(See, e.g. , American Transit Ins. Co. v. Martinez , 2020 NY Slip Op 50930[U] [Sup Ct, NY County Aug. 21, 2020] ; American Transit Ins. Co. v. Reynoso , 2020 WL 5524771 [Sup Ct, NY County Sept. 11, 2020].) Instead, this court has held that under the decisions of the Appellate Division, First Department, in American Transit Ins. Co. v. Longevity Med. Supply, Inc. (131 AD3d 841, 841 [1st Dept 2015] ), and Mapfre Ins. Co. of NY v. Manoo (140 AD3d 468, 469 [1st Dept 2016] ), American Transit also must satisfy one of two additional elements to show its entitlement to summary judgment. First , American Transit could establish that it has met the timeliness requirements of 11 NYCRR § 65-3.5 (b) and (d) through evidence that it requested an IME or EUO within 15 business days of receiving claimant's NF-3 verification forms or bills submitted by the injured person's medical providers (see 11 NYCRR § 65-3.5 [b] ), and (in the case of an IME) scheduled the IME to be held within 30 calendar days of receipt of those forms.

To constitute an actual conflict, the "laws in question must provide different substantive rules in each jurisdiction that are relevant to the issue at hand and have a significant possible effect on the outcome of the trial" (Elmaliach v Bank of China Ltd., 110 AD3d at 200 [internal quotation marks, citations and emphasis omitted]). Under New York law, where an injured party is seeking no-fault auto insurance benefits, but fails to appear for an IME reasonably requested by the insurer, it is a breach of a condition precedent to coverage under the no-fault insurance policy (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] ). Similarly, under Virginia law, an insured's refusal to submit to a reasonably requested IME is a breach of a condition precedent to coverage, and relieves the insurer of its duty under the auto policy (see Allstate Ins. Co. v Eaton, 248 Va 426, 430-431 [Va 1994] [Va Code § 38.2-2201, 2202 (A), the medical payments statutes, do not conflict with insurance policy requiring IMEs, and insured's refusal to appear for IME was a breach of insurance policy]).

"[T]he First Department has now made clear that an insurer must affirmatively establish that it complied with the no-fault insurance regulations governing the Claim Procedure which prescribe specific time frames for requesting and scheduling EUOs and IMEs, in order to satisfy its prima facie burden on a motion for summary judgment declaring that no coverage exists based on the failure of a claimant or medical provider to appear for an EUO or IME." (Unitrin Advantage Ins. Co. v. Better Health Care Chiropractic, P.C., 2016 WL 2606744 [N.Y.Sup. May 4, 2016], *2, citing Am. Transit Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841, 849 [1st Dept 2015]). 11 NYCRR 65-3.5 sets forth the claim procedure that applies to insurers who seek to verify claims.

II. Claimant-Defendants' Breach of Conditions Precedent to Coverage To be entitled to declaratory judgment, an insurer must affirmatively demonstrate that it requested the EUOs and IMEs in accordance with the procedures and time frames set forth in 11 NYCRR 65-3.5 (see American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). EUOs and IMEs are considered to be part of an insurer's "entitlement to additional verification" following receipt of a provider's statutory claim forms.

The failure to appear for a properly scheduled medical examination (ME) requested by the insurer "when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy" and vitiates coverage ab initio ( Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [internal quotation marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient's failure to appear for an ME, the insurer must establish that it requested MEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear ( American Tr. Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841, 841–842, 17 N.Y.S.3d 1 [1st Dept. 2015] ). As defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims ( 11 NYCRR 65–3.5 [b],[d]), plaintiff failed to establish its prima facie entitlement to summary judgment ( Longevity Med. Supply, 131 A.D.3d at 841–842, 17 N.Y.S.3d 1 ; seeKemper Independence Ins. Co. v. Adelaida Physical Therapy, P.C., 147 A.D.3d 437, 438, 46 N.Y.S.3d 579 [1st Dept. 2017] ).

