Index No. CV-750150-23/RI

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

Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:

Plaintiff, AVK RX Inc. (hereinafter “Plaintiff”) as assignee of Hassan Shauib (hereinafter “Assignor”) commenced this action against the defendant, Progressive Advanced Insurance Co. (hereinafter “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.

Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR §3212 granting summary judgment on the grounds that the Assignor violated a condition precedent to coverage upon the failure to attend scheduled medical examinations. The Plaintiff filed timely opposition to the motion and the matter was argued before the Court.

In this instance, the summons and complaint allege the Defendant breached the automobile insurance contract by failing to pay for medical treatment rendered to the Assignor arising from injuries that occurred due to a motor vehicle accident. The defense to the claim is the Assignor allegedly did not attend two duly scheduled independent medical exams (hereafter referred to as IME), which is a condition precedent to paying the claims. For the Defendant to [*2]prevail with the defense, it must demonstrate the policyholder/assignor was properly notified of the examinations and failed to attend.

The Plaintiff opposes the Defendant’s summary judgment motion alleging, inter alia, the Defendant has failed to meet its burden of proof to receive summary judgment by failing to demonstrate the IME notices were properly and timely mailed. In particular, the Plaintiff contends the affidavit of Ms. Tracy Simpson is not sufficient to meet the Defendant’s burden of proof of mailing.

The issue of what constitutes a party’s burden of proof of mailing for a summary judgment motion has been addressed by the Court in numerous cases. The Supreme Court, Appellate Division ruled in the matter of Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C.:

“Generally, ‘Proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee’ (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 114 AD3d 33, at P. 46, 977 N.Y.S.2d 292, affd. 25 NY3d 498). ‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.’ (Citing New York & Presbyt. Hosp. v. Allstate Inc. Co., 29 AD3d 547, quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680.) ‘However, for the presumption to arise the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed. See Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 (Court of Appeals, 1978).’ Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C., 139 AD3d 693 (Sup. Ct, App. Div., 2nd Dept., May 4, 2016).

In this matter, the Defendant offers the affidavit of Ms. Tracy Simpson, a Manager at ExamWorks, Inc., as evidence that the notice of the IME was properly addressed and mailed to the assignor/examinee. ExamWorks Inc. is a third-party vendor that schedules the IME’s, notifies the examinee, and provides the resulting doctor’s report on behalf of the Defendant. In her affidavit, Ms. Simpson does describe actual knowledge of the mailing of the notices for the IME to the Assignor. The Defendant offers Ms. Simpson’s affidavit to show the standard office practice or procedure to address and mail the vendor’s notices. The affidavit states that in the vendor’s regular course of business the Defendant requests a medical examination (although she does not state who receives the request), the vendor’s set up department enters the information provided by the Defendant, the scheduling department schedules the IME appointment, the data entry department enters the assignor/examinee’s address and prints the letter notifying the examinee of the appointment information, then transmits the document to the mailing department, which puts postage on the envelope and delivers the envelope to the U.S. Postal Service daily. Ms. Simpson also acknowledges it is her duty to ensure compliance with that process.

The Defendant alleges that this affidavit sufficiently proves the process or procedure used to properly address and mail the notice of the IME.

However, Ms. Simpson’s affidavit does not make any statement that she satisfied her duty to ensure compliance with the process, nor does she describe any steps taken to ensure the notice was addressed and mailed properly. For example, Ms. Simpson does not describe any audit, inventory, supervision, or investigation of the mail for that day to determine the process and [*3]procedures were compliant. Without any actual notice of the addressing and mailing of the notice of IME, this affidavit falls short of the “ensuring the likelihood that the item is always properly addressed and mailed.” (Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 [Court of Appeals, 1978]).

If the affidavit of Ms. Simpson does not prove the procedure or process is designed to ensure the items are properly addressed or mailed, then the Defendant can still prove the mailing of the IME notice by providing a business record to meet its burden of proof.

Attached to Ms. Simpson’s affidavit as exhibits, the Defendant offers the copies of the letters addressed to the Assignor evidencing the notice of the IME. Since the Plaintiff did not raise any issue of admissibility of the records in their opposition to the motion, the Court will not examine their admissibility. (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 AD3d 45 [2d Dept 2014]).

However, the Defendant did not offer any business record evidencing the mailing of the documents, such as a U.S. Postal Service receipt or an inventory of the outgoing mail. Therefore, Ms. Simpson’s affidavit is unsatisfactory for that purpose. “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.” (Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]).

Without proving a standard office practice or procedure designed to ensure that items are properly addressed and mailed or providing a business record evidencing the mailing of the document, the Defendant has failed to meet its burden of proof for summary judgment. Therefore, the Court finds there is an issue of fact for trial regarding whether the notices for the IME were properly addressed and mailed by the Defendant.

The Plaintiff also opposed the Defendant’s motion on the grounds that the affidavit of the Defendant’s claims examiner, Cynthia Morges, failed to prove the denial of the claim (NF-10) was timely issued, that the Defendant failed to act diligently, the Defendant failed to attach a copy of the policy at issue, and failed to demonstrate the IME was necessary. Given the Defendant’s failure to meet its first burden of proof, the Court does not address the Plaintiff’s other opposing arguments and leaves them to the Plaintiff to raise at trial if it shall so choose.

Accordingly, the Defendant’s summary judgment motion is DENIED.

Furthermore, the Plaintiff did not oppose the Defendant’s summary judgment motion on the grounds there was any outstanding discovery. Therefore, the Plaintiff is ordered to file the Notice of Trial within sixty (60) days of the date of this decision.

This is the decision and order of the Court.

Index No. CV-735910-23/RI

Matthew P. Blum, J.

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

Upon the foregoing cited papers and oral argument, the Decision/ Order on Defendant’s motion for Summary Judgment is granted for the following reason(s):

Defendant moves for Summary Judgment by arguing that Plaintiff failed to comply with the verification requests made within 120 days. Defendant argues that the bill in question was timely and properly denied because of Plaintiff’s failure to comply with the information requested from Plaintiff in accordance with 11 NYCRR §65-3.5(c). Plaintiff opposes Defendant’s motion arguing that the time Defendant had to pay or deny the claim had elapsed.

An insurer has 30 days from receipt of a completed application to pay or deny in whole or in part, a claim for No-Fault insurance benefits. 11 NYCRR §65-3.8. This period may be extended by a timely demand by the insurance company for further verification of a claim.11 NYCRR §65-3.8(a)(1); New Millenium Med. Imaging, P.C. v. Geico, 76 Misc 3d 31, 33 (App. Term 2d. Dep’t 2022). 11 NYCRR §65-3.5(b) states that subsequent to the receipt of the 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 §65-3.8(l) states that any deviation from the 15 days to request verification shall reduce the number of days to pay or deny the claim. Pursuant to 11 NYCRR §65-3.5(c), “the insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested”.

