Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered June 20, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings in favor of plaintiff.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action commenced by a provider on January 23, 2018 to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that the statute of limitations had expired, as the claims “became overdue 30 days from the date of receipt of the bills by” defendant. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant appeals from so much of an order of the Civil Court (Odessa Kennedy, J.) entered June 20, 2019 as denied defendant’s motion to dismiss the complaint and, upon, in effect, denying plaintiff’s cross-motion for summary judgment, made, in effect, CPLR 3212 (g) findings limiting the issues for trial to “defendant’s mailing of the denials and the defenses raised in those [*2]denials based on IME cut off and statute of limitation[s].” On appeal, defendant argues that the claims became overdue upon plaintiff’s receipt of the denial of claim forms mailed by defendant.

A review of the record (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]) reveals that defendant has admitted receiving the claim forms underlying the first and second causes of action on November 28, 2011. Since the instant action was commenced on January 23, 2018, plaintiff’s first and second causes of action were commenced after the statute of limitations had elapsed (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

However, contrary to defendant’s contention, the record does not establish, as a matter of law, that the third, fourth, fifth, and sixth causes of action were commenced after the statute of limitations had elapsed. Plaintiff mailed the claim forms underlying the third, fourth and fifth causes of action on December 28, 2011 and the claim forms underlying the sixth cause of action on January 22, 2012. If defendant received the earliest of these on January 3, 2012, as it claimed in its motion, then these causes of action were timely commenced on January 23, 2018 in the absence of proof that defendant issued denials that resulted in earlier accrual dates (see New [*3]Millennium Med. Imaging, P.C., 76 Misc 3d at 35). Thus, defendant did not establish on this record that these causes of action were commenced after the statute of limitations had elapsed.

Finally, defendant fails to articulate a sufficient basis to strike the Civil Court’s findings, in effect, pursuant to CPLR 3212 (g), limiting the issues for trial (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking to dismiss the first and second causes of action are granted.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.

Decision Date: August 30, 2024

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Derefim B. Neckles, J.), dated June 14, 2023, as amended by an order of that court dated January 12, 2024. The order, as amended, denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, as amended, is modified by providing that defendant’s cross-motion for summary judgment dismissing the complaint is denied; as so modified, the order, as amended, is affirmed, without costs.

In November 2018, plaintiff John A. Nasrinpay commenced this action against defendant “National General Insurance Company” to recover assigned first-party no-fault benefits for services he rendered to his assignor, who was allegedly injured in an automobile accident on September 28, 2017. In September 2018, “National General Insurance Online, Inc.” and New South Insurance Company brought a declaratory judgment action in the Supreme Court, Nassau County, against John A. Nasrinpay and his assignor herein, Pouchon Cange, among other parties, pertaining to the September 28, 2017 accident and then moved for a default judgment against John A. Nasrinpay and Cange, among others, when they failed to answer or appear. Insofar as is relevant to this appeal, Nasrinpay opposed the motion and Cange did not. In a default judgment [*2]entered November 13, 2019 against Cange, among others, and a separate default judgment entered November 21, 2019 against Nasrinpay, among others, the Supreme Court declared that the September 28, 2017 incident was a “Staged Accident” and that “National General Insurance Online, Inc.” and New South Insurance Company were not obligated to pay claims for reimbursement submitted by Cange and Nasrinpay, respectively, arising from that incident.

Subsequently, Nasrinpay moved in the Civil Court for summary judgment, asserting that he had provided medically necessary services to his assignor, that the relevant claim form was mailed to defendant “National General Insurance Company,” and that defendant had failed to pay or deny the claim. Defendant cross-moved for summary judgment dismissing the complaint on the ground of res judicata or collateral estoppel, based on the aforementioned November 13 and 21, 2019 Supreme Court default declaratory judgments. Nasrinpay appeals from an order of the Civil Court dated June 14, 2023, as amended by an order dated January 12, 2024, denying his motion for summary judgment and granting defendant’s cross-motion for summary judgment dismissing the complaint based on the default declaratory judgments issued in the Supreme Court action.

