Index No. CV-710546-12/QU

Plaintiff’s counsel:
The Rybak Firm, PLLC
1506 Kings Highway, 2nd Floor
Brooklyn, NY 11229

Defendant’s counsel:
Law Offices of Rothenberg & Burns
PO Box 258829
Oklahoma City, OK 73125

I. Papers

The following papers were read on Defendant’s motion to dismiss and Plaintiff’s cross-motion for it’s claims against Defendant:

Defendant’s Notice of Motion to Dismiss and Affirmation in Support, dated March 30, 2022 and electronically filed on March 31, 2022 (“Motion”), together with all supporting exhibits. 1

Plaintiff’s Notice of Cross-Motion and Affirmation in Support of Cross-Motion for Summary Judgement and in Opposition to Motion, undated but electronically filed on May 27, 2022 (“Cross-Motion“), together with all supporting exhibits. 2

Defendant Affirmation in Opposition and in Reply (“Opp and Reply“) dated May 26, 2022 and electronically filed on May 31, 2022, together with all supporting exhibits. 3

II. Background

In a summons and complaint filed with the court on April 3, 2012, Plaintiff sued Defendant insurance company to recover unpaid No-Fault benefits for medical services provided to Plaintiff’s assignor Forbes, plus attorneys’ fees and statutory interest. This “action [arose] out of an automobile ‘accident,’ which allegedly occurred on December 3, 2011. . .[and] claim number 1020274500-1-5 was assigned to this” claim by Defendant insurance company (Motion, Tsirkas aff, paragraph 3). Issue was joined when Defendant filed its an Answer on April 27, 2012. After motion practice (i.e., motion seq. #1 and seq. #2), Plaintiff filed the Notice of Trial on July 24, 2014. This matter was placed on the Part 15N trial calendar on November 7, 2014 and was adjourned to October 17, 2019, which was further adjourned to March 4, 2020. This matter was referred to the inquest clerk after Defendant insurance company failed to appear for trial scheduled on March 4, 2020. By Order to Show Cause (“OSC“) (motion Seq. #3), Defendant moved to vacate its default (CPLR 5015[a][1]) and moved for summary judgment dismissing Plaintiff’s complaint (CPLR 3212[b]). The OSC was scheduled to be heard in Part 40 Calendar on October 1, 2020, but was adjourned to November 4, 2020 before other courts, at which time, other court took the OSC on submission. The OSC was subsequently assigned to this Court for a determination pursuant to the then motion assignment policy under which all motions were submitted to a pool for re-distribution. This Court granted Defendant’ motion to vacate the inquest marking and denied Defendant’s motion for summary judgment dismissing Plaintiff’s complaint.

In January 2022, Queens Civil Court new Supervising Judge (“New SJ“) effectuated a new policy via email pursuant to which “judges assigned to the part [was] responsible for the fully submitted motions.” On March 31, 2022, Defendant filed the instant Motion (i.e., motion seq. #4) seeking an order granting Defendant summary judgement and dismissing Plaintiff’s complaint with prejudice. In May 2022, the New SJ issued another motion assignment policy via email pursuant to which a “judge assigned for the term [was] responsible for all submitted motions, including those that were submitted while the judge was away on vacation that was approved prior to the term assignments.” On May 27, 2022, Plaintiff filed the instant Cross-Motion (i.e., motion seq. #5) seeking an order “pursuant to CPLR . . . 3211(c) and 3212(a), granting summary judgement in favor of Plaintiff, denying Defendant’s motion to dismiss and for summary judgement; limiting the issues of fact for trial pursuant to CPLR 3212(g) that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue; and dismissal of Defendant’s Affirmative Defense pursuant to CPLR 3211(b). . . ” (Cross-Motion at 1). The Motion and Cross-Motion were before other courts on Part 41 calendar on May 16, 2022 and was adjourned to July 18, 2022. Other court took the Motion and the Cross-Motion on submission and subsequently referred the motions to this Court for a determination. This referred matter was one of the approximately one hundred eleven (111) motions referred to this Court as of August 2022, while this Court did not preside over those calendar parts when motions were submitted, pursuant to the New SJ’s everchanging motion policy.

III. Discussion

A. Standard for Summary Judgement

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

In its Motion, Defendant presented a copy of New York County Supreme Court Justice Lucy Billings’ order (“Billings Order“) of August 22, 2019 granting Defendant’s motion for default judgment pursuant to which Hon. Billings declared that Defendant, among other entities, a) was “not obligated to provide any coverage, reimbursements, or pay any monies, sums, or funds to. . . [the Plaintiff]. . .for any and all No-Fault related services for which claims/bills have been, or may in the future be, submitted by [Plaintiff, among other parties,] to [Defendant]; b). . .[Plaintiff and other named entities] lack[ed] standing seeking No-Fault reimbursements; c) [Plaintiff and other named entities] were fraudulently incorporated within the meaning of 11 NYCRR 65-3.16(a)(12) and State Farm v. Mallela, 4 NY3d 313 (NY 2005), in violation of the applicable law; and d) [Plaintiff and other named entities] participated in a scheme to defraud [Defendant, among other entities,] by submitting claims for No-Fault services allegedly rendered by [Plaintiff and other named entities], which they knew were fraudulently incorporated within the meaning of State Farm v. Mallela, 4 NY3d 313 (NY 2005), and 11NYCRR 65-3.16(a)(12).” (Motion, Ex B.) Defendant further argued that “Plaintiff herein [was] barred. . .pursuant to the doctrine of res judicata” and “under the doctrine of collateral estoppel” (Motion, Tsirkas Aff). This Court notes that Billings Order was rendered on default and such order was signed based on a proposed order submitted by the moving parties. This Court also notes that the cover page of the decision indicated that Billings Order was not a final disposition by checking the box of “Non-Final Disposition” (Motion, Ex B).

In its Cross-Motion, Plaintiff cross-moved for summary judgement for its claim and opposed to Defendant’s motion to dismiss. Plaintiff argued that 1) the underlying action (“Prior Declaratory Judgement Action“) in Billings Order “involve[d] ‘additional [parties]’, and thus there [was] ‘no identity of parties'”; 2) “the causes of action [were] not the same”; 3) the relief sough in the instant action was different from the ones in the Prior Declaratory Judgement [*2]Action; 4) Plaintiff’s motion to dismiss was untimely; 5) the prior Declaratory Judgement Action “fail[ed] to state a relation to the instant case as it fail[ed] to state the date of accident, the assignor, and any claim number”; 6) Billings Order was issued on default; 7) “there [was] no identity of the issues. . .[because] here Plaintiff [brought] an action for unpaid no-fault claims based on a breach of contract theory; [while] in the declaratory judgement action, Defendant commenced an action for breach of the insurance policy terms and conditions and asked the court to give it an advisory opinion as to whether Defendant [was] obligated to pay under the policy if some of the individuals breached the policy terms and conditions;” 8) “Plaintiff in this action [was] still within the CPLR time limits for moving to vacate a default judgment.” (Cross-Motion, Rybak Aff.) Plaintiff further argued that Defendant’s motion to dismiss must be denied because (1) Defendant failed to establish collateral estoppel or res judicata; and (2) Defendant’s motion to dismiss was untimely.