11 NYCRR §65-3.6(b) states that with regard to Verification Requests “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom [*2]the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested. A claim need not be paid or denied until all demanded verification is provided”. 11 NYCRR §65-3.8(b)(3). 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).

Here, Defendant received the bill in question on July 30, 2021. On August 12, 2021, an Examination Under Oath (hereinafter “EUO”) was conducted. On August 20, 2021, 8 days after the EUO, Defendant sent a verification request to Plaintiff requesting various items. After receiving an inadequate response from Plaintiff, on September 23, 2021, Defendant followed up with the same verification request. Ultimately, on December 30, 2021, Defendant issued a denial for the claim because Plaintiff had failed to respond adequately to the verification requests within 120 days of the initial request.

Plaintiff argues that Defendant has not met its burden for Summary Judgment as Defendant denied the bill in excess of 30 days after receipt. At oral argument, Plaintiff argued that the holding of the Burke case, Burke Physical Therapy, P.C. As Assignee of Rush, Kanice vs. State Farm Mutual Automobile Ins. Co., 2024 NY Slip Op 24111 (Sup. Ct. App. Term 2d. Dep’t 2024) applies and renders the denial untimely.

As noted earlier, the bill in question was received on July 30, 2021. Defendant had 30 calendar days from that date to either pay or deny the bill and 15 business days from that date to request verification. First, it should be noted that as for the EUO held on August 12, 2021, no information was provided by either side that states when the scheduling letter went out for this EUO to toll the 30 days to pay or deny the claim. Nevertheless, the scheduling letter is irrelevant in this particular case.

Defendant had 15 business days from July 30, 2021 to request additional verification. Defendant requests additional verification on August 20, 2021, 16 business days from July 30, 2021. As per the regulations, this delay is not fatal, rather it subtracts 1 day from the 30 days to pay or deny the claim. Therefore, this reduced the 30 total days to 29 calendar days to pay or deny the claim. As there is no evidence of tolling by way of a scheduling letter for the EUO conducted on August 12, 2021, Defendant would have 8 days left to pay or deny the claim as 21 days elapsed from July 30, 2021 to August 20, 2021. The time to pay or deny is tolled from August 20, 2021 by way of the verification letter.

Subsequently, on September 23, 2021, Defendant makes a follow up request. At that point, from August 20, 2021 to September 23, 2021, 30 days had passed without answer and Defendant had 10 days to follow up. Defendant followed up on the 3rd day of the allotted 10 days. On December 30, 2021, the claim was denied after Plaintiff failed to provide the requested verification within 120 days.

Plaintiff argues that the time Defendant had to pay or deny the claim, 30 days, had elapsed because applying the holding in the Burke, Defendant’s time was not tolled from the post-EUO verification request. However, the Court finds that the facts of Burke are not analogous with the facts in the case at bar. The most substantial distinction, and one that is the cornerstone of the Burke decision, is that here, the first verification requested after the EUO was made in a timely manner, namely, within 30 days to pay or deny the claim and just outside the [*3]15 business days to request verification, resulting in the loss of 1 day. Because that request was timely, the 30 day limit was tolled at the time of the verification, August 20, 2021. In Burke however, the post-EUO verification was not requested until well after the 15 business day limit had already elapsed. Thus, the 30 day time was not tolled.

Considering the applicable regulations and tolling periods as explained above, the Court finds that the requested verifications and denial by Defendant were proper and timely. Accordingly, the Court grants Defendant’s motion for Summary Judgment and dismisses Plaintiff’s complaint.

This constitutes the final Decision and Order of the Court.

Index No. CV-714236-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Gallo Vitucci Klar LLP for Defendant

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

After argument and upon the foregoing cited papers, the decision on Defendant’s motion and Plaintiff’s cross-motion is as follows:

Plaintiff, PAK HONG SIK MD MEDICAL CARE, P.C. (hereinafter, “Plaintiff”), as assignee of JOSE FELICIANO (hereinafter, “Assignor”), commenced this action against the defendant, OMNI INSURANCE COMPANY (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion (i) to dismiss for lack of personal jurisdiction and failure to state a cause of action and (ii) for summary judgment pursuant to CPLR 3212. Plaintiff cross-moved for a motion finding the Defendant in default for failing to interpose an Answer in this matter. The Defendant filed an affirmation in further support of its motion and in opposition to the cross-motion. The parties argued the motion before the undersigned on May 4, 2023, and the motion was marked submitted.

The Defendant moves to dismiss the matter on the grounds that this Court lacks personal jurisdiction over the Defendant. The Defendant argues that it is not licensed to issue insurance [*2]policies in New York or transact any business in New York. In support of its motion, Defendant presented an affidavit of Kim Blankenship, the Assistant Vice President of Operations of American Independent Companies Inc., (“AICI”) the alleged parent company of the Defendant. The Court notes that the affidavit was notarized in 2020 in Cobb County, Georgia and contains an unsigned certificate of conformity. While the lack of a certificate of conformity may be excused under CPLR 2001, the Court finds that the affidavit still predates the accident at issue by more than six months. Considering the Defendant’s motion is made more than 2 years after the affidavit was executed, the Defendant does not offer any reasonable explanation for failing to produce a contemporaneous affidavit.

The Defendant also submits a screenshot of a website entitled “NAIC.” The Court finds the screenshot of the NAIC website inadmissible for several reasons. The screenshot is not dated, does not have an accompanying affidavit explaining its origin, and does not list the website’s URL. While this website may be useful to the Defendant’s investigation, it is not offered in admissible form.

Also annexed to the Defendant’s motion is a NYS DMV MV-104 accident report (incorrectly labeled and referred to as a “Police Accident Report”). The Court takes judicial notice this is not a report issued or completed by the New York City Police Department. The accident report was allegedly completed and signed by Mr. Feliciano reporting the accident to the DMV listing the Defendant as his carrier. However, the state issuing the driver’s license and vehicle registration, along with the insurance code, are all missing from the document.

Defendant cites to Matter of Eagle Ins. Co. v Gutierrez-Guzman, a matter decided in 2005 by the Appellate Division, Second Department, in support of its motion (21 AD3d 489, 491 [2d Dept 2005]). In this case, the court found that the Supreme Court, Nassau County did not have personal jurisdiction over an insurance company named “American Independent Insurance Company” (“AIIC”). Defendant infers that AIIC and AICI are one in the same. However, there has been no evidence presented to demonstrate that the two companies are in fact the same entity or even the parent company of the Defendant. Assuming for a moment that AIIC and AICI are the same corporate entity, and the Defendant’s parent company, the Court does not find this decision binding since it was related to an accident that occurred over twenty years ago, and that the Defendant’s business practices in New York might have changed since the Appellate Division’s decision.

