Opinion
CV-739339-17/KI
07-13-2021
MSB PHYSICAL THERAPY, P.C. a/a/o Bright, Sayquan U, Plaintiff, v. NATIONWIDE INS., Defendant.
Hollander Legal Group, P.C., Melville (Jonathan Drapan of counsel), for Nationwide Ins., defendant. The Rybak Firm, LLC, New York City (Oleg Rybak of counsel), for MSB Physical Therapy P.C., plaintiff.
Hollander Legal Group, P.C., Melville (Jonathan Drapan of counsel), for Nationwide Ins., defendant.
The Rybak Firm, LLC, New York City (Oleg Rybak of counsel), for MSB Physical Therapy P.C., plaintiff.
Richard Tsai, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion, Affirmation and Affidavits Annexed
Exhibits A-Z 1-18
Notice of Cross Motion, Affirmation in Support of Cross Motion and In Opposition to Motion, Affidavits Annexed Exhibits 1-8 19-22
Affirmation in Opposition to Cross Motion Exhibits A-B 23-24
Replying Affidavits NONE
In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint on the ground that plaintiff failed to appear at duly scheduled Examinations Under Oath (EUOs) on four separate occasions (Motion Seq. No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant, or in the alternative, moves for an order compelling defendant to provide discovery (Motion Seq. No. 002). Defendant opposes the cross motion.
The issue presented is whether plaintiff raised triable issues of fact as to whether plaintiff had failed to appear at the EUOs, where defendant refused plaintiff's requests to reschedule the EUOs for lengthy adjournments of two to three months. Additionally, another issue presented is whether the EUOs scheduled before defendant received the bills at issue tolled the 30-day period for defendant to pay or otherwise deny the bills received, where the record contains no evidence that defendant had otherwise sent any requests for additional verification during the relevant 30-day periods for some of those bills.
A prior decision and order dated July 12, 2021 decided both the motion and cross motion. However, that decision and order is hereby recalled and vacated, because this court inadvertently overlooked defendant's opposition papers to plaintiff's cross motion, which are now considered in this amended decision and order.
BACKGROUND
On September 7, 2016, plaintiff's assignor, Sayquan U. Bright, was allegedly injured in a motor vehicle accident (see defendant's exhibit A in support of motion, complaint ¶ 2). This action concerns eight bills for dates of service during the period of January 13, 2017 through February 15, 2017:
| Bill | Dates of Service | Billed Amount | Defendant's Exhibit |
| 1 | 1/13/2017 | $184.43 | E |
| 2 | 1/18/2017 | $184.43 | F |
| 3 | 1/19/2017-1/26/2017 | $184.92 | G |
| 4 | 1/19/2017-1/26/2017 | $219.87 | G |
| 5 | 1/19/2017-1/26/2017 | $148.50 | G |
| 6 | 2/3/2017-2/15/2017 | $247.50 | H |
| 7 | 2/3/2017-2/15/2017 | $366.45 | H |
| 8 | 2/3/2017-2/15/2017 | $308.20 | H |
(see defendant's exhibits E-H in support of motion).
EUO of plaintiff on November 21, 2016
Prior to the alleged receipt of the bills, by a letter dated November 8, 2016, purportedly sent by certified mailed and first class mail to plaintiff, defendant's counsel scheduled an EUO of plaintiff on November 21, 2016 at 2:00 p.m., at its office in Melville, New York, regarding 14 claimants which plaintiff treated, including Bright (see defendant's exhibit I in support of motion, scheduling letter).
By a letter dated November 17, 2016 (four days before the scheduled EUO), purportedly sent by fax, the Rybak Firm PLLC responded that it represented plaintiff, requested that the EUO be rescheduled to a location in Brooklyn, New York, and advised that plaintiff "will be unavailable for the months of November and December due to the upcoming seasonal holidays" (defendant's exhibit J in support of motion). Plaintiff's counsel also noted that the EUO date conflicted with another scheduled EUO for a different medical provider which plaintiff's counsel represented (id. ). Plaintiff's counsel therefore requested that plaintiff's EUO be rescheduled to January, and requested reimbursement of $1,500 per claimant prior to the commencement of the EUO (id. ). In closing, the letter stated, "Your failure to respond to this letter at least three (3) business days prior to the next scheduled EUO will be deemed a waiver of Nationwide's rights to conduct EUO for the above named assignee(s)" (id. ).
According to defendant's counsel, Allan S. Hollander, plaintiff failed to appear at the EUO, and counsel placed a statement on the record accordingly at 2:53 p.m. (see defendant's exhibit K in support of motion, aff of Allan S. Hollander ¶ 5 and tr. at 5). Hollander stated that plaintiff's counsel "asked for a date in January ... and I responded to him via a letter, that we would select a date in January to conduct his client's examination under oath" (tr. at 6).
EUO of plaintiff on January 23, 2017
By a letter dated November 22, 2016, purportedly sent by first class mail to plaintiff's counsel, defendant's counsel scheduled an EUO of plaintiff on January 23, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding the 14 claimants, including Bright (see defendant's exhibit L in support of motion, scheduling letter). The letter further stated,
"Provided your client appears at the examination under oath and answers questions with respect to the corporate structure of MSB Physical Therapy and the treatment of the patients named herein, Nationwide will honor your client's reimbursement request and present your client a check for $1,500.00. Nationwide will show your client the check prior to the examination under oath and will provide your client with the check subsequent to its completion"
(id. ). By a letter dated November 28, 2016, purportedly sent by first class mail to plaintiff's counsel, defendant's counsel again notified plaintiff of the EUO on January 23, 2017 at 11:00 a.m. in Brooklyn, New York (defendant's exhibit M in support of motion).
By a letter dated January 10, 2017, purportedly sent by first class mail, plaintiff's counsel responded,
"MSB Physical has extended their schedule till the end of February 2017, and will be unavailable to appear for the requested EUO currently scheduled for January 23, 2017. Please take further notice that it is very common amongst medical providers to have their schedules fully booked for about the same period of 2-4 months depending on the circumstances, as well to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO"
(defendant's exhibit N in support of motion). Plaintiff's counsel again indicated that the EUO was scheduled on the same date as the EUO of another provider which plaintiff's counsel represented (id. ). Plaintiff's counsel requested an EUO be scheduled in March (id. ). Lastly, plaintiff's counsel indicated that it had suggested an amount of $1,500 per claimant for reimbursement (id. ).