In its Opp and Reply, Defendant counter argued that i) Queens Civil Court had issued orders based on Billings Order; ii) Defendant was one of the plaintiff parties in the Prior Declaratory Judgement Action, iii) Plaintiff’s argument of Defendant having untimely filed its motion to dismiss was without merit.

Contrary to Defendant’s arguments, Plaintiff correctly contended, however, that Defendant’s second request for summary judgment dismissing Plaintiff’s complaint based on the Billings Order issued on August 22, 2019, is untimely given that Plaintiff filed the Notice of Trial on July 24, 2014 (CPLR 3212[a]; Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51130[U] *1 [App Term 2d Dept 2015]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75, 76 [App Term 2d Dept 2014] ; Tong Li v Citywide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] *1 [App Term 2d Dept 2014]). While a party may file an untimely summary judgment motion upon good cause shown (CPLR 3212[a]; Miceli v. State Farm Mut. Auto Ins. Co., 3 NY3d 725, 727 [2004]; Brill v. City of New York, 2 NY3d 648, 652 [2004]), here, Defendant failed to explain the reason its first summary judgment motion filed in September of 2020 (“Defendant’s First Motion to Dismiss” or the OSC), was made more than six (6) years after Plaintiff filed the Notice of Trial, and more than a year after the Billings Order. This Court denied, in March 2021, Defendant’s First Motion to Dismiss. Defendant now filed the instant Motion asking the court to dismiss Plaintiff’s complaint for the second time in March 2022. Here, Defendant once again failed to explain the reason its second summary judgment motion filed in March 2022, was made almost seven (7) years after Plaintiff filed the Notice of Trial, almost two (2) years after the Billings Order, and one (1) year after this Court’s denial of Defendant’s First Motion to Dismiss. This Court must deny Defendant’s untimely summary judgment motion seeking an order dismiss the action (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 392; Michael Palmeri, M.D., PLLC v Allstate Ins. Co., 2015 NY Slip Op 51130[U] *1; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d at 77; Tong Li v Citywide Auto Leasing, Inc., 2014 NY Slip Op 50481[U] *1).

Defendant’s Motion seeking an order dismissing Plaintiff’s complaint is denied as [*3]untimely. Alternatively, this Court finds that neither collateral estoppel nor res judicata bars this action.

It is well established that “collateral estoppel precludes a party from relitigating an issue previously resolved against that party in a prior proceeding in which that party had a full and fair opportunity to contest the decision now said to be controlling. The party seeking to apply collateral estoppel bears the initial burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action.” (Kuznitz v Funk, 187 AD3d 1006 [App Division 2d Dept 2020].) Court in Parisien v. Kemper Ins. Co. also stated that “while an issue is not actually litigated if, for example, there has been a default, collateral estoppel may be properly applied to default judgments where the party against whom preclusion is sought appears in the prior action, yet willfully and deliberately refuses to participate in those litigation proceedings, or abandons them, despite a full and fair opportunity to do so. The party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought. The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate.” (Parisien v. Kemper Ins. Co., 76 Misc 3d 18 [App Term 2d Dept 2022].)

Here, in our instant matter, the Billings Order was issued on default. However, Defendant failed to establish that Plaintiff “willfully and deliberately refuse[d] to participate” in the Prior Declaratory Judgement Action or “abandon[ed]” such action (Parisien v. Kemper Ins. Co., 76 Misc 3d 18 [App Term 2d Dept 2022]). In addition, Defendant failed to establish that Billings Order had addressed the alleged car accident at hand supported by insurance company claim number. Equally, Plaintiff failed to explain why it did not participate in the Prior Declaratory Judgement Action, although, it did argue that “Plaintiff in this action [was] still within the CPLR time limits for moving to vacate a default judgment” (Cross-Motion, Rybak Aff). However, Plaintiff failed to explain whether it has taken necessary steps in seeking a vacatur of the Billings Order. Here factual issues exist. This Courts also notes that the cover page of the Justice Billings’ decision indicated that Billings Order was not a final disposition by checking the box of “Non-Final Disposition” (Motion, Ex B). Accordingly, this Court is not convinced that Billings Order, which was issued on default, is a final and “decisive” disposition of the issues between the parties and this Court declines to entertain Defendant’s argument based on collateral estoppel based on submission (Kuznitz v Funk, 187 AD3d 1006 [App Division 2d Dept 2020]).

The Court of Appeals in Simmons v. Trans Express Inc. explained that “under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action. One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion. Importantly, the claim preclusion rule extends beyond attempts to relitigate identical claims. Courts have consistently applied a transactional analysis approach in determining whether an earlier judgment has claim preclusive effect, such that once a claim is brought to a conclusion, all other claims arising out of the same [*4]transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” (Simmons v. Trans Express Inc., 37 NY3d 107 [Court of Appeals, 2021].) Here, similar to the analysis of the doctrine of collateral estoppel above, it appears that Justice Billings’ default decision was not a “final conclusion” of the Prior Declaratory Judgement Action (id.), although based on submission, it is unclear to this Court why Plaintiff was defaulted in the Prior Declaratory Judgement Action and whether Plaintiff has taken necessary steps seeking an order vacating Billings Order which was issued on default. Those factual issues must be resolved during trial. Here, this Courts denies Plaintiff’s Motion based on the doctrine of res judicata.

In its Opp and Reply, Defendant presented copies of two decisions rendered by judges in Queens Civil Court (Opp and Reply, Ex A), arguing that Queens Civil Court had “multiple orders based on” the Billings Order (Opp and Reply, Tsirkas Aff). Defendant’s above arguments were improperly raised for the first time in its Opp and Reply (Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 628, 2021 NY Slip Op 04701*2 [2d Dept Aug. 18, 2021]; Deutsche Bank Natl. Trust Co. v March, 191 AD3d 762, 763 [2d Dept 2021]). In any event, decisions rendered by Queens Civil Court do not have binding effect on this Court. One of the sample decisions provided by Defendant in its Opp and Reply was this Court’s decision on Renelique vs 21 Century Insurance Company with index number CV-738509-12QU issued on March 25, 2021 pursuant to which this Court granted defendant’s motion for summary judgement dismissing plaintiff’s complaint without opposition. It is noted that matter CV-738509-12QU was dismissed without prejudice, based on a proposed order on consent. This Court did not disturb parties’ agreement then and declines to reverse litigants’ dealing now.