It should be noted that the Defendant brought a prior motion for identical relief that was denied by the undersigned in a decision and order dated January 30, 2023. In the prior order, the Court found Defendant’s unsigned affidavit of Ms. Blankenship to be defective and inadmissible. Inasmuch as the Defendant states that it disagrees with the Court’s prior order, there is no request before the Court to vacate the prior order.

In opposition, the Plaintiff argues that the Defendant is barred from bringing the instant motion due to the “single motion rule.” The Plaintiff also cites the “accident report” to support a finding of jurisdiction. The Court finds this to be a self-serving document signed by Mr. Feliciano in which any information relevant to jurisdiction is missing. In support of its cross-motion for a default judgment, the Plaintiff argues that the Defendant is in default for failing to file an answer within 30 days from the Court’s prior order, as it was directed to do.

DISCUSSION

Turning first to the branch of Defendant’s motion which is for summary judgment, that request must be denied. Since the Defendant has yet to file an answer, issue has not been joined, and any motion for summary judgment is improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). This does not bar the Defendant from bringing a motion for summary judgment once issue has been joined.

As to the Defendant’s motion to dismiss, this Court finds the Defendant is barred from seeking such relief in successive motions. CPLR 3211(e) states that “At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted” (emphasis added). Courts have consistently held this “single motion rule” to bar successive motions to dismiss (See Ramos v City of New York, 51 AD3d 753, 754 [2d Dept 2008]). The purpose of the single-motion rule is “not only to prevent delay before answer, but also to protect the pleader from being harassed by repeated CPLR 3211(a) motions and to conserve judicial resources” (Oakley v County of Nassau, 127 AD3d 946, 947 [2d Dept 2015] [internal quotation marks and citations omitted]). While the Defendant is barred from seeking pre-answer dismissal, the single motion rule will not prohibit the Defendant from seeking that relief in another form, such as a motion for summary judgment (See Id; Tapps of Nassau Supermarkets, Inc. v Linden Blvd., L.P., 269 AD2d 306, 307 [1st Dept 2000]).

The Court notes that if the Defendant’s motion was not barred by the “single motion rule,” the Defendant still failed to meet its entitlement to dismissal, based upon the defects and inadmissible evidence explained above.

As to the Plaintiff’s cross-motion, the Court finds that while the Defendant did not file an answer as directed by the Court, the Defendant did file this motion within 30 days of the Court’s prior order. Therefore, the Defendant is now placed on notice that this Court will not entertain any further pre-answer motions to dismiss and must interpose an answer in this matter.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its Answer within 14 days from the date of this Order; and it is further

ORDERED that the Plaintiff’s cross-motion is DENIED, with leave to renew should Defendant fail to timely file its Answer as directed herein by the Court.

The foregoing constitutes the Decision and Order of the Court.

Index No. CV-713066-22/RI

Kopelevich & Feldsherova PC for Plaintiff

Rossillo & Licata, PC for Defendant

Robert J. Helbock Jr., J.

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

Upon the foregoing cited papers, the decision on Defendant’s motion is as follows:

Plaintiff, SERGEY KALITENKO MD (hereinafter, “Plaintiff”), as assignee of NORMAN BARAHONA (hereinafter, “Assignor”), commenced this action against the defendant, INTEGON NATIONAL INS. CO. (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion for summary judgment pursuant to CPLR 3212 for an order dismissing the instant matter due to the Assignor’s failure to appear for duly noticed independent medical examinations and examinations under oath. Defendant submitted opposition to the motion; and the motion was argued before the undersigned on March 2, 2023.

DISCUSSION

The procedural history of this matter warrants an explanation before the Defendant’s instant motion may be discussed. The summons and complaint in this matter were filed by the Plaintiff on July 15, 2022. An affidavit of service was filed in this matter on August 26, 2022, demonstrating that service was made outside the City of New York, in Saddle Brook, New Jersey, on July 27, 2022. According to section 402(b) of the Civil Court Act, “If the summons is served by any means other than personal delivery to the defendant within the city of New York, it shall provide that the defendant must appear and answer within thirty days after proof of service is filed with the clerk.” In this matter, service was made outside the City of New York. Therefore, the Defendant had thirty days to file its answer from when the affidavit of service was filed with the Court (August 26, 2022). The Defendant filed its answer on October 4, 2022, more than the 30-day statutory period. Plaintiff filed a rejection of Defendant’s answer two days later on October 6, 2022. The Defendant filed the instant motion on December 1, 2022. Notably, Defendant did not move to compel the Plaintiff to accept its late answer.

Since Defendant’s answer was rejected, issue has not been joined, and Defendant’s motion for summary judgment was improper. The joinder of issue is a prerequisite that is “strictly adhered to” (City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]).

Under CPLR 3012(d), a court may “extend the time to appear or plead, or compel the acceptance of an untimely pleading, ‘upon such terms as may be just and upon a showing of reasonable excuse for delay or default'” (Bank of New York Mellon v Adago, 155 AD3d 594, 595 [2d Dept 2017]). This Court cannot sua sponte compel the Plaintiff to accept the Defendant’s untimely answer as no reasonable excuse for the default has been proffered by the Defendant. Therefore, before the Defendant’s motion for summary judgment can be decided, issue must be joined, by the acceptance of the Defendant’s untimely answer.

Accordingly, it is hereby

ORDERED that Defendant’s motion is DENIED without prejudice.

The foregoing constitutes the Decision and Order of the Court.

Index No. CV-701018-20/RI

Plaintiff’s Counsel
Joseph Sparacio Attorney At Law PLLC
292 Nelson Avenue
Staten Island, NY 10308
(718) 966-0055

Defendant’s Counsel
Law Offices of Tina Newson-Lee
PO Box 2904
Hartford, CT 06104
(917) 778-6500

MK Healthcare Medical PC (“MK Healthcare”) as assignee of Marleine Sully (“Assignor”) (collectively referred as “Plaintiff”), commenced this action to recover $913.39 in assigned first-party no-fault benefits from Defendant Travelers Insurance Company (“Defendant”).