By a letter dated January 17, 2017 addressed to plaintiff's counsel, defendant's counsel responded, in relevant part,
"Please be advised that a representative from this office will be present to place a default statement on the record concerning your client's non-appearance at the EUO on January 23, 2017. Your correspondence further states that your client now needs an additional two to four months to appear and be ready for the examination under oath.
As such, this office will document the default of your client's appearance at the EUO on January 23, 2017. Thereafter, this office will send notification noticing your client for a third and final EUO to take place on March 21, 2017. You should already be aware that your client failed to appear and/or asked to adjourn an EUO scheduled for November 21, 2016. Thereafter, your client was noticed two months later for the EUO to take place on January 23, 2017. As such, in good faith, Nationwide will afford your client one final opportunity to appear for an EUO for March 21, 2017.
Additionally, your correspondence asks for reimbursement in the amount of $1,500 for appearing at an examination under oath.... If your client wants more than $1,500.00 for its appearance at the EUO, your client will have to substantiate same by submitting proof of actual loss of earnings in the amount greater than $1,500.00"
(defendant's exhibit O in support of motion).
According to defendant's counsel, Christopher Volpe, plaintiff failed to appear at the EUO on January 23, 2017, and counsel placed a statement on the record accordingly at 1:35 p.m. (see defendant's exhibit P in support of motion, aff of Christopher Volpe ¶ 4 and tr. at 5-6).
EUO of plaintiff on March 21, 2017
By a letter dated January 25, 2017, purportedly sent by first class mail to plaintiff's counsel, defendant's counsel scheduled an EUO of plaintiff on March 21, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant's exhibit Q in support of motion, scheduling letter).
By a letter dated March 16, 2017, purportedly sent by fax, plaintiff's counsel responded,
"Please accept this letter as a good faith effort on the part of MSB Physical to comply with all the policy requirements of Nationwide Affinity Insurance Company of America and Titan Indemnity Company ("Nationwide"). As mentioned before, our client is prepared to meet its obligations to cooperate in the investigation of all claims, and is ready to proceed with a mutually convenient and properly scheduled EUO with the basis for this request provided....
However, once again Nationwide has failed to provide our client with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim, while our client has an absolute right to request for the basis of this EUO request, and Nationwide has a corresponding basis to provide such an explanation....
As for the scheduled EUO, please be advised that MSB Physical has extended their schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 21, 2017. There is nothing wrong or illegal about that, but common medical practice for medical providers to have their schedules fully booked for about the same period 2-4 months depending on the circumstances, as well as to clear or extend them accordingly, which is usually the main reason of their unavailability to appear for a potential EUO.
Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person who is being examined, we preserve our client's rights. Please let our office know which other dates in May 2017 Nationwide is available to conduct the EUO of MSB Physical so that we may arrange for a mutually convenient date, time and location . Pursuant to 11 NYCRR 65-3.2 and 11 NYCRR 65-3.5(e) , the refusal to adjourn an EUO is a direct violation of the No-Fault regulations"
(defendant's exhibit R in support of motion).
According to defendant's counsel, Caitriona McCarthy, plaintiff failed to appear at the EUO on March 21, 2017, and counsel placed a statement on the record accordingly at 12:01 p.m. (see defendant's exhibit S in support of motion, aff of Caitriona McCarthy ¶ 4 and tr. at 6-7).
EUO of plaintiff on May 19, 2017
By a letter dated March 23, 2017, purportedly sent by first class mail to plaintiff's counsel, defendant's counsel scheduled an EUO of plaintiff on May 19, 2017 (see defendant's exhibit T). The letter further stated, in pertinent part,
"Your client has now missed its March 21, 2017 EUO date. You had asked this office previously to notice the examination under oath two months in advance due to the fact that your client's calendar was booked in January. As such, Nationwide, in good faith, noticed the EUO two months from January to March 21, 2017 to afford your client every opportunity to clear its calendar and appear for its noticed examination under oath.
Nevertheless, once again, on the eve of the examination under oath, four days before said examination under oath, you are contacting this office and stating your client cannot appear due to its busy schedule.
You are stating in this correspondence that Nationwide has not provided your client with its good reasons and objective basis for noticing your client for an examination under oath. Please be advised that your client has been noticed for an examination under oath for the following reasons, which included but are not limited to:
1. The listed owner of MSB Physical Therapy, Maria Sheila Buslon, P.T., lives and works in Florida. This raises questions as to the true ownership and control of the New York P.C.;
2. The treating physical therapist, Ankit Baldevbhai Patel, is performing services as an employee of MSB Physical Therapy, P.C. and PFJ Medical P.C. on the same dates;
3. There is no Workers’ Compensation policy found for your client's entity;
4. There is no phone number found on any of the bills or letterhead for your client's company; and
5. Clinic inspections into your client's facility have been refused.
The aforementioned are some of the reasons why Nationwide has noticed your client for an examination under oath. Nationwide is trying to determine whether or not your client is properly structured under the Business Corporation Laws of the State of New York and eligible to receive New York State No-Fault Benefits.
* * *
Your client has failed to appear for three examinations under oath with respect to the above claims. Nationwide will notice the examination under oath of your client for a day in May, 2017. The May examination under oath will be the final opportunity for your client to appear for an examination under oath with regard to the claims at issue. The date of that examination under oath will be May 19, 2017 ..."
(defendant's exhibit T in support of motion; see also defendant's exhibit Y in support of motion, aff of Linda Arnold ¶ 4).
By a letter dated March 29, 2017, purportedly sent by first class mail to plaintiff's counsel, defendant's counsel scheduled an EUO of plaintiff on May 19, 2017 at 11:00 a.m. at American Stenographic Court Reporting in Brooklyn, New York regarding 14 claimants, including Bright (see defendant's exhibit U in support of motion, scheduling letter).
According to defendant's counsel, Michael Weaver, plaintiff failed to appear at the EUO on May 19, 2017, and counsel placed a statement on the record accordingly at 12:10 p.m. (see defendant's exhibit V in support of motion, aff of Michael Weaver ¶ 4 and tr. at 6-7).
Further Correspondence between the parties’ counsel
By a letter dated June 23, 2017, purportedly sent by first class mail, plaintiff's counsel wrote,
"This correspondence is in reply to your letter dated June 1, 2017 pertaining our client's outstanding EUO, which is still required to be submitted by our client to Nationwide Affinity Insurance Company of America and Titan Indemnity Company ("Nationwide").
Please accept this letter as another good faith effort on the part of MSB Physical to comply with all policy requirements of Nationwide....