The doctrine of res judicata generally requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Moreover, collateral estoppel precludes a party from relitigating an issue where “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While “[a]n issue is not actually litigated if, for example, there has been a default” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), collateral estoppel may be applied to default judgments where the party against whom preclusion is sought appears in the prior action (see Miller v Falco, 170 AD3d 707 [2019]).

It was National General Insurance Online, Inc., not defendant herein, that obtained the default declaratory judgment relied upon by defendant for its preclusion argument and, therefore, there is no res judicata effect based on National General Insurance Online, Inc.’s default declaratory judgment against Nasrinpay. Indeed, there has been no attempt to demonstrate that defendant is, in fact, National General Insurance Online, Inc., or even that National General Insurance Online, Inc., and not defendant, is “the proper insurer,” requiring the dismissal of the complaint on that basis (see Quality Health Supply Corp., 2020 NY Slip Op 50996[U]). Moreover, as Nasrinpay did not appear in the declaratory judgment action, he did not have a full [*3]and fair opportunity to litigate whether the September 28, 2017 incident was a staged accident and, therefore, there is no collateral estoppel effect against him based on the default declaratory judgment (see Kaufman, 65 NY2d at 456-457). Thus, the Civil Court should have denied defendant’s cross-motion.

Nasrinpay’s motion for summary judgment was likewise properly denied, as Nasrinpay did not submit any evidence of an address for defendant, and thus failed to establish that the prescribed statutory claim form had been received by defendant (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). In any event, there is a triable issue of fact as to whether defendant was an insurer for this accident.

Accordingly, the order, as amended, is modified by providing that defendant’s cross-motion for summary judgment dismissing the complaint is denied.

BUGGS, J.P., MUNDY and HOM, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated September 20, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross-motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross-motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel defendant to comply with its discovery demands. Thereafter, defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for three duly scheduled examinations under oath (EUOs) on May 17, 2019, June 17, 2019, and June 20, 2019, and plaintiff “cross-moved” for summary judgment. The Civil Court denied plaintiff’s motion to compel discovery as moot, and upon denying both parties’ “cross-motions” for summary judgment, made CPLR 3212 (g) findings in both parties’ favor, including that defendant had established that plaintiff’s assignor failed to appear for an EUO on May 17, 2019, that the EUO scheduled for June 17, 2019 was mutually rescheduled, and that the claim was timely denied. The Civil Court also held that there were triable issues of fact regarding “whether [d]efendant’s third [EUO] notice under the circumstances was reasonable and [*2]whether [d]efendant properly notified the eligible injured person of the location of the third scheduled EUO appointment” to be held on June 20, 2019.

Defendant is entitled to summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear at duly scheduled EUOs on May 17, 2019 and June 20, 2019. The record indicates that, prior to the time plaintiff’s assignor was supposed to appear, during a phone call between plaintiff’s assignor and defendant’s counsel’s office on June 17, 2019, the second EUO originally scheduled for June 17, 2019, was rescheduled, at plaintiff’s assignor’s request, to June 20, 2019. Defendant submitted prima facie evidence that plaintiff’s assignor was orally informed of the date, time, and location of the follow-up EUO scheduled for June 20, 2019 during the phone call on June 17, 2019, and plaintiff failed to submit an affidavit from someone with personal knowledge to rebut this evidence (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As plaintiff’s assignor specifically requested that the second EUO be rescheduled to June 20, 2019, a mere three days later, this method of notice was sufficient (see 11 NYCRR 65-3.6 [b]). It is immaterial that plaintiff’s assignor may not have received written confirmation of the date, time, and location of the rescheduled EUO before June 20, 2019, since the no-fault regulations do not require notice of an EUO to be provided in writing (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]). As it is undisputed that defendant timely scheduled EUOs of plaintiff’s assignor, that plaintiff’s assignor failed to appear at EUOs on May 17, 2019 and June 20, 2019, and that the claim was timely denied within 30 days of June 20, 2019, defendant’s cross-motion for summary judgment dismissing the complaint should have been granted (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross-motion for summary judgment dismissing the complaint is granted.