Plaintiff represents that the Assignor sustained injuries during an accident that occurred on December 31, 2018, in which the Assignor was a front-seat passenger. According to the Plaintiff, Defendant improperly failed to pay for treatment rendered to the Assignor in connection with her alleged injuries in the amount of $913.39. Specifically, Plaintiff alleges that Defendant failed to pay for a “NCV w/f wave lower” (“F Wave”) and “Needle EMG lower” [*2](“EMG”) (collectively “Procedures”) performed on April 22, 2019. The Procedures were electrodiagnostic studies of the Assignor’s lower extremities. While Plaintiff argues that Defendant is responsible for paying for the Procedures, Defendant maintains that it was under no such obligation since the Procedures were not medically necessary.

On August 3, 2022, the Court held a virtual bench trial during which both Plaintiff and Defendant were represented by counsel. Pursuant to a stipulation entered into by the parties, Plaintiff and Defendant stipulated that MK Healthcare met its prima facie burden and consented to the admission of evidence, namely medical records, medical reports, expert witness disclosure, as well as portions of the Referral Guidelines for Electrodiagnostic Medicine Consultations. The parties also stipulated to the expertise of the Defendant’s expert, Ayman Hadhoud, M.D. (“Dr. Hadhoud”). Accordingly, the only matter at issue in the trial was whether Defendant’s denial of the claim on the ground of medical necessity was proper under Insurance Law § 5102[a][1].

Defendant’s sole witness was Dr. Hadhoud, a licensed physician and acupuncturist, who performed a peer review of MK Healthcare’s medical records. Dr. Hadhoud testified that Procedures prescribed by MK Healthcare (Richard A. Gasalberti, M.D.) were not medically necessary. Dr. Hadhoud testified as to his review of the relevant MK Healthcare records, which revealed that MK Healthcare recommended Assignor undergo “EMG/nerve conduction studies of the lower extremities to electrophysiologically document for lumbar radiculopathy.” Dr. Hadhoud testified that based upon his review of the medical records, the EMG was not necessary since the Assignor’s neurological exam was normal and there was no clinical presentation that would necessitate an EMG. Dr. Hadhoud further testified that considering the medical records from MK Healthcare, the F Wave was also not medically necessary because such procedure was not necessary in the context of ruling out radiculopathy in the Assignor.

The Court notes that during the trial, the Plaintiff did not call any witnesses. Furthermore, the only evidence that Plaintiff submitted in support of its claim that the Defendant violated Insurance Law § 5102[a][1] consisted of the documentary evidence that was stipulated into evidence by the parties.

Discussion

Under Insurance Law § 5101, “an insurer must pay first-party benefits of up to $50,000 per person to reimburse a person for covered ‘basic economic loss’ (Insurance Law 5102[a]), subject to the limitations of Insurance Law 5108.” (Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]). “The no-fault law defines “basic economic loss” (Insurance Law § 5102[a]) as ‘[a]ll necessary expenses incurred for: (i) medical, hospital … [and] surgical … services’ (id. § 5102[a][1][i]) as well as loss of earnings from work.” (Hernandez v Merchants Mut. Ins. Co., 206 AD3d 978, 979 [2d Dept 2022] (citing Insurance Law 5102[a][1]). See Govt. Employees Ins. Co. v Avanguard Med. Group, PLLC, 127 AD3d 60, 63 [2d Dept 2015], affd, 27 NY3d 22 [2016]; Forrest Chen Acupuncture Services, P.C. v Geico Ins. Co., 15 Misc 3d 137(A) [App Term 2007], affd, 54 AD3d 996 [2d Dept 2008]). As held by the Appellate Division, Second Department, “like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of ‘necessary expenses.'” (Hernandez v. Merchants Mut. Ins. Co., 206 AD3d [*3]978, 979 [2d Dept 2022] (citing to Long Is. Radiology v. Allstate Ins. Co., 36 AD3d 763, 764-65 [2d Dept 2007])).

The Court finds that based upon Defendant’s denial of claim forms and the findings of Dr. Hadhoud, encompassed in his testimony and report, Defendant sufficiently demonstrated that there was no medical necessity for the Procedures. (See Urban Radiology, P.C. v. Tri-State Consumer Ins. Co., 911 N.Y.S.2d 697 [App. Term, 2d Dept., 2010]). The Court found that Dr. Hadhoud’s testimony to be medically sound and credible. Dr. Hadhoud also sufficiently demonstrated that he relied upon his examination as well as his review of the Assignor’s medical records in order to reach his opinion that the Procedures were not medically necessary for the Assignor’s condition. Dr. Hadhoud’s testimony “demonstrated a factual basis and medical rationale for the determination that there was a lack of medical necessity” for the Procedures. (New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 52 Misc 3d 139(A) [App Term 2016]). Based upon the credible testimony of Dr. Hadhoud and the relevant medical records submitted to the Court during trial, the Court finds that Defendant met its burden and demonstrated its entitlement to judgment in its favor.

The Court further finds that Plaintiff failed to demonstrate its entitlement to judgment or otherwise rebut Defendant’s showing. As noted above, “Plaintiff called no witnesses to rebut the defendant’s showing of a lack of medical necessity.” (See New Horizon Surgical Ctr., L.L.C. v. Allstate Ins. Co., 41 N.Y.S.3d 720 [App. Term 2d Dept., 2016] (holding that the Civil Court should have dismissed the complaint after Plaintiff failed to call a witness to rebut Defendant’s showing of lack of medical necessity.”)). Furthermore, Plaintiff failed to submit any evidence, such as the testimony of the referring physician or of its own medical expert, to establish that the Procedures were medically necessary.

Accordingly, it is hereby

ORDERED that judgment is rendered in favor of Defendant; and it is

ORDERED that the matter is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: August 25, 2022
_____________________________
Staten Island, New York
Hon. Brendan T. Lantry
Judge of the Civil Court

[*1]

Civil Court of the City of New York, Richmond County, March 22, 2022

APPEARANCES OF COUNSEL

The Law Offices of Rubin & Nazarian for defendant.

Rizzo Law Group, PLLC, P.C. for plaintiff.

The decision on defendant’s motion for summary judgment is as follows:

Plaintiff, Kolb Radiology, P.C., as assignee of Claudia Walker (hereinafter, assignor), commenced this action against the defendant, Hereford Insurance Company, to recover assigned first-party no-fault benefits for medical treatment provided to assignor in the amount of $1,791.73.

Currently before the court is defendant’s motion seeking an order pursuant to CPLR 3212 granting summary judgment and dismissing plaintiff’s complaint as premature in that there are outstanding responses to defendant’s verification requests. By way of a cross motion, plaintiff submitted opposition to defendant’s motion. Defendant filed an affirmation in further support to its motion and in opposition to plaintiff’s cross motion. The motion was argued before the undersigned February 17, 2022, and submitted for decision.

