Kerisli Chiropractic, P.C. “is not entitled to no fault benefits” for the August 23, 2010 collision.

Kerisli Chiropractic, P.C. did not answer or oppose the motion. The Supreme Court issued an order, reciting the specific declaratory relief requested by the insurer and granting the motion on default.

In the instant no-fault action, defendant insurer moves to dismiss the complaint claiming that the Supreme Court’s order in the declaratory judgment action is a conclusive final determination, which pursuant to res judicata, bars the instant action.

In opposition, plaintiff contends defendant insurer failed to establish its entitlement to res judicata or collateral estoppel, arguing that orders granted on default are not preclusive, and that res judicata only applies to those issues that have been litigated and determined in a prior action, not to actions where an issue due to a party’s default is not litigated. Citing federal cases, plaintiff asserts that Supreme Court’s order granted on default has thus no preclusive effect. (See In re Adler, Coleman Clearing Corp., 205 Fed Appx 856, 857 [2d Cir 2006], citing Abrams v Interco Inc., 719 F2d 23, 34 n 9 [2d Cir 1983].){**61 Misc 3d at 1006}

Pursuant to res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2d Dept 2008], affg 2005 WL 6205455 [Sup Ct, Queens County 2005]).

This court notes plaintiff relies on federal cases in its assertion that default judgments lack preclusive effect. However, under New York state law, default judgments which have not been vacated are final orders, thus preclusive. (See Lazides v P & G Enters., 58 AD3d 607 [2d Dept 2009], revg 2007 WL 6861118 [Sup Ct, Kings County 2007].) The courts have reasoned that to hold otherwise would destroy or impair the rights or interests established by default judgment. (See Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Great Health Care Chiropractic, P.C. v Progressive Ins. Co., 48 Misc 3d 134[A], 2015 NY Slip Op 51077[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court’s declaratory default judgment order against Kerisli Chiropractic, P.C. has not been vacated, the order hence constitutes a final determination, which precludes the instant no-fault action.

Plaintiff also cites cases holding that a mere entry of default judgment in a declaratory judgment action “cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the action at bar.” (See Active Chiropractic, P.C. v 21st Century Ins. Co., 58 Misc 3d 156[A], 2018 NY Slip Op 50200[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co., 50 Misc 3d 128[A], 2015 NY Slip Op 51886[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

The above cases are distinguished from the case at bar, as there is no declaration made by the default judgment orders in the declaratory judgment action at issue in each case. This court takes judicial notice respectively of the default judgment orders in the declaratory judgment actions in Active Chiropractic, P.C., from Supreme Court, New York County dated December 8, 2014, and in Promed Orthocare Supply, Inc., from Supreme Court, Nassau County dated March 15, 2010. (See Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 [*3]AD3d 121 [2d Dept 2018].){**61 Misc 3d at 1007}

In Active Chiropractic, P.C. (2018 NY Slip Op 50200[U], *1), the Supreme Court’s order in the declaratory judgment action merely states that an unrelated relief requested by insurer is granted, and that “the remainder of the motion [is] granted without opposition.” The order does not indicate that a judicial declaration was made by the court, or that a declaration was a relief sought by movant. As the Supreme Court’s order merely grants the entry of default judgment, and is devoid of a judicial declaration, the Appellate Term, Second Department found that the order could not be considered a final order. Absent a judicial declaration, in a declaratory judgment action, it would be impossible to deem or enforce the order as preclusive.

Similarly, in Promed Orthocare Supply, Inc., the Supreme Court’s order in the declaratory judgment action merely states that “plaintiff’s unopposed motion for a judgment on default as against” various defendants “is granted.” The order makes no reference to a judicial declaration or indicates that a declaration was sought in the motion. As with the Supreme Court order at Active Chiropractic, P.C., the Appellate Term, Second Department in Promed Orthocare Supply, Inc. held that the order could not be considered a conclusive final determination, absent declaration of the issues litigated on default. (See Promed Orthocare Supply, Inc., 2015 NY Slip Op 51886[U], *1; Active Chiropractic, P.C., 2018 NY Slip Op 50200[U]; see also Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].) To have res judicata effect in a declaratory judgment action, the order must specify the issues that were determined so that those issues could be identified as barred in future litigations.