The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer "when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy" and vitiates coverage ab initio ( Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept. 2011], lv denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient's failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear ( American Tr. Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841, 841–842, 17 N.Y.S.3d 1 [1st Dept. 2015] ). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims ( 11 NYCRR 65–3.5 [b],[d]), plaintiff failed to establish its prima facie entitlement to summary judgment ( Longevity Med. Supply, 131 A.D.3d at 841–842, 17 N.Y.S.3d 1 ; seeKemper Independence Ins. Co. v. Adelaida Physical Therapy, P.C., 147 A.D.3d 437, 438, 46 N.Y.S.3d 579 [1st Dept. 2017] ).

, lv. denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No–Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v. Perez, 112 A.D.3d 483, 976 N.Y.S.2d 378 [1st Dept.2013] ). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65–3.5(d), which prescribes a 30–calendar–day time frame for the holding of IMEs ( see W.H.O. Acupuncture, P.C. v. Travelers Home & Mar. Ins. Co., 36 Misc.3d 152[A], 2012 N.Y. Slip Op. 51707 [U], 2012 WL 3887524 [App.Term, 2d Dept.2012]; American Tr. Ins. Co. v. Jorge, 2014 N.Y. Slip Op. 30720[U], 2014 WL 1262582 [Sup.Ct., N.Y. County 2014] ). For the reasons set forth in American Tr. Ins. Co. v. Longevity Med. Supply, Inc. (Appeal No. 14682, 131 A.D.3d 841, 17 N.Y.S.3d 1, 2015 WL 5331257 [1st Dept.2015] [decided simultaneously herewith] ), we disagree with the dissent's view that this issue should not be reviewed because it was raised for the first time on appeal. All concur except FRIEDMAN, J.P. who dissents in a memorandum as follows:FRIEDMAN, J.P. (dissenting).

omobile accident date of 04/25/2019. Here, the Court finds that although defendant established that the notices of the scheduled orthopedic IME's were properly mailed in accordance with defendant's standard office practice and procedures (seeSt. Vincent's Hosp. of Richmond v GEICO , 50 AD3d 1123 [2nd Dept 2008] ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d, 11th & 13th Jud Dists 2007] ), and that plaintiff's assignor failed to appear at each of the IME's (seeStephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720,721 [2nd Dept 2006] ; Utopia Equipment, Inc. v ELRAC, Inc. ,56 Misc 3d 134[A] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]), defendant failed to demonstrate that the scheduling of the orthopedic IME's complied with Regulation 11 NYCRR § 65-3.5 [d], which prescribes a statutory 30-calendar-day time frame for the timely holding of IME's, from the date of receipt of the verification forms or claims (seeAmerican Tr. Ins. Co. v Longevity Med. Supply, Inc. , 131 AD3d 841, 841 [1st Dept 2015] ), or that the 30-day period was tolled by a proper verification request (seeNyack Hosp. v Encompass Ins. Co. , 23 AD3d 535 [2nd Dept 2005] ; 11 NYCRR 65-3.5 ).

A plaintiff that seeks entry of a default judgment for a defendant's failure to answer the complaint must submit proof of service of the summons and complaint upon the defendant, proof of the facts constituting the claim, and proof of the defendant's default (CPLR 3215[a], [f]; Rivera v Correction Officer L. Banks, 135 AD3d 621 [1st Dept 2016]). Where an insurer seeks a declaratory judgment regarding the denial of no-fault benefits for a failure to appear at an IME, it must also submit proof establishing that it complied with the timeliness requirements of 11 NYCRR 65-3.5 in order to meet its burden of filing "proof of the facts constituting the claim" for a default judgment (American Transit Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each procedural and timeliness requirement of 11 NYCRR 65-3.5 and 3.6, which governs the handling of no-fault claims. American Transit Ins. Co. v. Longevity, 131 A.D.3d 841, 841 (1st Dep't 2015). Section 65-3.5 provides, in relevant part that, once an insurer receives the verification forms for a pending claim for benefits, the insurer then has 15 days to seek further verification by, for example, requesting an examination under oath or an independent medical examination.