Defendant moves for summary judgment dismissing plaintiff’s complaint on the grounds that defendant established its prima facie case in that plaintiff’s claim is premature as responses are outstanding to defendant’s verification requests. Plaintiff argues that its response to defendant’s request was made on August 28, 2020, with all documents in its control or possession. Plaintiff also cross-moves for summary judgment on the grounds that it has established its prima facie entitlement to judgment.

A motion for summary judgment should be granted if “upon all the papers and proof submitted, the cause of action . . . shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any [of the] part[ies]” (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 AD3d 111, 125 [2d Dept 2015], citing Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966]).{**75 Misc 3d at 325}

The issue presented in the instant motion appears to be one of first impression in Richmond County, and a relatively novel issue in the Civil Court of New York City.^[FN*] The plaintiff performed an MRI that was billed and submitted to the defendant pursuant to the no-fault insurance regulations and subject to the applicable fee schedule. The defendant received the bills and made a timely demand for verification documents, which included a copy of the MRI films. The plaintiff responded to the verification demands but did not supply the MRI films requested by the defendant. Instead, the plaintiff demanded the payment of a $5 fee, as provided in ground rule 8 of the Workers’ Compensation Fee Schedule. The defendant replied to plaintiff stating its response was incomplete and improper but did not specifically address the demand for the payment of the fee. The result was a stalemate that must now be decided by this court.

The no-fault insurance system was established to expedite medical treatment and payment for injuries arising from motor vehicle accidents. In this instance, the plaintiff provided the MRI diagnostic test to the injured party, relying upon the contractual and statutory obligation of the defendant to pay for necessary health care pursuant to the fee schedule. Similarly, the plaintiff should have provided the films requested by the defendant and then billed defendant the statutory costs of $5. Instead, the plaintiff refused to provide the MRI films until it received the $5 from defendant. That act appears to this court to be more shortsighted than productive.

Conversely, the defendant received the demand for $5 and instead of promising or making payment of the $5, the defendant responded that the plaintiff only partially complied with the verification request and demanded the full compliance. An insurer is statutorily required to pay or deny a claim within 30 calendar days after proof of claim is received (11 NYCRR 65-3.8 [a]), but the deadline may be extended if the insurer makes a timely demand for additional verification of the claim (id. § 65-3.5; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [2d Dept 1999]).

What concerns the court is that the defendant’s response appears strategic, aimed at promoting further litigation and thus delaying payment, rather than responding and addressing the{**75 Misc 3d at 326} dispute that was delaying the plaintiff’s compliance with the verification request.

For guidance, the court looks to the Office of the General Counsel of the NYS Department of Financial Services (formerly the State Insurance Department) that issued an opinion on April 4, 2008 (Ops Gen Counsel NY Ins Dept No. 08-04-08 [Apr. 2008]) entitled “Reproduction Cost of a Magnetic Resonance Imaging (‘MRI’) Film Necessary to Verify a No-Fault Insurance Claim.” That opinion directs that if the original MRI films are provided to the insurance company, then there is no charge. If a copy is provided to the insurance company, then the insurance company must pay the fee schedule rate. Since there is an option of producing an original or a reproduction, logically speaking, the insurance company would have to receive the reproduced MRI films first before payment would be made.

In this instance, the defendant would have had to receive the MRI film reproductions, and once in receipt of the copies, made payment to plaintiff. While this process appears overly bureaucratic, it is the procedure directed by the fee schedule.

Since both parties acknowledge that the films were not provided, and they were requested as part of the verification request, the fact that the defendant did not pay for the films in advance is not a sufficient justification for the delay in complying with the verification request.

Therefore, the defendant’s motion is granted, and the matter is dismissed without prejudice as premature. Plaintiff’s cross motion is denied without prejudice as moot.

Footnotes

CV-706933-20/RI

Sanders Barshay Grossman, LLC for Plaintiff;

Burke, Conway & Stiefeld For Defendant

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

Papers Numbered

Amended Notice of Motion and Affirmation/Affidavit annexed 1-2

Affirmation in Opposition 3

Affirmation in Reply 4

Upon the foregoing cited papers, the decision on Defendant’s Motion to Dismiss is as follows:

Plaintiff, Happy Apple Medical Services, PC (hereinafter, “Plaintiff”), as assignee of Mario Eustache (hereinafter, “Assignor”), commenced this action against the defendant, Liberty Mutual Insurance Company (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR 3211(a)(2) dismissing Plaintiff’s complaint for lack of subject matter jurisdiction. Plaintiff submitted opposition to Defendant’s motion, and Defendant submitted an affirmation in reply. The motion was deemed submitted and decision was reserved.

Defendant moves to dismiss Plaintiff’s complaint on the grounds that this Court lacks subject matter jurisdiction over the underlying causes of action. Specifically, Defendant argues that as the New York State Workers’ Compensation Board (the “Board”) has found the underlying action to be a work-related accident, the Board has exclusive jurisdiction over all [*2]workers’ compensation claims. Defendant argues this claim is not covered under its policy.^[FN1] Therefore, Defendant argues, the complaint must be dismissed because the underlying accident was determined by the Board to be work-related.

In opposition, Plaintiff argues that Defendant’s policy exclusion defense should be precluded because the defense was not timely raised by a denial of the bill within 30 days of the submission of the claim (see Ins. Law 5106(a); 11 NYCRR 65-3.8(c)). The Plaintiff argues that there are only four exceptions to preclusion all involving “lack of insurance coverage” and since the exclusion due to a work-related injury is not one of them, Defendant’s motion should fail. The Plaintiff does not make any argument regarding the subject matter jurisdiction of the Court.

Discussion

Defendant is correct in noting that the Board has jurisdiction over the determination of whether an accident occurred within the scope of a claimant’s employment (O’Rourke v Long, 41 NY2d 219, 228 [1976]). The Court of Appeals has ruled that the Board has “the primary jurisdiction, but not necessarily exclusive jurisdiction, in factual contexts concerning compensability.” (Liss v Trans Auto Sys, 68 NY2d 15, 20 [1986]). “When the question is purely one of fact, the Workers’ Compensation Board has exclusive jurisdiction over the issue and it is only when the issue involves statutory construction that the trial court may hear the issue” (Gyory v Radgowsk, 89 AD2d 867, 869 [2d Dept 1982]). Therefore, it is outside this Court’s jurisdiction to make a factual determination as to the eligibility of a claimant for workers’ compensation benefits.