However, upon numerous requests, up to date our client has not been provided with all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. Instead, you repeatedly list the same irrelevant and misleading reasons (based upon mere speculation and suspicion as opposed to a good faith substantive basis), which we have already objected to in our previous correspondence regarding this matter dated May 18, 2017.
At this point, while Nationwide's reasons for the EUO being objected to before are irrelevant under the circumstances, we have no other choice, but to reiterate our previous request to provide our client will all good cause and objective reasons for determination that an EUO of MSB Physical is necessary to verify and establish proof of claim. As you know, our client has an absolute right to request that Nationwide explains the basis for this EUO request, and Nationwide has a corresponding obligation to provide such explanation.
Once provided with same, once an agreement is reach as for a mutually convenient and properly scheduled EUO, and once the issue of our client's reimbursement is negotiated, our client is ready to proceed"
(defendant's exhibit W in support of motion).
Defendant did not submit a copy of the purported letter from plaintiff's counsel dated May 18, 2017 or the purported letter from defendant's counsel dated June 1, 2017.
By a letter dated June 29, 2017, defendant's counsel responded to plaintiff's counsel dated June 23, 2017, stating, in relevant part, "Your client has now failed to attend its examination under oath on four separate occasions with respect to the claims at issue" (defendant's exhibit X in support of motion). Defendant's counsel reiterated the five reasons for plaintiff's EUO from its prior letter dated March 23, 2017 (id. ).
Denial of Claim Forms
On June 8, 2017, defendant allegedly issued denials of all eight bills at issue in this action, stating, in relevant part:
"MSBP Physical Therapy PC has failed to respond to multiple requests for additional verification and has refused to provide pertinent information that will assist Nationwide in determining the amounts due and payable, pursuant to section 65-1.1(d). Additionally, this failure to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017, duly requested, is a violation of the policy[’]s contractual duties and a violation of proof of claim conditions that precede coverage ..., and as a result, all no fault billing for services rendered under this policy are being denied"
(see defendant's exhibits E-H in support of motion, NF-10 forms Box 33).
The instant action
On November 2, 2017, plaintiff commenced this action asserting eight causes of action to recover assigned first-party no-fault benefits for the eight bills, with interest, plus a ninth cause of action attorneys’ fees (see defendant's exhibit A in support of motion, summons and complaint). On December 7, 2017, defendant allegedly answered the complaint (see defendant's exhibit B in support of motion, answer and affidavit of service).
Plaintiff also commenced a separate action against defendant to recover assigned first-party no-fault benefits concerning eight bills for dates of service during the period of November 8, 2016 through January 5, 2017, MSB Physical Therapy P.C. a/a/o Bright, Sayquan U v Nationwide Ins. , Civ Ct, Kings County, Index No. CV-739338-17/KI.
DISCUSSION
"On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action"
( Xiang Fu He v Troon Mgt., Inc. , 34 NY3d 167, 175 [2019] [internal citations and quotation marks omitted]).
I. Defendant's Motion for Summary Judgment (Motion Seq. No. 001)
Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff failed to appear for duly scheduled EUOs on four separate occasions, i.e., on November 26, 2016, January 23, 2017, March 21, 2017, and May 29, 2017 (affirmation of defendant's counsel ¶¶ 18, 23-70).
"[A]n appearance at an EUO is a condition precedent to the insurer's liability on the policy" ( GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. , 30 Misc 3d 137 [A], 2011 NY Slip Op 50194 [U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011]).
"To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims"
( Oleg's Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. , 63 Misc 3d 152[A], 2019 NY Slip Op 50760 [U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal citations omitted]).
1. Mailing of the EUO scheduling letters
Generally, "proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 114 AD3d 33, 46 [2d Dept 2013], affd 25 NY3d 498 [2015] [internal quotation marks and citations omitted]). A party can establish proof of mailing "through evidence of actual mailing (e.g., an affidavit of mailing or service) or—as relevant here—by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature" ( CIT Bank N.A. v Schiffman , 36 NY3d 550, 556 [2021] ; New York & Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547, 547 [2d Dept 2006], citing Residential Holding Corp. v Scottsdale Ins. Co. , 286 AD2d 679, 680 [2d Dept 2001] ).
"Actual mailing may be established by a proper certificate of mailing or by an affidavit of one with personal knowledge" ( J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co. , 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [internal citation, emendations and quotation marks omitted]). For proof by office practice, "the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed" ( Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d 693, 694 [2d Dept 2016], citing Nassau Ins. Co. v Murray , 46 NY2d 828, 830 [1978] ).
Here, to establish proof of mailing of the EUO scheduling notices, defendant submitted an affidavit from Allan S. Hollander, a former partner with the firm of Bruno, Gerbino & Soriano LLP (see defendant's exhibit Z in support of motion, aff of Allan S. Hollander). According to Hollander, tracking confirmations from the United States Postal Service established delivery by certified mail of the EUO scheduling notices dated November 28, 2016, January 25, 2017, and March 29, 2017 (Hollander aff ¶¶ 9, 13,17, 24). However, as plaintiff's counsel points out, the record does not contain any copies of such tracking confirmations. Thus, defendant failed to prove mailing by proof of actual mailing via certified mail.
Neither did Hollander's affidavit establish proof of mailing by a standard office practice or procedure. Hollander stated,
"At the time of the subject correspondence, including the EUO scheduling letters and responses to Plaintiff's correspondence, it was the ordinary course of business at Bruno Gerbino & Soriano to mail such correspondences, via the United States Postal Service by Certified Mail, Return Receipt Requested, and 1st class mail on the same date that they are created and dated and to the address and facsimile numbers listed thereon.
Specifically, after it was created, the EUO request letters were placed in a United States Postal Service bin, located on the third (3rd) floor of the law office of Bruno, Gerbino & Soriano, and the envelope with the proper Certified Mail, Return Receipt Requested material annexed thereto.
Thereafter, a different individual would affix the proper postage to the envelope to the envelope containing the EUO request letter. This parcel of mail, as well as other mail contained in the above-referenced bin, were taken to the mail room located in the lower lobby of Bruno Gerbino & Soraino's [sic] building.... A member of the United States Postal Service would then take the mail to the U.S. Post Office located in Melville, New York. The empty mail bin would be returned to Bruno Gerbino & Soriano the following business day"
(Hollander aff ¶¶ 24-26).