Plaintiff sought an order 1) granting summary judgement in favor of Plaintiff, denying Defendant’s motion to dismiss and for summary judgement; 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue; and 3) dismissal of Defendant’s Affirmative Defense pursuant to CPLR 3211(b).

As to Plaintiff’s prayer for summary judgement for its claims, Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and that payment of no-fault benefits was overdue (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]).

In support of its Cross-Motion for its claims, Plaintiff presented an affidavit of Renelique sworn to on May 23, 2022 (“Renelique Affidavit“) stating that he had “requisite first-hand detailed knowledge of the facts pertaining to this action”; that he “or persons acting under [his] personal direction, supervision and control, provided the necessary medical services in the amount of $4,504.07 to [the assignor] for injuries sustained”; that statutory billing forms were mailed to the Defendant; and that payment of no-fault benefits were overdue (Cross Motion, Ex 3). Here, Plaintiff provided copies of the bills to support its claims, while Defendant did not address nor deny receipt of the Plaintiff’s statutory billing forms in its Motion or in its Opp and [*5]Reply. Accordingly, Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g).

It is well established that insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). “New York Law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], see Business Corporation Law §§ 1507; 1508; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886 [2d Dept 2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1031 [2d Dept 2016]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . .” (11 NYCRR § 65-3.16[a][12]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 886; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d at 1031; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740). In the No Fault context, corporate practices evincing a willful, material noncompliance with licensing and incorporation statutes may establish a medical provider’s ineligibility to receive reimbursement (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405, see State Farm v Mallela, 4 NY3d 313, 321 [2005]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 4, 7 [App Term 2d Dept 2011]). The elements of common law fraud need not be shown (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405) if noncompliance with the above-described licensing requirement is established through admissible evidence.

Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). However, the defense that a health care provider is ineligible to receive No Fault insurance benefit payments is not subject to preclusion (All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] *2 [App Term 2d Dept 2012]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d at 6; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 59 [App Term 2d Dept 2006]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term 2006]).

In our instant matter, Billings Order, which was issued on default, addressed Plaintiff’s alleged fraudulent incorporation and participation “in a scheme to defraud” Defendant “within the meaning of State Farm v. Mallela, 4 NY3d 313 (NY 2005), and 11NYCRR 65-3.16(a)(12)” (Motion, Ex B). Here, although Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g), an ineligibility of receiving No Fault [*6]insurance benefit due to non-compliance with licensing statutes defeats such prima facie showing. Plaintiff’s motion for summary judgment for its claims is denied.

As discussed above, factual issues exist in the instant action. Plaintiff’s prayer for a summary judgment order dismissing Defendant’s affirmative defense pursuant to CPLR 3211(b) is denied without prejudice pending trial.

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment seeking an order dismissing Plaintiff’s complaint (Motion Seq. #4) is denied in its entirety, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement for its claims (Motion Seq. #5) is denied, and it is further

ORDERED that Plaintiff has established the fact that the prescribed statutory billing forms were mailed to and received by the insurance carrier, and that payment of no-fault benefits were overdue pursuant to CPLR 3212(g), and it is further

ORDERED that Plaintiff’s prayer for a summary judgment order dismissing Defendant’s affirmative defense pursuant to CPLR 3211(b) is denied without prejudice pending trial, and it is further

ORDERED that this matter is scheduled for an immediate trial at Part 15N on Monday April 8, 2024 at 10:00am at Queens Civil Court, and the part clerk is directed to notify both parties and to mark the calendar accordingly.

Plaintiff is on notice that if it fails to take concrete steps to vacate the Billings Order “within the CPLR time limits for moving to vacate a default judgment” (Cross-Motion, Rybak Aff) as Plaintiff argued, Billings Order will become a final disposition and conclusion of the Prior Declaratory Judgement Action.

This constitutes the DECISION and ORDER of the Court.

_____________________________________
Honorable Wendy Changyong Li, J.C.C.

Index No. CV-726719-19QU

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

Defendant’s Counsel:
McDonnell Adels Klestzick, P.L.L.C.
401 Franklin Avenue
Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint and Plaintiff’s cross-motion for summary judgment seeking judgment on its claims against Defendant:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated April 21, 2021 (“Motion“) and electronically filed with the court on April 23, 2021. 1

Plaintiff’s Notice of Cross-Motion seeking summary judgment and Affirmation in Support dated and electronically filed with the court on August 30, 2021 (“Cross-Motion“). 2

Defendant’s Affirmation in Opposition to Cross-Motion and Reply dated as of January 10, 2022 (“Opposition to Cross-Motion“) and electronically filed with the court on January 11, 2022. 3

II. Background

In a summons and complaint filed November 15, 2019, Plaintiff sued Defendant insurance company to recover a total of $2,114.99 in unpaid No-Fault benefits for medical services provided to Plaintiff’s assignor Soto from January 29, 2019 to May 8, 2019 resulting from an automobile accident on September 11, 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to provide additional documentary verification within one-hundred twenty (120) days (11 NYCRR § 65-3.8[b][3]). Plaintiff cross-moved for summary judgment on its claims against Defendant.

III. Discussion and Decision

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

Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). “New York Law prohibits unlicensed individuals from organizing a professional service corporation for profit or exercising control over such entities” (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d 389, 404 [2019], see Business Corporation Law §§ 1507; 1508; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886 [2d Dept 2017]; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d 1029, 1031 [2d Dept 2016]; One Beacon Ins. Group, LLC v [*2]Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). “A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York . . .” (11 NYCRR § 65-3.16[a][12]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 886; Liberty Mut. Ins. Co. v Raia Med. Health, P.C., 140 AD3d at 1031; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740). In the No Fault context, corporate practices evincing a willful, material noncompliance with licensing and incorporation statutes may establish a medical provider’s ineligibility to receive reimbursement (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405, see State Farm v Mallela, 4 NY3d 313, 321 [2005]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 4, 7 [App Term 2d Dept 2011]). The elements of common law fraud need not be shown (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405) if noncompliance with the above-described licensing requirement is established through admissible evidence.

Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). However, the defense that a health care provider is ineligible to receive No Fault insurance benefit payments is not subject to preclusion (All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] *2 [App Term 2d Dept 2012]; Radiology Today, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d at 6; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58, 59 [App Term 2d Dept 2006]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term 2006]).

In the instant matter, Defendant received Plaintiff’s eight (8) bills from February 26, 2019 to May 31, 2019 for services rendered from January 29, 2019 to May 8, 2019 respectively and denied those claims from July 18, 2019 to October 16, 2019 respectively. Defendant denied the claims for Plaintiff’s failure to provide requested verification. While Defendant denied Plaintiff’s claims well after the thirty (30) days required for timely payment or denial, Defendant may delay payment pending an investigation of Plaintiff’s alleged noncompliance with licensing and incorporation statutes, but only upon showing good cause to pursue the investigation (Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 33 NY3d at 405; State Farm v Mallela, 4 NY3d at 322).

A. Defendant’s Requests for Verification

“An applicant from whom verification is requested shall, within 120 calendar days from the date of the initial request for verification, submit 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]).

In the instant matter, Defendant acknowledged receiving the bills and mailed to Plaintiff a request (“First Verification Request“) for additional verification, in letters dated March 13, 2019, March 21, 2019, April 5, 2019, April 29, 2019, May 7, 2019, May 21, 2019 and June 11, 2019 (see Motion, Linwood Aff). Here, Plaintiff had one-hundred twenty (120) days to provide Defendant with requested verification under Plaintiff’s control or possession or a written [*3]explanation supporting Plaintiff’s failure to comply. In the First Verification Request, Defendant requested “1. all written agreements between Jiang Acupuncture and Jiang and Top One Medical Billing ; 2.montly statements sent by Top One Medical Billing to Jiang Acupuncture detailing amounts billed and collected by Top One Medical Billing on behalf of Jiang Acupuncture for the past 12 months; 3. all documents reflecting payments to or from Top One Medical Billing during the past 12 months, including endorsed payment drafts issued by Jiang Acupuncture to Top One Medical Billing for the period of September 2016-August 2017; 4. All documents reflecting or relating to gifts given by Jiang Acupuncture and/or Jiang… to… Davis, Graham Wellness Medical PC., or any person who worked at [XXX] Graham Avenue during the past 12 months, including but not limited to credit or debit card statements, credit or debit card receipts, purchase receipts, or documents reflecting cash withdrawals; 5. General ledger of Jiang Acupuncture for the past 12 months; 6. W-2/1099 issued by Jiang Acupuncture to… Jiang for most recent tax year available; 7. All schedule K-1s issued by Jiang Acupuncture for most recent tax year available; 8. Jiang Acupuncture’s complete copy of corporate tax returns for most recent tax year available; and 9. Jiang Acupuncture’s corporate bank records for the past 12 months” (id.). Defendant made follow up requests (“Second Verification Request,” together with the First Verification Request, the “Verification Request“) for the documents in letters dated April 17, 2019, April 25, 2019, May 8, 2019, June 4, 2019, June 11, 2019, June 27, 2019 and July 18, 2019 respectively (id.). Plaintiff did not dispute that Plaintiff did not provide the requested documents to Defendant.

B. Good Cause for Requested Verification

Defendant argued that the requested documents were necessary to verify the medical necessity of the billed services, and whether the ownership, control, and operation of Plaintiff complied with New York State licensing requirements. Plaintiff countered that the verification was improper, that Defendant failed to establish “that the verification requests were necessary”; and that “EUO transcripts [were] inadmissible hearsay, as the transcripts [were] not signed by the Plaintiff.” Plaintiff further argued that “CPLR 3116(a) provides that an EUO transcript must be submitted to the witness so that the witness can read it and make any changes.” (Cross-Motion, Fagan Aff.) The Court notes that Defendant’s supporting documents indicates that Plaintiff in the instant matter had various claims resulting from different assignors, including Plaintiff assignor in the matter before this Court, pending with the Defendant.

Contrary to Plaintiff’s contention, tax returns and bank statements were probative on whether a medical service provider complied with licensing laws (see All Boro Psychological Servs., P.C. v Auto One Ins. Co., 2012 NY Slip Op 50777[U] *1-2; Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 33 Misc 3d 64, 66 [App Term 2d Dept 2011], see Dore v Allstate Indem. Co., 264 AD2d 804, 804-05 [2d Dept 1999]). While mere allegations of fraud would be sufficient to sustain a motion to compel discovery of evidence of noncompliance with licensing laws (see Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42, 43 [App Term 2d Dept 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] *2 [App Term 2d Dept 2012]), here, Defendant sought summary judgment, which requires admissible evidence (see Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3ed at 886; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d at 740; Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 22 Misc 3d [*4]142[A], 2009 NY Slip Op 50493[U] *2 [App Term 2d Dept 2009]; Oleg Barshay, P.C. v State Farm Ins. Co., 14 Misc 3d 74, 78 [App Term 2d Dept 2006]). In our instant matter, Defendant failed to support its good cause with admissible evidence for investigating Plaintiff’s alleged noncompliance with the licensing statutes as explained below.

Defendant presented an affidavit sworn December 22, 2020, in which Baines, an investigator in Defendant’s Special Investigative Unit, detailed Defendant’s investigation of Plaintiff, as part of an alleged broader scheme of non-compliance with licensing laws, leading to the Verification Request at issue. In her affidavit, Baines stated that Defendant concerned that “whether (i) the services billed by the providers operating from 150 Graham Avenue (including Jiang Acupuncture) were medically necessary; (ii) whether the services billed were actually provided; and (iii) whether the ownership control and operation of Jiang Acupuncture and the other professional corporations (“PCs”) operating from [XXX] Graham Avenue complied with New York State licensing requirements.” As a result, an examination under oath (“EUO“) was requested and conducted. In her affidavit, Baines quoted Jiang Acupuncture’s listed owner, Jiang, L.Ac.’s testimony at the EUO to demonstrate that Jiang’s “testimony did not resolve State Farm’s questions[; and that, t]o the contrary, her testimony only raised additional questions as to whether Jiang Acupuncture’s services were reimbursable”. (see Motion, Baines Aff.) To support its Motion, Defendant presented the transcript of Jiang’s EUO, however, the transcript was not subscribed by Jiang. CPLR 3116 requires that the transcript “shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them [; that i]f the witness fails to sign and return the [transcript] within sixty days, it may be used as fully as though signed.” (CPLR 3116[a].) Here, it is unclear based on the Motion if the transcript was ever presented to Jiang for signature. Since Defendant failed to present a signed transcript of Jiang to support its Motion, Baines’ account of Jiang’s EUO testimony is hearsay. (see Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934, 935 [2d Dept 2021]; United Specialty Ins. v Columbia Cas. Co., 186 AD3d 650, 651 [2d Dept 2020]; Wells Fargo Bank, N.A. v Sesey, 183 AD3d 780, 783 [2d Dept 2020]; Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] *1 [App Term 2d Dept 2015]; Apazidis, M.D., P.C. v State Farm Mut. Auto. Ins. Co., 71 Misc 3d 1225[A].)