However, Plaintiff has not asked this Court to make such a determination. The causes of action before this Court seek monetary damages relating to unpaid invoices and attorneys’ fees in accordance with a no-fault insurance policy allegedly issued by Defendant to Assignor. This determination is squarely within the Civil Court’s jurisdiction (NY City Civ Ct Act § 202). The fact that the Assignor’s accident was deemed to have been work-related does not divest the Civil Court of its jurisdiction. Rather the Board’s determination is relevant to the extent that “workers’ compensation benefits serve as an offset against first-party benefits payable under no-fault as compensation for ‘basic economic loss'” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [2d Dept 1991]; Ins. Law § 5102(b)(2)).

Defendant’s motion mischaracterizes the underlying action as a claim for payment under a workers’ compensation insurance policy, rather than, as pleaded, for payment of benefits pursuant to a no-fault insurance policy. Therein lies the error of Defendant’s argument. The law provides the Defendant with a valid defense to such a Civil Court action — an exclusion from the no-fault insurance policy from payment in instances of a work-related accident.

The Insurance Law and corresponding regulations require the service of a timely denial of the payment of the bill upon the health care provider within 30 days to exercise the exclusion (Ins. Law § 5106(a); 11 NYCRR 65-3.8(c)). Defendant has failed not only to present any policy documentation but also a denial form, timely or otherwise. As such, that issue is not before the [*3]Court. Any discussion or argument pertaining to Defendant’s denial and issues of preclusion are not applicable to the current motion.

The sole question before this Court in the instant motion is whether the Court has subject matter jurisdiction. The matter before the Court is not a determination of a workers’ compensation claim, but rather a claim for reimbursement under a no-fault automobile insurance policy. The availability of workers’ compensation benefits can serve as a defense to the No-Fault claim, but it does not invalidate the Civil Court’s subject matter jurisdiction. This Court has jurisdiction to adjudicate the causes of action as it relates to the reimbursement and defenses under the no-fault insurance policy. The Defendant’s motion makes no other argument to justify the dismissal of the complaint other than alleging a lack of subject matter jurisdiction of the no-fault insurance claim.

Accordingly, the Defendant’s motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 13, 2021

Staten Island, New York

Hon. Robert J. Helbock, Jr.

Judge, Civil Court

Footnotes

Footnote 1:While New York law permits No-Fault policies to exclude payment for treatment of work-related injuries (11 NYCRR 65-3.16), the Defendant did not offer a copy of the no-fault insurance contract containing such an exclusion. However, the Court assumes the exclusion applies as a matter of the regular industry practice. However, this assumption, without admissible evidence, does not factor into the Court’s decision.

[*1]

Civil Court of the City of New York, Richmond County, November 12, 2019

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Offices of Gabriel & Shapiro, Wantagh, for plaintiff.

{**66 Misc 3d at 420}This action for first-party no-fault benefits arises out of a motor vehicle accident that occurred on August 2, 2014, involving plaintiff’s assignor, Chetram Paraboo. Due to the injuries that he sustained in the accident, plaintiff’s assignor received treatment at Krasner Chiropractic, P.C. (hereinafter, plaintiff). Plaintiff commenced this action seeking to recover $1,754.62 for services that were performed between August 4, 2014, and January 15, 2015, plus statutory interest and attorney’s fees.

Defendant IDS Property & Casualty Insurance Company now moves for summary judgment dismissing the complaint pursuant to CPLR 3212. Defendant argues it is entitled to summary judgment as the subject occurrence was not a covered event as it was an intentional act and plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim. Alternatively, defendant argues that it is entitled to summary judgment based upon plaintiff provider’s failure to appear for duly scheduled examinations under oath (EUOs) or partial summary judgment as to defendant’s prima facie case.

Plaintiff cross-moves for partial summary judgment as to its own prima facie case and opposes defendant’s motion. In response, defendant has submitted opposition to plaintiff’s cross motion.

In support of its motion, defendant submits the affidavit of Michael A. Callinan, Esq., of Bruno, Gerbino & Soriano, LLP, and the affidavits of senior special investigator James Glampe and litigation examiner Carrie Erickson. Defendant also submits copies of the police accident report relating to the subject occurrence and the EUO transcripts of Liloutie Sydnor (nonparty owner of the vehicle operated by nonparty Lisa Brown) taken on October 13, 2014; of plaintiff’s assignor, Chetram Paraboo, taken on November 24, 2014; of Lisa Brown (nonparty operator of the vehicle in which plaintiff’s assignor was a passenger) taken on December 2, 2014; and of Glenis Brown (nonparty husband of Liloutie Sydnor and the father of operator Lisa Brown) taken on March 23, 2015.

In his affidavit, Mr. Glampe states that the subject occurrence was not a covered event in that it was an intentional or staged act. He selectively provides a recitation of alleged discrepancies in the testimony of each of the above stated EUO witnesses regarding the subject occurrence. He also claims that the police accident report relating to the subject occurrence {**66 Misc 3d at 421}and a witness stated that the driver of the host vehicle, nonparty Lisa Brown, was attempting to make an extremely dangerous and illegal right turn.^[FN1]

In his affidavit, Mr. Callinan states that he is a partner with the firm of Bruno, Gerbino & Soriano, LLP, attorneys for defendant. In that capacity, he is personally responsible for the day-to-day handling of the within matter and all claims referred to his firm by defendant and its parent company Ameriprise Financial, Inc. Mr. Callinan sets forth the policies and procedures relating to the scheduling, confirmation and taking of EUOs in the ordinary course of business for the within matter. According to Mr. Callinan, in an effort to verify the medical bills for treatment rendered an EUO of plaintiff provider was scheduled for January 19, 2015, and February 27, 2015 (see defendant’s moving papers at exhibits S, T, X). The EUO request, dated December 19, 2014,^[FN2] scheduled the EUO of plaintiff provider for January 19, 2015. An amended EUO request, dated December 24, 2014,^[FN3] was sent requesting the EUO for the same date. On January 15, 2015, a letter was received from plaintiff’s counsel advising that plaintiff provider would not appear at the scheduled EUO since the claims had been denied. In response, defendant sent a letter acknowledging plaintiff’s letter, advising that the previously denied claims were being reconsidered and requesting alternate dates for the EUO. On January 19, 2015, plaintiff provider failed to appear for the EUO, and defendant proceeded to place a statement on the record. A second EUO request letter, dated January 22,{**66 Misc 3d at 422} 2015,^[FN4] scheduled the EUO for February 27, 2015. On or about January 23, 2015, and February 2, 2015, correspondence was exchanged between the attorneys as to defendant’s previously issued denials and the status of plaintiff provider’s claims in light of Lisa Brown’s request to be provided with another opportunity to appear for her EUO. By letter, dated February 25, 2015,^[FN5] defendant reiterated to plaintiff provider’s counsel that the previously denied claims were being reconsidered and to provide dates upon which plaintiff provider would be available to appear for an EUO. On February 27, 2015, plaintiff provider failed to appear, and a statement was placed on the record. Mr. Callinan was present in his office on January 19, 2015, and February 27, 2015. If plaintiff provider had appeared for its EUO on either day, he personally would have conducted said examination.