Although Hollander maintained that the EUO scheduling letters were mailed on the same date that they were created and dated, nothing in office procedures described supported that assertion. Hollander described the procedures, but did not state when they occurred, except to say that the empty mail bin was returned the following business day. Hollander also maintained that the envelopes containing the EUO scheduling letters were addressed to the addresses listed on the scheduling letters, but he did not state that the letters were mailed in windowed envelopes. In the absence of any recitation of as to how the names and addresses on the EUO scheduling letters were checked for accuracy on the unwindowed envelopes, this court agrees with plaintiff's counsel that, on this record, defendant did not establish that the office practice and procedure followed was designed to ensure proper mailing ( Orthotech Express Corp. v MVAIC , 37 Misc 3d 128[A], 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] ["in any event, defendant acknowledged receipt of the claim"]).
Notwithstanding the above, defendant established proof of mailing of the EUO scheduling letters based on the letters in response from plaintiff's counsel, which acknowledged receipt of the EUO scheduling letters (see Socrates Med. Health, P.C. v Motor Vehicle Acc. Indemnification Corp. , 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U], *1 [App Term, 1st Dept 2010] ["in any event, defendant acknowledged receipt of the claim"]). Thus, plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed.
2. Plaintiff's failure to appear
Although plaintiff did not appear at the EUO scheduled on November 21, 2016, this does not constitute a failure to appear because Hollander's statement on the record on November 21, 2016 appears to suggest that the parties mutually agreed to reschedule the EUO to a date in January 2017 ( Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home , 47 Misc 3d 145 [A], 2015 NY Slip Op 50701 [U][App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Defendant established that plaintiff failed to appear for EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, by submitting certified transcripts from the EUOs scheduled and held on those days. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO and that the EUO transcripts must be signed or notarized by defendant's SIU investigator (see affirmation of plaintiff's counsel in support of cross motion and in opposition to motion [Rybak affirmation] ¶¶ 146, 163, 175, 198, 205, 208, 227), the transcripts memorializing the missed appearances, which were certified as true and accurate by stenographers, are sufficient ( Active Chiropractic, P.C. v Praetorian Ins. Co. , 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014]; see also Atlantic Radiology Imaging, P.C. v Metro. Prop. & Cas. Ins. Co. , 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant submitted affidavits from the attorneys who were physically present at the court reporting location in Brooklyn, New York on the dates and scheduled times of the EUOs ( NL Quality Med., P.C. v GEICO Ins. Co. , 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. , 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
In opposition to plaintiff's cross motion, defendant also argues that, in another action involving the parties for different dates of service from September 9, 2016 through November 3, 2016, another judge of this court determined that plaintiff failed to appeared at EUOs (see defendant's exhibit A in opposition to plaintiff's cross motion, MSB Physical Therapy, P.C. a/a/o Sayquan U. Bright v Nationwide Ins. , Civ Ct, Kings County, May 8, 2019, Walker-Diallo, J., index No. CV-729770-17/KI).
In light of this court's determination that defendant's submissions in its moving papers established plaintiff's failures to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, this court need not reach defendant's arguments of res judicata and collateral estoppel, which were essentially new arguments raised for the first time in reply in support of summary judgment dismissing this action.
This court notes that the decision in the other action, which ruled that plaintiff had failed to appear at EUOs, appears to concern only the EUOs on November 21, 2016 and January 23, 2017 (see id. , at 7-8). The decision did not discuss any proof with respect to the other EUOs scheduled on March 21, 2017 or May 19, 2017.
In opposition, plaintiff argues that defendant failed to establish that it had objective reasons for requesting plaintiff's EUO (see Rybak affirmation ¶¶ 154, 160-162). However, the Appellate Term, Second Department has repeatedly ruled, "contrary to plaintiff's contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment" ( 21st Century Pharmacy, Inc. v Integon Natl. Ins. Co. , 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Interboro Ins. Co. v Clennon , 113 AD3d 596, 597 [2d Dept 2014] ; see also Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. , 65 Misc 3d 138[A], 2019 NY Slip Op 51684[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Contrary to plaintiff's argument (see Rybak affirmation ¶¶ 152, 155), "there is no requirement to establish willfulness" ( Goldstar Equip., Inc. v Mercury Cas. Co. , 59 Misc 3d 138[A], 2018 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). "The doctrine of willfulness ... applies in the context of liability policies, and has no application in the no-fault context" ( Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC , 82 AD3d 559, 561 [1st Dept 2011] ).
Plaintiff's reliance upon Meridian Psychological Services, P.C. v Allstate Insurance Company (51 Misc 3d 128[A], 2016 NY Slip Op 50375[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) is misplaced. There, the attorney testified at a nonjury trial that, "for the second EUO, she checked at 11:30 a.m. to see whether the assignor had appeared and continued to check for another 15 minutes, but plaintiff's assignor never appeared. However, the letter scheduling the second EUO scheduled the EUO for 11:00, not 11:30" (id. ). Here, unlike Meridian Psychological Services, P.C. , the certified EUO transcripts reflect that defendant's counsel stated on the record that EUO were to begin at 11:00 a.m. (see defendant's exhibits P, S, and V in support of motion), which was the time reflected on the EUO scheduling letters. Thus, no reasonable inference could be drawn that plaintiff had appeared at the EUOs and left before defendant's counsel had checked for plaintiff's appearance. Additionally, for the EUO on January 23, 2017, counsel expressly stated that he had been present since 11:00 a.m. (see defendant's exhibit P, tr at 7). Neither does plaintiff submit an affidavit from anyone claiming that plaintiff had appeared for any of the EUOs.
Contrary to plaintiff's argument, the EUO scheduling letters complied with 11 NYCRR 65-3.5 (e). They identically stated, in relevant part, "Nationwide will reimburse you for the reasonable cost of transportation and any loss of earnings of earnings in order to comply with this request, upon submission of receipts and proper documentation" (see defendant's exhibits M, Q, and U in support of motion).
To the extent that plaintiff argues that the EUO scheduling letters were not in "proper form" because the defendant did not designate a location and time was not "mutually convenient" for plaintiff (see Rybak affirmation ¶ 159), this argument is unavailing. The no-fault regulations do not require an insurer to schedule EUOs according to plaintiff's convenience. Rather, they provide, "All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant" ( 11 NYCRR 65-3.5 [e]). On the record presented, plaintiff fails to raise a triable issue of fact as to whether the EUO were scheduled at reasonably convenient times.
The regulations do not place a limit on the number of times an applicant for no-fault benefits can request to reschedule an EUO. Courts have ruled that an EUO that is mutually rescheduled prior to the appointed time would not be deemed to constitute a failure to appear ( Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home , 47 Misc 3d 145 [A], 2015 NY Slip Op 50701[U] [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Psychological Servs., P.C. v Mercury Cas. Co. , 49 Misc 3d 143[A], 2015 NY Slip Op 51644[U] [App Term, 1st Dept 2015] ).