OTTLEY, J.P., BUGGS and HOM, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated February 16, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Sandra E. Roper, J.) granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross-motion for summary judgment while declining to consider additional papers submitted by plaintiff in support of what it denominated as an amended cross-motion for summary judgment and opposition to defendant’s motion.

The affidavit submitted by plaintiff in its initial opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to respond to defendant’s timely requests for additional verification, should have been denied.

Contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought by defendant herein in the Supreme Court, Nassau County, has no preclusive effect on this case, as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co., — Misc 3d —, 2024 NY Slip Op 24111, *3-4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]; Metro Health Prods., Inc. v [*2]Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the subsequent submission of that decision and order in support of plaintiff’s “amended” cross-motion for summary judgment.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) which granted defendant’s motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.

Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc 3d 145[A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and we do not consider it.

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered December 7, 2022. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident that occurred on April 23, 2014, plaintiff appeals from so much of an order of the Civil Court (Rupert V. Barry, J.) as granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant, the policy had been cancelled, prior to the accident at issue, by letter sent to the insured on February 24, 2014, effective March 8, 2014, for nonpayment of the premium.

On appeal, neither party disputes that Florida law applies, which law requires that a notice of cancellation of a policy for nonpayment of an insurance premium be “mailed or delivered” to the insured 10 days prior to the effective cancellation date (see Fla Stat Ann § 627.728 [3] [a]). In 2014, Florida Statutes § 627.728 (5) provided as follows:

“United States postal proof of mailing or certified or registered mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation, or of the intention of the insurer to issue a policy by an insurer under the same ownership or management, to the first-named insured at the address shown in the policy shall be sufficient proof of notice.”

For purposes of this statute, “United States postal proof of mailing . . . means a United States postal proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co. v Cayre, 785 So 2d 656, 658 [Fla Dist Ct App, 3d Dist 2001]).

In support of its motion, defendant submitted a “Certificate of Mail List” which lists various mailings, including one to the insured; however, that list is not date-stamped or signed or otherwise marked in any way by the USPS. The only proof of mailing submitted by defendant that was certified by the USPS is a Certificate of Bulk Mailing, which shows that over 2,000 pieces of mail were sent on the day in question. Defendant failed to show that this form constituted “proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co., 785 So 2d at 658). Indeed, according to the USPS website, a Certificate of Bulk Mailing “is used to specify only the number of identical-weight pieces mailed; it does not provide evidence that a piece was mailed to a particular address” (see Munger v Infinity Ins. Co., 2015 WL 5922185, *6, 2015 US Dist LEXIS 138294, *14-15 [MD Fla, Oct. 9, 2015, No. 8:14—cv—914—T—36JSS] [“a Certificate of Bulk Mailing for the Nonpay Notice . . . does not qualify as a United States postal proof of mailing, since it only acknowledges that a certain number of pieces of mail were included in a particular bulk mailing”]). Similarly, the affidavit submitted by defendant in support of its claim of having provided notice to its insured failed to demonstrate actual mailing or that defendant had mailed the cancellation notice in accordance with its standard office practices and procedures (see Aries Ins. Co., 785 So 2d at 660; see also St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, the Civil Court should have denied the branch of defendant’s motion which sought to dismiss the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.

Plaintiff’s cross-motion for summary judgment was properly denied, as the affidavit plaintiff submitted in support of its cross-motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated September 16, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint and denying, as moot, plaintiff’s cross-motion for summary judgment while declining to consider plaintiff’s additional papers submitted in support of its cross-motion for summary judgment.

Defendant moved for summary judgment on the ground that it had timely and properly denied plaintiff’s claims based upon plaintiff’s failure to timely provide requested written verification (see 11 NYCRR 65-3.5 [o]). According to defendant, after receipt of the subject NF-3 forms on July 23, 2018 and July 30, 2018, it mailed a letter to plaintiff on August 14, 2018 scheduling an examination under oath (EUO) to be held on September 14, 2018. Plaintiff appeared at the EUO on September 14, 2018. Defendant then requested written verification from plaintiff by letter dated September 18, 2018, with a follow up to that request dated October 19, 2018. On February 4, 2019, defendant denied the claims based upon plaintiff’s failure to provide [*2]the requested written verification within 120 days of the September 18, 2018 request. Contrary to the holding of the Civil Court, we find that defendant did not establish that it had timely denied the claims at issue.