In her affidavit, Ms. Erickson initially states that an investigation of the subject occurrence determined that it was a staged intentional loss rather than an accident. She also asserts that plaintiff provider failed to appear for three EUOs^[FN6] that were needed to determine the facts of the alleged loss and{**66 Misc 3d at 423} to verify that all treatment and medical supplies billed on behalf of plaintiff’s assignor were received. She further asserts that each of the five claimed bills was denied within 30 days of receipt or within 30 days of plaintiff’s failure to appear for an EUO.^[FN7] Ms. Erickson also sets forth the policies and procedures utilized in the regular course of business for the creation and maintenance of delay letters with the explanation of benefits and the denial of claim forms—including those relating to the within matter (see defendant’s moving papers at exhibits D, E, F, G, H, I, J, L). She also sets forth the policies and procedures by which mail is received and sent from defendant’s offices and the methods by which the dates of same are recorded in the appropriate claim files.

In opposition to defendant’s motion and in support of its cross motion, plaintiff argues that defendant has failed to demonstrate that the subject incident was not a covered event; defendant’s denials are late and invalid as defendant failed to establish that it properly sought the EUOs; defendant deliberately defaulted plaintiff at the EUOs; defendant never formally rescinded its earlier denials; and there is no authority which would allow defendant to belatedly assert a new defense or issue verification requests beyond the statutory deadline. Plaintiff also argues that the testimony contained within the above stated affidavit of Ms. Erickson and the NF-3s annexed{**66 Misc 3d at 424} to defendant’s moving papers as exhibit C clearly demonstrate and establish plaintiff’s prima facie case.

Defendant opposes the within cross motion arguing that plaintiff has failed to establish that defendant failed to timely deny any of the claims at issue or prove its prima facie case that the prescribed statutory billing forms had been mailed and received, and that the payment of the no-fault benefits was overdue.

The portion of defendant’s motion seeking summary judgment on the basis that the subject occurrence was not a covered event because it was an intentional act and that plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim is denied. Defendant has failed to make a prima facie showing of entitlement to summary judgment. While assorted portions of the EUO testimony offered by the above stated affiants do conflict, said conflicts serve to create, rather than remove, issues of fact regarding how the subject occurrence took place. Furthermore, even if the above stated police accident report were in admissible form, which it is not as it is not certified as a business record pursuant to CPLR 4518, the officer did not witness or perform any investigation into the occurrence.

The portion of defendant’s motion seeking summary judgment on the basis that plaintiff failed to appear for a duly scheduled EUO is also denied and the defense of EUO no-show is precluded. As noted above, defendant initially requested plaintiff provider’s appearance at an EUO after it had received and denied plaintiff provider’s first three bills on the basis that the subject occurrence was not a covered event and that plaintiff’s assignor, Chetram Paraboo, had failed to appear for an EUO. Defendant’s request for plaintiff provider’s appearance at an EUO was sent after the denial of the first three bills and prior to defendant’s receipt of bills 4 and 5. At the time of the initial EUO request of plaintiff provider, there were no outstanding bills or claims.

This is a case of first impression wherein the defendant, after issuing a denial for one or more timely submitted claims, without notice to the plaintiff, decides to “reconsider” said claims while demanding that plaintiff provider appear for an EUO relating to the previously denied claims. The legislature established specific and uniform guidelines relating to the time and way no-fault claims are submitted, reviewed and denied. In Dermatossian v New York City Tr. Auth. (67 NY2d 219, 225 [1986]), the Court of Appeals stated that{**66 Misc 3d at 425}

“[t]o implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations (see,11 NYCRR 65.15) are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays. Permitting evidence in a personal injury lawsuit of the fact that the defendant (if self-insured) or its insurer had paid the plaintiff the statutorily obligated first-party benefits would unquestionably frustrate the very purpose of the No-Fault Law by discouraging insurers from making prompt and voluntary payment of claims.”

There is no provision or exception in the no-fault statutes that provides for the defendant to unilaterally “review” cases again. This would obviate the intent and purpose of the No-Fault Law and create a dangerous precedent that could be used by defendants to improperly request additional verification such as EUOs or independent medical examinations.

Defendant is bound by its denials of November 17, 2014, and November 25, 2014 (see exhibits E, F, H of defendant’s moving papers), thereby making any EUO request of plaintiff provider untimely. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross motion is granted to the extent that plaintiff has demonstrated its prima facie case. The sole issue for trial is whether this is a covered event due to misrepresentations of the facts or it being a staged accident.

The remaining contentions of the parties are denied as moot.

Footnotes

Footnote 1:The court is given pause by what appears to be an attempt by defendant, through Mr. Glampe, to mislead this court. Defendant has clearly cherry-picked portions of the police accident report (see exhibit M of defendant’s moving papers) entitled “Accident Description/Officer’s Notes.” A whole reading of the section finds that it actually states:

“At t/p/o driver #1 states while driving W/B N. Conduit third lane/right lane driver #2 went from the middle lane attempted to make illegal right on Dumont causing her vehicle to collide with driver #2; Driver #2 states while driving straight on N. Conduit driver #1 rear ended her causing collision. No injuries; witness added to report.”

The police officer did not witness the incident and there are no affidavits from the driver of vehicle number 1 or the listed witness.

Footnote 3:Which addresses EIP/Claimant: Liloutie Sydnor and Lisa Brown (see exhibit T of defendant’s moving papers).

Footnote 4:Which addresses EIP/Claimant: Liloutie Sydnor & Lisa Brown (see exhibit X of defendant’s moving papers).

Footnote 5:Responding to a letter from plaintiff’s counsel that was received on February 24, 2015. Said letter requested proof that the previous denials had been properly rescinded and advised that plaintiff would not be available to appear for an EUO on February 27, 2015.