In Defendant’s Opposition to Cross-Motion, Defendant did not address the issue of unassigned transcripts, however, simply relied on the truth of Jiang’s EUO testimony to establish good cause for requesting verification from Plaintiff which in the context of a summary judgment motion requires admissible evidence. Since Defendant failed to demonstrate its prima facie entitlement to a judgment as a matter of law, the court must deny Defendant’s motion for summary judgment (Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; United Specialty Ins. v Columbia Cas. Co., 186 AD3d at 651-52; Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 AD3d 1138, 1140 [2d Dept 2018]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d at 887).

Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is denied.

C. Plaintiff’s Cross-Motion

Regarding the Cross-Motion, Plaintiff bore the burden to show it submitted the statutory [*5]claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits was overdue” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; New York Hosp. Med. Ctr. of Queens v QBE Ins. Corp., 114 AD3d 648, 648 [2d Dept 2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Defendant’s denial of claim forms acknowledging receipt of Plaintiff’s claims constituted prima facie evidence that Defendant received Plaintiff’s claims and that the denial was overdue (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). However, an ineligibility of receiving No Fault insurance benefit due to non-compliance with licensing statutes defeats such prima facie showing.

Based on foregoing discussion, Defendant had identified the existence of evidence in Plaintiff’s exclusive control which raised the issue of Plaintiff’ ineligibility to receive No Fault benefit payments. Because the requested verification are still outstanding, factual issues exist as to Plaintiff’ eligibility to receive No Fault benefit payments. Since Defendant’s defense of Plaintiff’s ineligibility to receive No Fault benefit payments is not precluded by Defendant’s untimely denial of Plaintiff’s claims and Plaintiff still has not provided the requested verification, this Court also must deny Plaintiff’s Cross-Motion (CPLR 3212[f]; RLC Med., P.C. v Allstate Ins. Co., 29 Misc 3d 134[A], 2010 NY Slip Op 51962[U] *1 [App Term 2d Dept 2010]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *3 [App Term 2d Dept 2010]; Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 27 Misc 3d 89, 90 [App Term 2d Dept 2010]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment (Motion Seq. #1) is denied, and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgement for it’s claim (Motion Seq. #3) is denied.

This constitutes the DECISION and ORDER of the Court.

Dated: September 11, 2023
Civil Court of the City of New York
_____________________________________
Honorable Wendy Changyong Li, J.C.C.

[*1]

Civil Court of the City of New York, Queens County, June 30, 2023

APPEARANCES OF COUNSEL

Hollander Legal Group, P.C., Melville (Justin A. Calabrese of counsel), for defendant.

Law Offices of Gabriel & Moroff, P.C., Rockville Centre (John E. Fagan of counsel), for plaintiff.

Defendant’s motion for summary judgment and to dismiss plaintiff’s complaint on the grounds that plaintiff assignor failed to appear for four duly and timely scheduled examinations under oath (EUO) is granted in its entirety, and plaintiff’s cross-motion is denied. Plaintiff’s argument that defendant failed to establish timely denial, in that denial exceeded the 30-day time period from the second EUO no-show, is unpersuasive and outmoded in light of the Appellate Division’s recent decision in Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013 [2d Dept 2023]), reversing a decision of the Appellate Term (see 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]).

This court has struggled with this issue in the past. Despite that the earlier Quality Health held that “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” (2020 NY Slip Op 51226[U], *1 [citation omitted]), this court found that a timely denial issued after a fourth missed EUO was sufficient to support defendant’s request for summary judgment (see NGM Acupuncture, P.C. v Nationwide Ins. Co., Civ Ct, Queens County, June 15, 2021, index No. 706015/2019). This court reasoned that to hold otherwise puts defendants at a disadvantage for offering plaintiffs additional opportunities to appear for an EUO, and disincentivizes diligent and thorough investigations. Even more so, it gave plaintiffs an advantage if they did appear at a third or fourth scheduled EUO.

Following the earlier Quality Health, the Appellate Term issued a decision in FJL Med. Servs., P.C. v Nationwide Ins. (77 Misc 3d 129[A], 2022 NY Slip Op 51213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) that addressed this issue in a more comprehensive fashion. FJL essentially confirmed the finding of the Appellate Term in Quality Health. It reasoned that “an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities{**80 Misc 3d at 653} to appear and end its toll” (2022 NY Slip Op 51213[U], *2-3). Disregarding defendant’s arguments based upon the regulations and rooted in fairness principles, the court framed the issue as whether an insurer properly continued its toll period to pay or deny a claim, instead of whether a provider or insured appeared for a duly scheduled and/or rescheduled EUO.

Although this court continued to disagree with the premise expressed in Quality Health and expounded upon in FJL, in light of that later decision, this [*2]court capitulated and denied a defendant’s motion contemplating the same issue discussed here (see Access Care PT, P.C. v Palisades Ins. Co., 2023 NY Slip Op 32567[U] [Civ Ct, Queens County, Mar. 7, 2023]).

Having to contend with its prior decisions, this court is being asked to, again, consider this issue. However, now it has the Appellate Division’s decision in Quality Health which, arguably, endorses this court’s earlier opinion in NGM Acupuncture. In reversing the Appellate Term, the Appellate Division found that a denial for nonappearance issued after the last scheduled EUO, and in that case there were three, was timely and proper (see Quality Health Supply Corp., 216 AD3d at 1013). With this in mind, the court finds here that defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing plaintiff’s complaint by showing that its scheduling letters were timely and properly mailed, that the assignor failed to appear on each of the four scheduled dates, and that it ultimately issued a timely and proper denial following a failure to appear on the last scheduled date (see e.g. Quality Health Supply Corp., 216 AD3d 1013).

It is noteworthy that plaintiff did not deny receipt of the scheduling letters or that the assignor failed to appear on all four occasions. Actually, plaintiff highlighted that it responded to defendant’s scheduling letters by objecting to the location of the EUO but, also, expressing its assignor’s willingness to attend. Despite these responses, plaintiff seeks to penalize defendant for extending multiple opportunities to its assignor to appear. The contradictory nature of this argument and its effect of placing insurers in a problematic position is evident.