However, one cannot assume that an EUO is mutually rescheduled merely because a request to reschedule an EUO was made ( Alas Lifespan Wellness, PT, P.C. v Citywide Auto Leasing, Inc. , 64 Misc 3d 131[A], 2019 NY Slip Op 51040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled]).
If plaintiff requested to reschedule an EUO and received no response, then the insurer is not entitled to summary judgment dismissing the complaint as a matter of law ( Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. , 64 Misc 3d 130[A], 2019 NY Slip Op 51038[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [plaintiff's owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant's investigator, but that plaintiff was not contacted by defendant in response to the messages]).
If an insurer refuses a timely and proper request to reschedule, then an issue of fact arises as to whether the EUOs were scheduled to be held at a time or place which was "reasonably convenient" to plaintiff ( Parisien v Metlife Auto & Home , 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). One lower court has ruled that an insurer may not unreasonably refuse to adjourn the exams "where a good-faith request is made to re-schedule and the adjournment sought is not excessive" ( Diagnostic Radiographic Imaging, P.C. v GEICO , 42 Misc 3d 1205[A], 2013 NY Slip Op 52247[U] [Civ Ct, Kings County 2013] ; see also A.B. Med. Servs. PLLC v USAA Gen. Indem. Co. , 9 Misc 3d 19, 22, 2005 NY Slip Op 25297 [App Term, 2d Dept 2005] ).
Here, defendant's submissions indicate that the requests of plaintiff's counsel to reschedule were made days before the EUOs were to occur, even though defendant's counsel had mailed the scheduling letters well in advance before the scheduled EUOs. Assuming, for the sake of argument, that the requests of plaintiff's counsel were timely, plaintiff did not raise a triable issue of fact as to whether these requests to reschedule were proper, or that they were made in good faith. Plaintiff requested lengthy adjournments of the EUO for two to three months, ostensibly for the reason that plaintiff is a doctor. If that reason, without more, constituted a good faith basis for an adjournment, then plaintiff could postpone an EUO indefinitely.
As discussed above, when an insurer schedules an EUO, the insurer must inform the applicant seeking no-fault benefits that "the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request" ( 11 NYCRR 65-3.5 [e]), which occurred here. Thus, any concern for the loss of earnings would not be a valid reason to reschedule an EUO. Additionally, when requesting to reschedule, plaintiff offered no specific dates which would be convenient for plaintiff. On this motion, plaintiff did not come forward within any additional information to support the contention that such lengthy adjournments would be reasonable under the circumstances. Thus, plaintiff fails to raise a triable issue of fact as to whether its requests for adjournments for two to three months were either proper, or made in good faith.
To the extent plaintiff contends that defendant "failed to provide[ ] that ... Assignor [sic] is reasonably paid for his or her time and traveling expenses" and "failed to agree to reimburse the provider" (Rybak affirmation ¶¶159, 166), this argument is similarly unavailing. Plaintiff demanded a flat, up-front reimbursement in the amount of "$1,500 per claimant" at the commencement of the EUO (see defendant's exhibit J in support of motion, letter from plaintiff's counsel dated November 17, 2016). However, plaintiff's counsel cites no authority for the proposition that the insurer must reimburse the lost earnings before the EUO takes place, and that the lack of reimbursement prior to the EUO would excuse the person to be examined from having to appear. As a practical matter, the duration of an EUO may be an important factor in calculating the reimbursement of lost earnings. Additionally, defendant indicated that it wished to inquire about defendant's ownership and operations, which would be information common to all the claimants (defendant's exhibit T in support of motion). In this case, the request of plaintiff's counsel for a flat, up-front fee of $1,500 per claimant was improper ( Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. , 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ["plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations"]).
Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff failed to appear for duly scheduled EUOs.
3. Timely Denial of the Claims
"[A]n insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant's proof of claim is received. An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim"
( Infinity Health Prods., Ltd. v Eveready Ins. Co. , 67 AD3d 862, 864 [2d Dept 2009] [internal citations omitted]).
a. Receipt of Bills
According to Kathleen McAndrews, a Claims Specialist employed by defendant Nationwide Mutual Insurance Company (Nationwide Mutual) at the claims office in Liverpool, New York, the policy upon which these claims have been presented is a policy underwritten by Nationwide Affinity Insurance Company of America, which is a company of Nationwide Mutual (defendant's exhibit D in support of motion, McAndrews aff ¶¶ 1-3). McAndrews stated that all New York No-Fault related mail "regardless of where it is addressed is forwarded to P.O. Box 26005, Daphne, AL 36526-1126 for processing" (id. ¶ 10). It is undisputed that the claim forms were sent to "Nationwide Insurance Company" at "P.O. Box 26005, Daphne, AL 36526" (see defendant's exhibits E-H in support of motion, NF-3 forms).
According to Douglas Taylor, a Vice President employed by Auto Injury Solutions, Inc. (AIS), AIS is defendant's authorized agent "for receiving bills and/or correspondence at Post Office Box 26005, Daphne, AL 36526" (see defendant's exhibits E-H in support of motion, Taylor long affs ¶ 2). He stated,
For each bill, defendant submitted an affidavit from Taylor that is 14 paragraphs long (see defendant's exhibits E-H [hereinafter, Taylor long aff]). These affidavits are identical, except as to paragraph 12.
Defendant also submitted another affidavit from Taylor that is nine paragraphs long and is identical for each bill (see defendant's exhibits E-H [hereinafter, Taylor short aff]).