Footnote 6:Scheduling letters annexed to defendant’s moving papers as exhibits S, T and X only address EUOs scheduled for January 19, 2015, and February 27, 2015. Bills 1-3 were denied by defendant prior to the issuance of defendant’s first letter, dated December 19, 2014, requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibit S). Defendant’s second EUO letter, dated December 24, 2014 (prior to defendant’s receipt of bills 4 and 5), informed plaintiff provider’s attorney for the first time that defendant had elected to reconsider plaintiff’s previously submitted claims based on the request of Lisa Brown and plaintiff’s assignor Chetram Paraboo for an additional opportunity to appear at an EUO (see defendant’s moving papers at exhibit T). Said letter solely addressed the first three bills that had previously been submitted and were denied prior to defendant’s first EUO letter requesting that plaintiff provider appear for an EUO (see defendant’s moving papers at exhibits S, T). Defendant’s third letter, dated January 15, 2015, confirms receipt of a letter from plaintiff’s counsel advising that plaintiff would not appear at the EUO scheduled for January 19, 2015, and advised that based on the request of Lisa Brown to appear at an EUO, the claims for the first three bills were reopened and would be considered for payment (see defendant’s moving papers at exhibits U, V). As such, defendant would reschedule plaintiff’s EUO one final time (see defendant’s moving papers at exhibit V). Defendant’s letter of January 22, 2015 (see defendant’s moving papers at exhibit X), attempts to relate back to defendant’s original request of December 24, 2014 (which requested an EUO relating to the bills that had already been denied), as opposed to any new bills (i.e., bill 4 or 5) that may have been received. In addition, despite multiple requests from plaintiff’s counsel, defendant never advised plaintiff provider whether the previously served denials were formerly rescinded and never requested that plaintiff appear for EUOs relating to bills 4 or 5 as each succeeding letter from the defendant related to the initial EUO letter (see defendant’s moving papers at exhibits S, T, U, V, X, Y, Z, AA, BB).

Footnote 7:Bill 1 for date(s) of service (DOS) August 4, 2014-September 3, 2014, was received on September 22, 2014, delayed on October 8, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 2 for DOS September 4, 2014-September 25, 2014, was received on October 6, 2014, delayed on October 20, 2014, denied on November 17, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 3 for DOS October 10, 2014, was received on November 17, 2014, denied on November 25, 2014, and re-denied on March 19, 2015, and July 7, 2015; bill 4 for DOS November 20, 2014-December 17, 2014, was received on December 29, 2014, allegedly delayed on January 12, 2015, and February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015; bill 5 for DOS December 30, 2014-January 15, 2015, was received on February 5, 2015, allegedly delayed on February 12, 2015, denied on March 12, 2015, and re-denied on July 7, 2015 (see affidavit of Carrie Erickson ¶ 9; defendant’s moving papers at exhibits D-L).

[*1]

Civil Court of the City of New York, Richmond County, February 7, 2018

APPEARANCES OF COUNSEL

Baker Sanders, L.L.C., Garden City, for plaintiff.

Law Offices of Daniel J. Tucker, Brooklyn, for defendant.

American Transit Insurance Company (hereinafter, defendant) filed this motion to stay the action pending a determination from the Workers’ Compensation Board (hereinafter, the Board) on whether Chiropractic Testing Services of New York (hereinafter, plaintiff) could be paid for treatment of Nelson De La Cruz (hereinafter, assignor) under workers’ compensation. Defendant claims that since assignor was injured in the course of employment, his claims should be covered by workers’ compensation and not personal injury protection and, therefore, the matter must be adjudicated by the Board before it reaches this court.

Plaintiff argues that in order for the court to stay the proceeding, defendant must establish the existence of an employer-employee relationship, citing Matter of Global Liberty Ins. Co. v Abdelhaq (36 AD3d 909 [2d Dept 2007]) where a stay was denied because the claimant failed to submit evidence that the cab driver’s base was his employer at the time of the accident. This case is distinguishable from Global Liberty, however, because assignor did not own his vehicle. Here, American United Transportation (hereinafter, the cab company) owned the vehicle and was named as the insured on the automobile insurance policy.

According to Workers’ Compensation Law § 2 (3), a livery base shall be deemed the “employer” of a driver if it must register with the Taxi & Limousine Commission and is [*2]not an “independent livery base” as defined in section 18-c.^[FN1] Even in cases where the driver owned the vehicle and paid for its fuel and{**59 Misc 3d at 252} maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher’s sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted control over which calls he would pick up and how much he could charge (see Matter of Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).

Insurance Law § 5102 (b) (2) states that a no-fault claimant is entitled to reimbursement for economic loss less amounts “recovered or recoverable” from workers’ compensation benefits. The Court of Appeals has held that a no-fault insurer may attain “party in interest” status to a Board proceeding, upon the discretion of the Workers’ Compensation Law Judge (WCLJ), while the WCLJ makes the determination whether an employer-employee relationship existed (Liss v Trans Auto Sys., 68 NY2d 15 [1986]). The courts have consistently ruled that the legislature has vested “primary jurisdiction” in the Board over the issue of the availability of coverage under the Workers’ Compensation Law, and that plaintiffs have “no choice but to litigate this issue before the Board” (id. at 21).

The Court of Appeals has further held that, where the availability of workers’ compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions (O’Rourke v Long, 41 NY2d 219, 228 [1976]). Essentially, where a determination as to whether an accident arose out of a plaintiff’s employment is likely to require extensive fact-finding, the court should, “in the exercise of sound discretion,” defer to the Board (Jing Huo Lac v American Tr. Ins. Co., 19 Misc 3d 1146[A], 2008 NY Slip Op 51177[U], *3 [2008], citing Weber v State of New York, 104 Misc 2d 947 [Ct Cl 1980]).

Defendant need not prove that assignor was employed by the cab company at the time of the accident, but merely show “potential merit” to its claim so as to trigger a determination by the Board (A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).^[FN2]

In this case, we do not know the degree of control exerted by the cab company over assignor, but that should not preclude{**59 Misc 3d at 253} plaintiff’s duty to seek recovery under workers’ compensation. The facts that the cab company owned the vehicle involved in the accident and is named as the insured on its automobile policy show “potential merit” that the cab company is not an independent livery base and, therefore, assignor would be covered under workers’ compensation.

The motion to stay is granted, pending a determination by the Workers’ Compensation Board on the parties’ rights under the Workers’ Compensation Law.

In the event plaintiff fails to file proof with the court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the court shall grant [*3]summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

Footnotes

Footnote 1:The Board designates a livery base as an “independent livery base” if the: (a) base is not the owner/registrant of any vehicle it dispatches; (b) drivers use their own clothing; (c) drivers set their own schedules; (d) drivers select which dispatches they want to pick up; (e) drivers are free to contract with other bases; (f) base does not issue a W-2 or any federal withholding; (g) drivers pay for their own fuel and maintenance for the vehicle; (h) base does not issue fines or penalties except refusal to provide dispatches in response to driver misconduct; and (i) driver cannot be fired or discharged.

Footnote 2:Plaintiff produced assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor was not working, and was not en route to or from work at the time of the accident; defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the [assignor] was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report.