Upon receipt of a “prescribed verification form” such as an NF-3 form (titled “verification of treatment by attending physician or other provider of health service”) or an NF-4 form (titled “verification of hospital treatment”), the no-fault regulations grant an insurer the opportunity to request “additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). 11 NYCRR 65-3.5 (b) provides that “[a]ny [additional verification] shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added). An insurer is required to pay or deny a claim within 30 calendar days of its receipt of proof of claim, which consists of a prescribed verification form and any properly requested additional verification (see 11 NYCRR 65-3.8 [a]). The only exception to the 15-business-day deadline to request additional verification can be found in 11 NYCRR 65-3.8 (l), which provides, insofar as is relevant here, that any deviation from the time frame set forth in 11 NYCRR 65-3.5 (b) reduces the 30 days to pay or deny a claim by the same number of days that the request for additional verification was made after the 15th business day. (Thus, while defendant’s EUO scheduling letter was one day “late” with respect to the NF-3 form, which, defendant asserts, it received on July 23, 2018, the only effect of that delay would be to reduce the time to pay or deny that claim from 30 days to 29 days. For purposes of this discussion, the scheduling letter will be referred to as “timely.”) Here, defendant’s September 18, 2018 request was made nearly 60 days after receipt of the first NF-3 form and more than 50 days after receipt of the second NF-3 form.

Defendant’s argument on appeal is that its August 14, 2018 EUO scheduling letter tolled “the time within which it had to pay or deny plaintiff’s claim until it received all additional verification,” including what was requested for the first time in the September 18, 2018 letter. We agree that defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter, which letter was “timely” issued pursuant to 11 NYCRR 65-3.5 (b) and 65-3.8 (l), but, contrary to defendant’s apparent position, that toll expired on September 14, 2018 when the EUO was conducted and proof of claim became complete (see 11 NYCRR 65-3.8 [a] [1] [“No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (emphasis added)]). In any event, defendant’s argument misconstrues both 11 NYCRR 65-3.8 (a), the regulatory basis for tolling, and 11 NYCRR 65-3.5 (b), which permits an insurer to request additional verification within 15 business days of receipt of a prescribed verification form. It was defendant’s time to pay or deny plaintiff’s claims that was tolled, pursuant to 11 NYCRR 65-3.8 (a), by the timely EUO scheduling letter—not defendant’s time to request additional verification under 11 NYCRR 65-3.5 (b). Any requests for additional verification must be made within 15 business days of receipt of the prescribed verification form, subject to the minor allowance set forth in 11 NYCRR 65-3.8 (l), and, as previously explained by this court, the regulations do not provide that a toll of the time to pay or deny a claim created by a timely additional verification request also “grants an insurer additional opportunities to make [*3]requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Indeed, an original request for additional verification (see 11 NYCRR 65-3.5 [b]) made more than 30 calendar days after receipt of a prescribed verification form, i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Slip Op 51220[U]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]).

We note that there is another provision in the regulations regarding additional verification, 11 NYCRR 65-3.6 (b), which states that, “[a]t a minimum, if any requested verifications [i.e., additional verification] 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 the verification was requested.” In Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013, 1014 [2023]), the Appellate Division, Second Department, held that 11 NYCRR 65-3.6 (b) permitted a no-fault insurer, where there had been an “original” request for an EUO that was timely made pursuant to 11 NYCRR 65-3.5 (b), and for which there was no appearance, to follow up on that request as often as the insurer found necessary, while the initial toll of the insurer’s time to pay or deny the claim continued, as long as such follow-up requests were “timely and proper[ ].” Neither 11 NYCRR 65-3.6 (b) nor the holding in Quality Health Supply Corp. v Nationwide Ins. is applicable to the determination of this case for two reasons. First, plaintiff herein complied with defendant’s original request for additional verification by appearing for an EUO on September 14, 2018; in other words, here, the “timely” requested additional verification was “supplied,” whereas 11 NYCRR 65-3.6 (b) only applies where the additional verification “has not been supplied.” Second, the September 18, 2018 request at issue is an “original request” seeking new verification, not a “follow up” of an “original request” seeking verification that has already been requested and “has not been supplied” by “the party from whom the verification was requested,” as was the case in Quality Health Supply Corp. v Nationwide Ins.