"Upon receipt of a bill ... via regular mail at Post Office Box 26005, Daphne, AL 36526, or facsimile, the following process is utilized: Once the mail is delivered, the inbound mailroom team sorts all of the mail. Each envelope is opened by an electronic machine and then distributed to the batching team. The batchers take the contents of each envelope out, assign an identifying ID number to the contents of each envelope, and then the contents are given to the scanners to create an electronic image. The scanner machine affixes the receive date that the document was received onto each page of the document, as it is imaged. The hard copies of the records are filed and maintained in the file room for Thirty (30) days. The documents are imaged to Nationwide Affinity Insurance Company of America on the same day that the scanner machines affixes the receive date. The scanner machine affixes the received date to the document the same date the document is received by AIS"
(Taylor long affs ¶ 4). Defendant also submitted the business records of AIS (see defendant's exhibits E-H in support of motion), which Taylor established as admissible business records under CPLR 4518 (see Taylor long affs ¶¶ 12-13). Based on the date stamps that appeared at the top of bills submitted to defendant, and based on the business records, defendant established that it received the bills on the following dates shown in Table 1 below:
| Bill | Dates of Service | Billed Amount | Date Received | Defendant's Exhibit |
| 1 | 1/13/2017 | $184.43 | 1/20/17 | E |
| 2 | 1/18/2017 | $184.43 | 2/6/17 | F |
| 3 | 1/19/2017-1/26/2017 | $184.92 | 2/6/17 | G |
| 4 | 1/19/2017-1/26/2017 | $219.87 | 2/6/17 | G |
| 5 | 1/19/2017-1/26/2017 | $148.50 | 2/6/17 | G |
| 6 | 2/3/2017-2/15/2017 | $247.50 | 2/25/17 | H |
| 7 | 2/3/2017-2/15/2017 | $366.45 | 2/25/17 | H |
| 8 | 2/3/2017-2/15/2017 | $308.20 | 2/25/17 | H |
Table 1. Date of Receipt of Bills
b. Proof of Mailing of Denials
To establish proof of timely mailing of the denials, defendant again relied upon the affidavits of McAndrews and Taylor, and the business records of AIS.
According to McAndrews, NF-10 forms are prepared by Claims Specialists, who then electronically notify AIS that the denials are ready for printing (McAndrews aff ¶¶ 17-18). The NF-10 forms use the address(es) contained on the billing documents provided by the medical provider and/or the medical provider's attorney (id. ¶ 15).
According to Taylor, it is AIS's practice to mail all Explanations of Review (EORs) and NF-10 forms to the provider in duplicate on the same day that they are generated (see defendant's exhibits E-H, Taylor long affs ¶ 6). The date that the EOR and NF-10 form are generated is noted in the lower left hand corner of the document (id. ). Once an EOR and an NF-10 form are printed for a particular claim, the documents are then placed into a mail machine by AIS mailroom personnel (Taylor long affs ¶ 13). A notation in the history of the record verifies that the documents have been printed, which is entered automatically in the bill history when the print job is run and cannot be altered (id. ). The mail machine reads a unique bar code number generated by the system to separate the documents, places the printed documents into a clear windowed envelope, and then prints first class postage on the envelope (id. ). The letters to be mailed are maintained in a secure area in the AIS mailroom until they are picked up by the United States Postal Service, which picks up the mail each business day (id. ). Any document processed by the AIS mailroom after 2:00 PM is mailed the next business day (Taylor long affs ¶ 14).
McAndrews's and Taylor's affidavits and AIS business records establish proof of mailing of the denials in accordance with a standard office practice or procedure ( St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. , 50 AD3d 1123, 1124 [2d Dept 2008] ; Royal Med. Supply, Inc. v Nationwide Gen. Ins. Co. , 57 Misc 3d 132[A], 2017 NY Slip Op 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), either on the dates listed in Table 2 below, or on the next business day:
| Bill | Dates of Service | Billed Amount | Date of Denial | Defendant's Exhibit |
| 1 | 1/13/2017 | $184.43 | 6/8/17 | E |
| 2 | 1/18/2017 | $184.43 | 6/8/17 | F |
| 3 | 1/19/2017-1/26/2017 | $184.92 | 6/8/17 | G |
| 4 | 1/19/2017-1/26/2017 | $219.87 | 6/8/17 | G |
| 5 | 1/19/2017-1/26/2017 | $148.50 | 6/8/17 | G |
| 6 | 2/3/2017-2/15/2017 | $247.50 | 6/8/17 | H |
| 7 | 2/3/2017-2/15/2017 | $366.45 | 6/8/17 | H |
| 8 | 2/3/2017-2/15/2017 | $308.20 | 6/8/17 | H |
Table 2. Dates when denials were issued
"[T]o rebut the presumption [of mailing], there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient"
( CIT Bank N.A , 36 NY3d at 557 ).
Contrary to plaintiff's argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because McAndrews stated that she was the Claims Specialist who issued the denials, and McAndrews also had personal knowledge of the claims procedures and mailing procedures (McAndrews aff ¶¶ 5-7, 22-23). Although plaintiff's counsel contends that the affidavit of Kelly Weaver, Claims Representative, was insufficient (see Rybak affirmation ¶¶ 317-334), defendant did not submit an affidavit from Kelly Weaver. The affidavit of Linda Arnold was not offered to establish proof of mailing, but rather discussed defendant's reasons for requesting the EUO of plaintiff (see defendant's exhibit Y in support of motion).
Although plaintiff's counsel contends that the bills were mailed to Nationwide in "Harrisburg, PA" (Rybak affirmation ¶ 374), defendant's address on the NF-3 forms was in "Daphne, AL" (see defendant's exhibits E-H in support).
As plaintiff points out, McAndrews indicated that she had reviewed electronic claim file (McAndrews aff ¶ 23), but defendant did not submit copies or printouts of the electronic claim file. "Evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness's testimony as to the contents of the records is inadmissible" ( Bank of New York Mellon v Gordon , 171 AD3d 197, 205-06 [2d Dept 2019] [internal citations and internal quotation marks omitted]). Thus, any information that McAndrews could only have obtained from the electronic log would not be admissible. However, in this case, McAndrews had personally issued the denials, and had submitted copies of the denials themselves, which McAndrews established as defendant's business records (see McAndrews aff ¶ 38). Plaintiff does not point to any information in McAndrews's affidavit relevant to proof of mailing that could only have been derived from a review of the electronic claims file.
Plaintiff's reliance upon Acupuncture Prima Care, P.C. v State Farm Mutual Auto Ins. Co. (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007] ) and Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (19 Misc 3d 1139[A] [Dist Ct, Nassau County 2008] ) is misplaced. The same court which decided Carle Place Chiropractic and Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent's Hospital of Richmond :
"It was the opinion of this court that, when stripped of all of its excess verbiage, the insurance companies’ mailing procedures were simply to place a denial form in an envelope and to have someone subsequently mail same. Carle Place Chiropractic v. New York Central Mutual Fire Insurance Company , 19 Misc 3d 1139(A), Slip Copy, 2008 WL 2228633 (Dist. Ct. Nassau Co. 2008) ; Acupuncture Prima Care, P.C. v. State Farm Mutual Auto Ins. Co. , 17 Misc 3d 1135 (A), 851 NYS2d 67 (Dist. Ct. Nassau Co. 2007) ; New York Hospital Medical Center of Queens v. Liberty Mutual Insurance Company , 16 Misc 3d 1104 (A), 841 NYS2d 827 (Dist. Ct. Nassau Co. 2007) Recently, however, the Appellate Division, Second Department has found just such a practice and procedure to adequately describe "a standard office practice[ ] or procedure[ ] designed to ensure that items were properly addressed and mailed (citations omitted)." St. Vincent's Hospital of Richmond v. Government Employees Insurance Company , 50 AD3d 1123, 857 NYS2d 211 (2nd Dept. 2008). This court is now constrained to follow this appellate authority"
( Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co. , 20 Misc 3d 1130[A], 2008 NY Slip Op 51687[U] [Dist Ct, Nassau County 2008] ).