In the instant no-fault action, contrary to Active Chiropractic, P.C. and Promed Orthocare Supply, Inc., the Supreme Court’s declaratory judgment order determines the rights of the parties and is thus preclusive as a final order. The Supreme Court’s order recites the specific declaratory relief requested by the insurer, and grants the motion on default, leaving no ambiguity as to the substance of the court’s declaration.

An order specifying the court’s declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default. (See Lazides v P & G Enters. at 607; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

As the Supreme Court order pertaining to the instant no-fault action is a conclusive final determination of the rights of{**61 Misc 3d at 1008} the parties herein, plaintiff is barred from relitigating the claim pursuant to the doctrine of res judicata.

Lastly, plaintiff cites Metro Health Prods., Inc., which is distinguished from the facts of the instant action. Contrary to the case at bar, the order in the declaratory judgment action at issue in Metro Health Prods., Inc. directed the insurer to settle judgment on notice. The insurer failed to settle judgment on notice, and the Appellate Term, Second Department held that an order to settle judgment on notice is not a conclusive final determination and is thus not preclusive. (See Metro Health Prods., Inc., 48 Misc 3d 85.)

As the Supreme Court’s declaratory judgment pertaining to the instant action is a final conclusive determination, hence with preclusive effect, defendant’s motion is granted. It is hereby ordered that the action is dismissed.

722422/16

For Plaintiff:
Emilia I. Rutigliano Esq.
Law Offices of Emilia I. Rutigliano, PC.
1733 Sheepshead Bay Rd., Suite 11
Brooklyn, NY 11235

For Defendant:
Robyn Brilliant Esq.
333 W. 39th St, Suite 400
New York NY 10018-1410

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment seeking dismissal of the complaint. After oral argument, the Court sua sponte vacates order dated November 17, 2017, in place of the following.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant, and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly denied.

The basis of Defendant’s cross motion is the failure of plaintiff’s assignor to attend IMES, which constitutes violation of a condition precedent to coverage. (See Stephen Fogel Psychological P.C. v Progressive Casualty Ins. Co., 35 AD3d 720 [2d Dept 2006], affg 7 Misc 3d 18 [App. Term, 2d Dept 2004]). However, to establish proper denial, the insurer must inform the applicant at the time the IME is scheduled, that the applicant will be reimbursed for any lost earnings and reasonable transportation expenditure incurred in attending the IME (11 NYCRR 65-3.5 (e)). Thus, the insurer has the burden to demonstrate that the IME notice contained the requisite reimbursement language. (See Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Business v Professional Health Radiology, 143 AD3d 536, 39 N.Y.S.3d 428 [1st Dept 2016]).

In the case at bar, defendant failed to establish that the IME notice sufficiently apprised the assignor of such reimbursement. The reimbursement language merely recites the governing statute which states ” the insurer shall inform the applicant” of the right to reimbursement. The notice is devoid of a plain, affirmative statement, that the applicant has the right to receive such reimbursement.

The reimbursement language is further obscured in very fine italicized print, which is inexplicably, smaller than the print used in the remainder of the letter, and potentially unreadable, thus facially deficient.

Moreover, the presentation of the language in the notice, potentially creates ambiguity and confusion regarding the origin of the language. There is no explanation in the notice, that the reimbursement language is recitation of statute or a legal requirement. The only reference to the governing statute, is that the letter ‘e’, immediately appears before the reimbursement language, presumably signifying the end of the citation, 11 NYCRR 65-3.5 (e). However, said letter would be meaningless, if not perplexing, to applicants who lack the requisite legal training to decode its meaning.

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: July 6, 2018
ODESSA KENNEDY
Judge of the Civil Court