Most importantly, and what this court believes was previously overlooked, is that appearance for an EUO is a condition precedent to coverage (see generally Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020];Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35{**80 Misc 3d at 654} AD3d 720, 722 [2d Dept 2006]; Excel Imaging, P.C. v Infinity Select Ins. Co., 46 Misc 3d 128[A], 2014 NY Slip Op 51796[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). By circumventing this principle, and virtually ignoring the EUO nonappearances, form prevailed over substance. The most recent Quality Health rectifies this imbalance and, also, promotes the mandate of the no-fault regulations prohibiting insurers from treating their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]; see also NGM Acupuncture, P.C. v Nationwide Ins. Co.). Ultimately, a plaintiff’s failure to appear for a duly scheduled EUO, barring any issues of timeliness, should be the predominate consideration in disputes such as the one before this court.

Plaintiff’s complaint is hereby dismissed.

Index No. CV-721236-19/QU

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

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

I. Papers

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

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

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

III. Discussion and Decision

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

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

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

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

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

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

IV. Order

Accordingly, it is

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

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

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

This constitutes the Decision and Order of the court.

Index No. CV-720860-19/QU

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

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

I. Papers

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

II. Background

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

III. Discussion

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

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

IV. Order

Accordingly, it is

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

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

This constitutes the Decision and Order of the court.

Index No. CV-109640-02/QU

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

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

I. Papers

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

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

II. Background

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

III. Discussion and Decision

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

CPLR 3404 provides:

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

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

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

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

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

IV. Order

Accordingly, it is

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

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

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

This constitutes the Decision and Order of this Court.

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

Index No.: CV-700046-20/QU

Plaintiff’s counsel: Law Offices of Gabriel & Shapiro LLC, 3361 Park Avenue Suite 1000, Wantagh, NY 11793

Defendant’s counsel: Rivkin Radler LLP, 926 RexCorp Plaza, Uniondale, NY 11556

I. Papers

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

II. Background

In a summons and complaint filed July 12, 2018, Defendant commenced an action in Supreme Court, Nassau County (“Supreme Court Action“) against Plaintiff seeking a judgment declaring that Defendant owed no duty to pay Plaintiff’s No-Fault claims because Plaintiff failed to appear for scheduled examinations under oath (“EUO“) (see Motion, Aff. of Pontrello, Ex. 3). In a summons and complaint filed January 2, 2020, Plaintiff sued Defendant insurance company to recover $346.52 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Martinez from September 8 to 27, 2017, for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Pontrello Aff., Ex. 1). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that the action is barred by res judicata. Plaintiff did not oppose Defendant’s motion.

III. Discussion

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, [*2]111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). Here, Defendant relied on an order dated October 4, 2019 (“Supreme Court Order“) in the Supreme Court Action, in which Supreme Court denied Plaintiff’s motion to compel arbitration, finding that Plaintiff “failed to satisfy the requirement of insurance coverage by appearing for the examination under an oath as noticed by” Defendants (State Farm Mut. Auto. Ins. Co. v Fine Needle Acupuncture, PC, Sup. Ct. Nassau County, October 4, 2019, Brandveen, J., Index No. 609282/18; Motion, Pontrello Aff., Ex. 4). Since the Supreme Court Order was not an order granting Defendant a default judgment, as Defendant erroneously contended, here, Defendant failed to demonstrate that res judicata bars the present action.

Nevertheless, the related concept of collateral estoppel bars Plaintiff’s action. Collateral estoppel or issue preclusion prevents re-litigation of a factual or legal issue actually raised and resolved in a prior court determination (Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72 [2018]; Buechel v Bain, 97 NY2d 295, 303 [2001]; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152 [2d Dept 2021]; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d 931, 931-32 [2d Dept 2021]). In order to apply collateral estoppel, “there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-04; Coleman v J.P. Morgan Chase Bank N.A., 190 AD3d at 932). In our instant case, both factors have been established. In the Supreme Court Action, Supreme Court found that Plaintiff failed to appear for the scheduled EUOs and did not challenge that Defendant requested the EUOs and had a valid reason for requesting them. It is well settled that noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer’s duty to indemnify (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2d Dept 2014]; National Med. & Surgical Supply, Inc. v ELRAC, Inc., 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Since Plaintiff is collaterally estopped from raising the issue of its non-attendance of the EUOs in the instant matter and Defendant presented evidence that it had timely denied Plaintiff’s claim based on Plaintiff’s failure to attend the EUOs (see Motion, Pontrello Aff., Ex. A), Defendant here is entitled to dismissal of Plaintiff’s complaint.

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment is granted without opposition and Plaintiff’s complaint is dismissed; and it is further

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

This constitutes the Decision and Order of the court.

Index No. CV-725161-20/QU

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

I. Papers

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

Defendant’s Notice of Motion and Affirmation in Support dated April 4, 2021 (“Motion“) and filed with the court on April 26, 2021. 1
Plaintiff’s Cross-Motion and Affirmation in Support dated August 4, 2021 (“Cross-Motion“) and electronically filed with the court on the same date. 2
Defendant’s Affirmation in Opposition dated December 27, 2021 (“Opposition“) and electronically filed with the court on December 30, 2020. 3

In a summons and complaint filed on December 18, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,359.40 in unpaid first party No-Fault benefits for medicine prescribed to Plaintiff’s assignor Viera on September 24, 2020, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved for summary judgment dismissing the complaint on the grounds that Plaintiff lacked standing, and alternatively that Defendant timely denied Plaintiff’s claim based on lack of medical necessity. Plaintiff cross-moved for summary judgment on its claim against Defendant. An oral argument by both parties was conducted by this Court.

III. Discussion and Decision

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

Defendant contended that Plaintiff lacked standing to bring action on its claim for No-Fault benefits provided to Viera and alternatively that the treatment Plaintiff provided to Viera was not medically necessary. Defendant argued Plaintiff lacked standing because the assignment of benefits was executed by Viera, who was a minor. Here, even assuming that it was improper for a minor to execute an assignment of benefits as Defendant contended (see 11 NYCRR 65-3.11[a]), Plaintiff presents prima facie entitlement to No Fault benefits by presenting an assignment of benefits form where Defendant fails to timely seek verification of the assignment’s validity (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007], see Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129[A], 2014 NY Slip Op 51810[U] *1 [App Term 2d Dept 2014]). Moreover, Defendant’s failure to timely object to the assignment waived any defenses based on any deficiencies in the assignment (Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348 [2d Dept 2005]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50488[U] *2 [App Term 2d Dept 2010], see Beal-Medea Prods., Inc. v Geico Gen. Ins. Co., 51 Misc 3d 138[A], 2016 NY Slip Op 50594[U] *1 [App Term 2d Dept 2016]).

