Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Thomas Torto, for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered March 17, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about February 9, 1999, arising from an accident that occurred on September 24, 1998, was settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 17, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.

Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR 65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action [*2]is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 17, 2017 is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

Marshall & Marshall, PLLC (Frank D’Esposito and David Gierasch of counsel), for appellant. Dash Law Firm, P.C. (James Errera of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 6, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC Insurance Company) appeals from an order of the District Court dated July 1, 2021 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

Defendant established its prima facie entitlement to summary judgment by submitting evidence demonstrating that it timely denied plaintiff’s claim submitted in January 2018 for no-fault benefits, on the ground of untimeliness, as the claim was submitted more than 45 days after the date services were rendered (see 11 NYCRR 65-1.1) and that its denial informed plaintiff that it could excuse the delay if plaintiff provided “reasonable justification” for the late [*2]submission (see 11 NYCRR 65-3.3 [e]; Stand-Up MRI of the Bronx, P.C. v MVAIC Ins. Co., 76 Misc 3d 128[A], 2022 NY Slip Op 50789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; Mount Sinai Hosp. of Queens v Country Wide Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50780[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; see also Schottenstein Pain & Neuro, PLLC v MVAIC, 72 Misc 3d 131[A], 2021 NY Slip Op 50643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether it provided defendant with a reasonable justification for its untimely submission of the claim, as plaintiff failed to explain why, after learning that there was no insurance covering the accident, it first submitted the claim to the assignor’s personal health insurer instead of MVAIC, and why it took months before it first purportedly sent the claim to MVAIC (see Stand-Up MRI of the Bronx, P.C., 2022 NY Slip Op 50789[U]; Excel Surgery Ctr., LLC v MVAIC, 68 Misc 3d 134[A], 2020 NY Slip Op 51016[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; Mount Sinai Hosp. of Queens, 2014 NY Slip Op 50780[U]; see also Schottenstein Pain & Neuro, PLLC, 2021 NY Slip Op 50643[U]).

Plaintiff also failed to raise a triable issue of fact as to whether it actually first submitted the claim to MVAIC on October 17, 2017, the basis for plaintiff’s argument that defendant’s February 5, 2018 denial was untimely. To establish this mailing, plaintiff neither presented an affidavit by one with personal knowledge of the mailing nor provided sufficient practices and procedures of mailing, but rather relied on a certificate of mailing, which, under the circumstances presented, was insufficient to fill in the gaps in plaintiff’s proof of mailing.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.

Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik 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 September 6, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the action was premature as plaintiff had failed to respond to defendant’s timely requests for additional verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered September 6, 2019, insofar as appealed from as limited by the brief, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint and granted plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that it had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to raise an issue of fact as to whether 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]). As a result, there is an issue of fact as to whether plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is modified by providing that plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decided on September 23, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander and Christopher Volpe of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), dated October 9, 2020. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order dated October 9, 2020, the Civil Court granted defendant’s motion and dismissed the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification, and denied plaintiff’s cross motion.

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received all of the requested verification. In opposition, plaintiff’s owner merely stated that he had mailed the requested verification “to the extent such response was proper and in [his] possession.” In addition, the day after plaintiff’s owner purportedly mailed its response to defendant’s verification requests, an attorney representing plaintiff provided part of the requested verification, stating that plaintiff was not providing the [*2]remainder of defendant’s requested verification because plaintiff believed the remaining requests were objectionable. Thus, contrary to plaintiff’s contention on appeal, plaintiff failed to establish a triable issue of fact by demonstrating that it had provided the requested verification or had set forth a reasonable justification for the failure to comply with defendant’s verification requests (see 11 NYCRR 65-3.8 [b] [3]). Consequently, we find no basis to disturb the order (see Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50623[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; CPM Med Supply, Inc. v State Farm Fire & Cas. Ins. Co., 63 Misc 3d 140[A], 2019 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

Decided on September 23, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander and Christopher Volpe of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), entered February 26, 2021. 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 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions on appeal with respect to defendant’s motion, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and plaintiff failed to raise a triable issue of fact with respect to the timeliness of the mailings. Plaintiff’s contention that the initial EUO scheduling letter, which was mailed prior to the receipt of the claims at issue [*2]here, was required to be sent to plaintiff’s assignor within 15 business days of defendant’s receipt of either the NF-2 form or a claim received from another provider lacks merit (see 11 NYCRR 65-3.5 [b]; Appendix 13; UGP Acupuncture, P.C. v Metlife Auto & Home, 76 Misc 3d 129[A], 2022 NY Slip Op 50792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50606[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Columbus Imaging Ctr., LLC v Erie Ins. Co. of NY, 75 Misc 3d 137[A], 2022 NY Slip Op 50569[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).

Accordingly, the order is affirmed.

WESTON, J.P., GOLIA and BUGGS, JJ., concur.

Robyn M. Brilliant, P.C. (Tori Y. Buttrum 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 (Ira R. Greenberg, J.), entered December 3, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled independent medical examinations.

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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff’s assignor failed to appear for scheduled IMEs.

Contrary to the determination of the Civil Court, defendant demonstrated that, before it [*2]had received the claim at issue, it properly scheduled IMEs of plaintiff’s assignor, and that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant also demonstrated that it timely denied the claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), based upon the assignor’s failure to appear for the IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendants’ motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from so much of an order of the Civil Court as denied defendants’ motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.

In support of a cross motion for summary judgment, plaintiff submitted an affidavit by plaintiff’s owner who asserted that the subject claim forms were submitted to defendants on or before October 20, 2007, that the claims had not been paid, and that statutory interest was to be computed as of 30 days after each claim’s submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff’s owner, must be deemed to have been in November 2007, that is, 30 days after defendants’ receipt of the claims (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], [*2]2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2018, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendants’ motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.