In view of the foregoing, defendant failed to demonstrate that it timely denied the claims at issue and therefore that it was not precluded from raising the defense upon which its motion for summary judgment was based (see 11 NYCRR 65-3.8 [a] [1]; RA Med. Servs., P.C. v Lancer Ins. Co., 76 Misc 3d 129[A], 2022 NY Slip Op 50793[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Neptune Med. Care, P.C., 2015 NY Slip Op 51220[U], *1-2; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]; cf. Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Consequently, plaintiff correctly argues that defendant’s motion for summary judgment should have been denied.

Plaintiff’s cross-motion for summary judgment, although no longer moot, was properly denied, as plaintiff failed to demonstrate the absence of any material issue of fact (see CPLR 3212 [b]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Finally, contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no [*4]preclusive effect on this case as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the submission of that decision and order.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

Law Offices of Brian Rayhill (Lawrence Wolkow of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered February 8, 2023. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not an eligible injured person (EIP) for receipt of no-fault benefits as his injuries did not arise from the use or operation of an insured vehicle (see Insurance Law § 5103; 11 NYCRR 65-1.1 [d] [a]). Defendant contended that plaintiff’s assignor’s injuries were the result of an assault after the subject motor vehicle accident, relying on the truth of plaintiff’s assignor’s factual assertions contained within uncertified records of the Kings County Hospital Center, where plaintiff’s assignor was admitted one hour after the subject accident. Conceding that the statements were hearsay, defendant’s attorney argued that they were admissible as exceptions as party statements and/or statements relevant to diagnosis and treatment. By order entered February 8, 2023, insofar as appealed from, the Civil Court denied defendant’s motion.

A review of the records shows that, contrary to defendant’s contentions, defendant failed to establish, as a matter of law, that plaintiff’s assignor was not an EIP as defined by the [*2]Insurance Law and no-fault regulations. Hospital and medical records are admissible to support a summary judgment motion if the records are certified pursuant to CPLR 4518 (c) or the proponent of the records submits foundational testimony pursuant to CPLR 4518 (a) (see Berkovits v Chaaya, 138 AD3d 1050 [2016]; Matter of Kai B., 38 AD3d 882 [2007]). Here, as plaintiff correctly contends, the hospital records were not certified and defendant failed to otherwise establish a proper foundation for their admissibility. Therefore, the statements relied upon by defendant were not admissible (see Yassin v Blackman, 188 AD3d 62 [2020]; Berkovits, 138 AD3d 1050; Matter of Kai B., 38 AD3d 882). Consequently, defendant failed to proffer competent evidence to establish, as a matter of law, its defense that plaintiff’s assignor was not an EIP (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and defendant’s motion was properly denied.

It is noted that, even if the hospital records and the statements contained therein were admissible, defendant would still not be entitled to summary judgment dismissing the complaint, as defendant’s motion failed to eliminate all material questions of fact as to whether plaintiff’s assignor’s injuries were the result of an assault and not the result of the use or operation of a motor vehicle.

Accordingly, the order, insofar as appealed from, is affirmed.

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered April 29, 2022. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branches of defendant’s motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

For each bill at issue, defendant established prima facie that it timely mailed initial and [*2]follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]). To the extent that the District Court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, we note that the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered June 21, 2022. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.8 [l]). In addition, defendant submitted affidavits by its attorney who was scheduled to conduct the EUOs, as well as certified transcripts of the attorney’s statements of the nonappearances, which were sufficient to establish plaintiff’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], [*2]2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). To the extent the court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.