Regarding medical necessity, Defendant’s denial on that ground must completely and clearly state the reason for denial of the claim and apprise Plaintiff of the grounds upon which [*2]disclaimer is based (Olympic Chiropractic, P.C. v American Tr. Ins. Co., 14 Misc 3d 129[A], 2007 NY Slip Op 50011[U] *1 [App Term 2d Dept 2007]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] *1 [App Term 2d Dept 2003], see Delta Diagnostic Radiology, P. C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 126[A], 2006 NY Slip Op 52370[U] *2 [App Term 2d Dept 2006], see e.g., Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19, 21 [App Term 2d Dept 2013]). To support the contention that the prescribed medication was not medically necessary, Defendant presented the affirmation of Agrawal, M.D., dated November 3, 2020. Dr. Agrawal attested that Viera “was prescribed Lidocaine 5% ointment by Dr. Hausknecht, which was not medically necessary and not causally related as it is not supported by enough evidence. Lidocaine is questionable in a 15-year-old [sic] as efficacy, especially given the side effects of cardiac arrythmia and seizures. Her pain seems to be causally related, but I question this aggressive testing and treatment in a 15 year old child” (Motion, O’Shea Aff., Ex. C at 6). Dr. Agrawal’s opinion that the medication prescribed was not medically necessary was entirely conclusory (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). In addition, while Dr. Agrawal addressed the advisability of the medication prescribed for Plaintiff, nowhere did Dr. Agrawal state that such treatment was unnecessary. Therefore, Defendant’s denial on the ground of medical necessity was factually insufficient and may not be raised as a defense to Plaintiff’s claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U] *2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1-2).

Regarding Plaintiff’s Cross-Motion, Plaintiff’s sole contention was that Defendant’s payment or denial of Plaintiff’s claim was untimely. Plaintiff bore the burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term 2d Dept 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). Here, Plaintiff pointed to its bill and Defendant’s denial of claim form which indicated that Defendant received Plaintiff’s bill for $1,359.40 on October 28, 2020 (see Motion, O’Shea Aff., Ex. C). A denial of claim form, however, is insufficient to establish a medical provider’s prima facie case but suffices to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). Although Defendant’s denial of claim form established Defendant’s timely denial of the claim, as discussed above, Defendant failed to establish the lack of medical necessity of prescribed medication upon which Plaintiff based its claim (Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1). Therefore, Plaintiff has demonstrated entitlement to summary judgment on its claim (see Olympic Chiropractic, P.C. v American Tr. Ins. Co., 2007 NY Slip Op 50011[U]*2; Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] *1).

IV. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment dismissing Plaintiff’s complaint (Motion Seq. #1) is denied; and it is further

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant (Motion Seq. #2) is granted; and it is further

ORDERED that the Clerk shall enter judgment in Plaintiff’s favor and against Defendant in the amount of $1,359.40 together with statutory interest from October 28, 2020 and statutory attorneys’ fees.

This constitutes the court’s Decision and Order

Index No. CV-711172-18/QU

Plaintiff’s Counsel:
Lewin & Baglio
1100 Shames Drive, Suite 100
Westbury, NY 11590

Defendant’s Counsel:
Travelers Insurance Company
3 Hunting Quadrangle
Melville, NY 11747

I. Papers

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

II. Background

In a summons and complaint filed September 7, 2018, Plaintiff sued Defendant insurance company to recover $3,116.03 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Laporte from February 4 to May 4, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Granov, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Defendant timely paid Plaintiff’s claim according to the applicable fee schedule (CPLR 3212[b]). Plaintiff cross-moved for summary judgment on its claim against Defendant. The motions were assigned to this Court for determination on March 16, 2022.

III. Discussion

Automobile insurers must provide $50,000.00 coverage for “basic economic loss” (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). Charges for basic economic loss “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 NY3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc 3d 149[A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).

Insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-82).

Defendant requested that the court take judicial notice of the various fee schedules. The party requesting judicial notice must furnish the court “sufficient information to enable it to comply with the request” (CPLR 4511[b]; see Ponnambalam v Sivaprakasapillai, 35 AD3d 571, 574 [2d Dept 2006]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] *1 [App Term 2d Dept 2017]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] * 2 [App Term 2d [*3]Dept 2011]). Here, Defendant presented a copy of the fee schedules upon which its witness relied (see Motion, Granov Aff., Ex. D).

Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55 Misc 3d147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). To support its motion, Defendant relied on the affidavit of Marchitte, Defendant’s Medical Appeals Analyst sworn September 24, 2019, in which she concluded that, based on the fee schedule, Plaintiff’s bills for the medical equipment exceeded the applicable fee schedule (Motion, Granov Aff., Ex. E).

To qualify as an expert, a witness must possess skill, training, knowledge, and experience to allow an assumption of the reliability of the opinion rendered (Price v. New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Matott v. Ward, 48 NY2d 455, 459 [1979]; DiLorenzo v. Zaso, 148 AD3d 1111, 1112-13 [2d Dept 2017]; Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 847 [2d Dept 2016]). In her affidavit, Marchitte attested that her position as a Medical Appeals Analyst necessitated that she became familiar with specified billing codes. Since Marchitte did not identify how she became familiar with the billing codes whether through education, training or apprenticeship, she failed to specify her qualifications, which are necessary to establish that she was an expert (Chtchannikova v. City of New York, 174 AD3d 572, 573 [2d Dept 2019]; DiLorenzo v Zaso, 148 AD3d at 1115; Leicht v. City of NY Dept of Sanitation, 131 AD3d 515, 516 [2d Dept 2015]; Currie v Wilhouski, 93 AD3d 816, 817 [2d Dept 2012]). Since Defendant failed to support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount in controversy (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupunctrure, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc 3d 134[A], 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Therefore, the court denies Defendant’s Motion for summary judgment.

Regarding the Cross-Motion, it was Plaintiff’s burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and “that payment of no-fault benefits [was] overdue” (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 120 [App Term 2d Dept 2006]). To support its Cross-Motion, Plaintiff essentially relied on Defendant’s denial of claim forms which were sufficient to establish Defendant’s receipt of Plaintiff’s claim and nonpayment of that claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). In our instant case, Defendant’s denial of claim forms demonstrated partial payment of defendant’s claims and timely denial of the remainder of the claims (see Motion, Granov Aff., Ex. F). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claims against Defendant, the court denies Plaintiff’s Cross-Motion for summary judgment.