Contrary to plaintiff's assertion, boxes #23 through #33 on each of the denials were not blank, and so plaintiff fails to raise a triable issue of fact as to whether the denials were facially defective. Plaintiff also asserts that defendant "fails to use the proper denial of claim form (statutory version of the NF-10 form) (Rybak affirmation ¶ 186). To the extent that plaintiff is arguing that the denial of claim forms were not issued using the most current version of the NF-10 form, defendant's use of "outdated" denial of claim forms is not a fatal defect, "as they contain substantially the same, pertinent information as prescribed forms" ( Sheepshead Bay Med. Supply, Inc. v Erie Ins. Co. of NY, 71 Misc 3d 140[A], 2021 NY Slip Op 50491[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Contrary to plaintiff's argument, the denials adequately apprised plaintiff that the bills were denied due to plaintiff's failure "to submit to the examination under oath scheduled for 11/21/2016, 01/23/2017, 03/21/2017 and 05/19/2017" (see defendant's exhibits E-H, NF-10 forms). Notably, "a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs" ( JYW Med., P.C. v IDS Prop. Ins. Co. , 58 Misc 3d 134[A], 2017 NY Slip Op 51800[U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
c. Timeliness of Denials
Because all the denials were issued more than 30 days after the bills were received, the issue presented is whether the 30-day period for defendant to pay or otherwise deny plaintiff's claims was properly tolled for each bill. Plaintiff generally asserts that defendant failed to toll the payment period by timely requesting an EUO (Rybak affirmation ¶ 169).
If the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of receipt of the proof of claim ( 11 NYCRR 65—3.5 [b]; see New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. , 117 AD3d 1012, 1014 [2d Dept 2014] ).
"Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30—day period, must follow up with a second request for verification (see 11 NYCRR 65—3.6 [b])"
( Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co. , 120 AD3d 561, 563 [2d Dept 2014] ).Defendant must demonstrate "that its initial and follow-up requests for verification were timely mailed" ( Urban Radiology, P.C. v Clarendon Natl. Ins. Co. , 31 Misc 3d 132 [A], 2011 NY Slip Op 50601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). "[A] follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination" ( ARCO Med. NY, P.C. v Lancer Ins. Co. , 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
As plaintiff correctly points out, delay letters which inform plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath, are insufficient to toll the 30-day statutory time period ( Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. , 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Because defendant requested plaintiff's EUO prior to its receipt of the bills, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 did not apply to those pre-claim EUO requests ( Mapfre Ins. Co. of New York v Manoo , 140 AD3d 468, 469 [1st Dept 2016] ; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006] ). However, once the bills are received, defendant is required to comply with the follow-up provisions of 11 NYCRR 65.36 (b) ( Mapfre Ins. Co. of NY, 140 AD3d at 470 ).
i. Tolling with respect to Bill #1
For bill #1, an EUO was scheduled on January 23, 2017, after receipt of bill #1 on January 20, 2017, and plaintiff failed to appear. A follow-up EUO scheduling letter was timely sent on January 25, 2017, within 10 days of the missed EUO, for another EUO to take place on March 21, 2017, where plaintiff did not appear as well. Another follow-up scheduling letter was timely sent on March 23, 2017, within 10 days of the missed EUO, for an EUO to take place on May 19, 2107. Thus, plaintiff failed to appear at three EUOs scheduled to take place after the receipt of bill #1.
"Where, as here, no other verification request is outstanding, the 30-day period for an insurer to pay or deny a claim based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there was a failure to comply with a condition precedent to coverage"
( Quality Health Supply Corp. v Nationwide Ins. , 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
As defendant did not deny bill #1 until June 8, 2017, which was more than 30 days after plaintiff's second failure to appear, for the EUO scheduled for March 21, 2017, defendant is not entitled to summary judgment dismissing bill #1, because defendant did not demonstrate that it is not precluded from raising its proffered defense as to bill #1 (see id. ).
Therefore, summary judgment dismissing the first cause of action is denied.
ii. Tolling with respect to Bills #2-5
For bills #2-5, a pre-claim EUO scheduling letter was sent on January 25, 2017 before the defendant's receipt of bills #2-5 on February 6, 2017. The only EUO scheduling letter in the record after receipt of bills #2-5 was a follow-up EUO scheduling letter sent on March 23, 2017, more than 30 days after the receipt of bills #2-5.
On the issue of whether pre-claim EUO requests toll the 30-day determination period to pay or otherwise deny a claim, the Appellate Term, Second Department has issued conflicting decisions on that issue.
In Doctor Goldshteyn Chiropractic, P.C. , the Appellate Term rejected the argument that pre-claim EUO scheduling letters did not toll the 30-day period for an insurer to pay or deny a claim. There, the defendant mailed a scheduling letter to plaintiff's assignor on January 4, 2011, and the defendant received the plaintiff's bill on January 21, 2011 ( Doctor Goldshteyn Chiropractic, P.C. , 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] at *1). The Appellate Term ruled, "defendant's time to pay or deny these claims, which defendant received on January 21, 2011, was tolled" (id. ).
In Vitality Chiropractic, P.C. v Kemper Insurance Company (14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), the Appellate Term held, "the tolling provisions of the insurance regulations do not apply" to pre-claim verification requests. There, the defendant had scheduled IMEs of the plaintiff's assignor by letters dated May 22 and 23, 2002, which pre-dated the receipt of the plaintiff's claim on May 30, 2002. The Appellate Term ruled that the defendant's denial of the claim on July 11, 2002 (which was more than 30 days after the receipt of the plaintiff's bill) was untimely ( id. at 96 ).
