Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated October 11, 2022. The order, insofar as appealed from as limited by the brief, granted 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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court (Keisha M. Alleyne, J.) dated October 11, 2022 as granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

As the Civil Court observed, although plaintiff’s owner appeared at an EUO scheduled to be held on April 10, 2018, plaintiff’s counsel refused to permit plaintiff’s owner to answer any questions regarding the claim at issue and plaintiff’s counsel stated that defendant should “consider it a no show” (see Country-Wide Ins. Co. v Gotham Med., P.C., 154 AD3d 608 [2017] [appearing at an EUO and refusing to answer questions is a failure to comply with the request for an EUO]). Defendant subsequently timely scheduled four additional EUOs, the last of which was scheduled for September 6, 2018. Although plaintiff’s owner appeared on that date, he left before the EUO could begin. As a result, the Civil Court correctly held that defendant’s denial of claim on September 12, 2018, on the ground that plaintiff had failed to appear for duly scheduled EUOs, had been timely (see Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013 [2023]). Contrary to plaintiff’s contention, Quality Health Supply Corp. stands for the proposition that an insurer may choose to timely schedule more than two EUOs and a denial of the claim will be timely as long as it was issued in a timely manner after the last scheduled EUO.

Furthermore, defendant was not required to set forth objective reasons for requesting [*2]EUOs as, to make a prima facie showing of entitlement to summary judgment based on a failure to appear for an EUO, an insurer need only demonstrate as a matter of law that it duly scheduled at least two EUOs; that the party failed to appear as requested; and that the insurer timely issued a denial of the claim or claims on that ground “following the [] failure to appear at the last scheduled EUO” (Quality Health Supply Corp., 216 AD3d at 1014; see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).

Plaintiff’s remaining contentions lack merit.

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

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

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.

Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.

Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).

ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,

ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.

Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.

The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”^[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).

For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.

BUGGS, J.P., MUNDY J., concur.

HOM, J. Taking no part.

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

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.

The date by which an action must be commenced is determined by computing “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). A defendant asserting a statute of limitations defense must establish that the plaintiff commenced the action after the expiration of the statute of limitations (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). A no-fault cause of action against an insurance company must be commenced within six years after the cause of action accrues (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), and the cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino, 37 AD3d 775; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Where an insurance company fails to pay or deny a no-fault claim, “[a] first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim” (DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), absent proof of any tolling of the 30-day claim determination period. However, “where a no-fault claimant receives a denial of claim form prior to the expiration of the claim determination period, the claimant’s right to recover upon that claim accrues upon its receipt of the denial” (New Millennium Med. Imaging, P.C. v GEICO Ins. Co., 76 Misc 3d 31, 35 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] [emphasis omitted]). While defendant’s claims representative alleged, in an affidavit that defendant submitted in support of its motion to dismiss the complaint, that the claims at issue were denied, the affidavit failed to establish when the denials were received by, or even mailed to, plaintiff (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]), and there have been no allegations of any tolling. Thus, on the record before us, there is no basis to find that the causes of action accrued any earlier or later than 30 days after defendant received these claims (see DJS Med. Supplies, Inc., 2011 NY Slip Op 51304[U]).

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.