IV. Order

Accordingly, it is

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

ORDERED that Plaintiff’s Cross-Motion for summary judgment on its claim against Defendant is denied.

This constitutes the Decision and Order of the court.

______________________________________
Honorable WENDY CHANGYONG LI, J.C.C.

Index No. CV-709085-19/QU

Plaintiff’s counsel:
Law Offices of Gabriel & Shapiro, L.L.C.
3361 Park Avenue, Suite 1000
Wantagh, NY 11793

Defendant’s counsel:
Gullo & Associates, LLP
520 86th Street
Brooklyn, NY 11209

I. Papers

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

Papers Numbered

Defendant’s Notice of Motion and Affirmation dated July 1, 2020 (“Motion”) and electronically filed with the court on the same date. 1

II. Background

In a summons and complaint dated November 1, 2018 and file stamped by the court on April 25, 2019, Plaintiff sued Defendant insurance company to recover $381.48 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Warren from [*2]January 2, 2013 to January 15, 2013 and from January 18, 2013 to February 7, 2013, plus attorneys’ fees and statutory interest (see Motion, Aff. of O’Shea, Ex. A). Defendant moved to dismiss the complaint on the ground that Plaintiff commenced its action after the applicable statute of limitations had expired (CPLR 3211[a][5]). Plaintiff did not oppose Defendant’s Motion. This matter was assigned to this Court for determination on November 17, 2021.

III. Discussion

“A party may move for judgment dismissing one or more causes of action asserted against [the party] on the ground that . . . the cause of action may not be maintained because of . . . statute of limitations” (CPLR 3211[a][5]). First-party No-Fault causes of action are governed by the six-year statute of limitations for actions arising out of contract (CPLR 213[2]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 39 Misc 3d 147[A], 2013 NY Slip Op 50900[U] *1 [App Term 2d Dept 2013]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51720[U] *1 [App Term 2d Dept 2011]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] *1 [App Term 2d Dept 2011]).

For a motion to dismiss pursuant to CPLR 3211[a][5], Defendant bears the burden to show that “the time within which to commence the cause of action has expired” (Golden Jubilee Realty, LL v Castro, 196 AD3d 680, 683 [2d Dept 2021], see Siegler v Lippe, 189 AD3d 903, 904 [2d Dept 2020]; Shirom Acupuncture, P.C. v New York City Off. of Comptroller, 47 Misc 3d 150[A], 2015 NY Slip Op 50779[U] *1 [App Term 2d Dept 2015]; Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *1). Here, Defendant argued that a No-Fault cause of action accrued thirty (30) days from the submission of the bills or the date of denial. Contrary to Defendant’s contention, in a No-Fault action, the cause of action accrues thirty (30) days after Defendant’s receipt of the bills (EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51304[U] *1). In evaluating a motion to dismiss a complaint as time barred, the Court must accept the allegations in the complaint as true and resolve inferences in Plaintiff’s favor (Silver v. Silver, 162 AD3d 937, 939 [2d Dept 2018]; Cataldo v. Herrmann, 154 AD3d 641, 642 [2d Dept 2017]; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *1-2). In our instant case, Plaintiff’s complaint did not allege when or if Defendant received Plaintiff’s bills. In addition, Defendant’s “no-fault litigation claims” handler, Scarfino, attested that Defendant “[had] not received a properly executed No-Fault Application” as of May 28, 2020, the date of Ms. Scarfino’s affidavit (see Motion, Aff. of O’Shea, Ex. C).

It is well settled that the injured party or assignee of No-Fault benefits must submit proof of the claim to the insurer within 45 days of the date when health services were rendered (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 AD3d 498, 505 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; 11 NYCRR § 65-1.1[d]) and that insurers must pay or deny No-Fault benefit claims within thirty (30) “days of receipt of proof of the claim” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 501; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). The accrual date [*3]of a No-Fault action may also be computed by adding forty-five (45) days from the date when health services were provided to the thirty (30) days when Defendant has to pay or deny the claim provided that the complaint also alleges Plaintiff’s timely submission of the claims and Defendant’s untimely denial of the claims (see Wexford Med., P.C. v Commerce Ins. Co., 40 Misc 3d 133[A], 2013 NY Slip Op 51193[U] *1 [App Term 1st Dept 2013]; Flatlands Acupuncture, P.C. Fireman’s Fund Ins. Co., 32 Misc 3d 17, 19-20 [App Term 2d Dept 2011]). Here, while the inartfully drafted complaint alleged that “there ha[d] been no payment” of the bill (Motion, O’Shea Aff. Ex. A at 4-5), it was completely silent as to Defendant’s denial of the claim, timely or not. It is noted, however, that Plaintiff also did not allege the date when the claim/bill was submitted to Defendant, other than stating that the bills were “submitted to [D]efendant more than 30 days ago” from the date of Plaintiff’s complaint which was dated as of November 1, 2018 (id.). Therefore, the accrual date of this No-Fault claim cannot be computed using this method. Since Defendant failed to establish the accrual date of Plaintiff’s claim, it cannot be determined if Plaintiff commenced action before expiration of the statute of limitations. Because Defendant did not meet its burden on its Motion to dismiss on the ground of statute of limitations, the Motion must be denied (see Richmond Pain Mgt., P.C. v Aetna/Travelers Ins. Co., 2013 NY Slip Op 50900[U] *2; EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720[U] *2); however, Defendant is not left without any other remedy.

To the extent that Defendant sought costs against Plaintiff for failing to oppose Defendant’s Motion, this Court finds that such conduct had not been shown “to delay or prolong the resolution of the litigation or to harass or maliciously injure another” (22 NYCRR 130-1.1[c][2]) as Defendant contended (Zhuoya Luo v Wensheng Wang, 176 AD3d 1016, 1018 [2d Dept 2019]). Therefore, the Court also denies Defendant’s request for costs as a sanction for frivolous conduct (22 NYCRR 130-1.1[a]).

IV. Order

Accordingly, it is

ORDERED that Defendant’s motion to dismiss Plaintiff’s complaint on the ground of statute of limitations is denied; and it is further

ORDERED that Defendant’s request for costs against Plaintiff is denied.

This constitutes the Decision and Order of the court.

Dated: December 21, 2021
Queens County Civil Court
____________________________

Honorable Wendy Changyong Li, J.C.C.