Vitality Chiropractic, P.C. and Doctor Goldshteyn Chiropractic, P.C. cannot be reconciled. The logic of Vitality Chiropractic, P.C. has straightforward appeal: the toll is based on outstanding verification requests made pursuant to 11 NYCRR 65-3.5 (see 11 NYCRR 65-3.8 [a][1], [b][3]; see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008] ). Given that the Appellate Term, Second Department has held that 11 NYCRR 65-3.5 does not apply to pre-claim requests at all, it logically follows that pre-claim requests cannot toll the 30-day period. Vitality Chiropractic, P.C. relied upon the Appellate Term's prior decision in Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Company , which held that "the detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of the claim form" ( 7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006] ). Citing Stephen Fogel Psychological, P.C. , lower courts therefore concluded that a denial based on a pre-claim IME was proper so long as the insurer mailed the denial within 30 days of its receipt of the claim (see e.g. Lender Med. Supply, Inc. v Hartford Ins. Co., 35 Misc 3d 1226[A], 2012 NY Slip Op 50903[U] [Civ Ct, Kings County 2012] ; Prime Psychological Servs., PC v ELRAC, Inc. , 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009] ; cf. All-Boro Medical Supplies, Inc. v Progressive Northeastern Ins. Co. , 20 Misc 3d 554 [Civ Ct, Kings County 2008] [if defendant insisted upon conducting a pre-claim EUO before deciding whether to pay or deny the claim, it had no choice but to reschedule the EUO to a date within 30 calendar days from the date it received the claim]).
By comparison, Doctor Goldshteyn Chiropractic, P.C. did not explain why it ruled that a pre-claim EUO request tolled the defendant's time to pay or deny the plaintiff's claim. The court cited ARCO Medical NY, P.C. v Lancer Insurance Company (34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which had different facts. In ARCO Medical NY, P.C. , the EUO requests were sent within 15 days after the defendant received the plaintiff's claims (id. at *2). Also, it is not clear that the plaintiff in Doctor Goldshteyn Chiropractic, P.C. had actually argued that pre-claim requests could toll the 30-day period. Rather, the plaintiff apparently argued that there was no toll because an issue of fact arose as to whether the scheduling letters were mailed, which the court rejected ( Doctor Goldshteyn Chiropractic, P.C. , 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] ). No appellate cases have followed Doctor Goldshteyn Chiropractic, P.C.
In deciding which case this court should follow, the Appellate Division, Second Department's decision in Sound Shore Medical Center v New York Central Mutual Fire Insurance Company (106 AD3d 157 [2d Dept 2013] ) is instructive. There, the defendant-insurer received a UB-04 form from the plaintiff-hospital, which prompted the insurer to send two "requests for verification" to the hospital ( id. at 159 ). Thereafter, the insurer received a NF-5 form from the hospital, which prompted the insurer to send another verification request, but the insurer neither denied the claim nor sent another verification request ( id. at 160 ).
The insurer argued that the hospital's claim was premature because the hospital did not respond either to the insurer's initial verification request following receipt of the UB-04 form, or to the verification request following receipt of the NF-5 form. However, the hospital argued that it was entitled to summary judgment in its favor because the UB-04 form was not the functional equivalent of a NF-5 form. Because the insurer did not send a follow-up verification request after sending an initial verification request when it received the NF-5 form, the hospital argued that the insurer's time to pay the claim had not been tolled.
The Appellate Division agreed with the hospital, and it held that the hospital's submission of a UB-04 form was not the functional equivalent of a NF-5 form, which would have triggered the 30-day period for the insurer to pay or deny a claim, or to seek verification of the claim (id. at 162, 163). The Appellate Division also ruled, "a request for verification that precedes a no-fault insurer's receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim" (id. at 164 [emphasis supplied]).
Given all the above, this court therefore follows Vitality Chiropractic, P.C. Although Doctor Goldshteyn Chiropractic, P.C. is a more recent decision, Vitality Chiropractic, P.C. is based on the Appellate Term's rulings in Stephen Fogel Psychological, P.C. , which was affirmed by the Appellate Division, Second Department ( Stephen Fogel Psychological, P.C. , 7 Misc 3d 18 at 21, affd 35 AD3d 72). Additionally, Vitality Chiropractic, P.C. is consistent with the Appellate Division's ruling in Sound Shore Medical Center , that pre-claim verification requests involving a hospital claim did not toll the 30-day period, and is consistent with the Appellate Term, First Department's decision in Okslen Acupuncture, P.C. (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U] ).
Accordingly, the pre-claim EUO scheduling letter was sent on January 25, 2017 did not toll the 30-day period for defendant to pay or otherwise deny bills #2-5, which ended on March 8, 2017. Although the follow-up EUO scheduling letter was sent within 10 days of missed EUO on March 21, 2017, the follow-up EUO scheduling letter was sent on March 23, 2017, more than 30 days after the receipt of bills #2-5 on February 6, 2017. Thus, defendant failed to demonstrate any tolling with respect to bills #2-5 (see Tsatskis v State Farm Fire & Cas. Co. , 36 Misc 3d 129 [A], 2012 NY Slip Op 51268 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).
Therefore, summary judgment dismissing the second, third, fourth, and fifth causes of action is denied.
iii. Tolling with respect to Bills #6-8
For bills #6-8, a pre-claim EUO scheduling letter was sent on January 25, 2017, for an EUO to take place on March 21, 2017, which was within 30 days of the receipt of bills #6-8 on February 25, 2017. A follow-up EUO scheduling letter was sent on March 23, 2017, for an EUO to take place on May 19, 2017.
As discussed above, defendant's pre-claim EUO scheduling letter sent on January 25, 2017 did not toll the 30-day period to pay or otherwise deny bills #6-8.
The only verification request in the record which was sent after bills #6-8 were received was the follow-up EUO scheduling letter sent on March 23, 2017. Because this verification request was sent within 30 days of the receipt of bills #6-8, and was sent within 10 days after the missed EUO on March 21, 2017, the follow-up EUO scheduling letter sent on March 23, 2017 was timely and tolled defendant's time to pay or otherwise deny bills #6-8 through the EUO scheduled on May 19, 2017. Because defendant issued the denial of bills #6-8 on June 8, 2017, which was within 30 days of the missed EUO on May 19, 2017, defendant demonstrated that the denial of bills #6-8 was timely.
In this court's view, Quality Health Supply Corp. v Nationwide Insurance (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] ) does not dictate a different result. Although plaintiff failed to appear at the EUOs on January 23, 2017, March 21, 2017, and May 19, 2017, it is this court's view that defendant's time to pay or otherwise deny bills #6-8 did not run from missed EUO on March 21, 2017, because the January 23, 2017 EUO was scheduled to take place prior to the receipt of bills #6-8.
As discussed above, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to pre-claim EUO requests ( Manoo , 140 AD3d at 469 ; Stephen Fogel Psychological, P.C. , 7 Misc 3d 18, 21, affd 35 AD3d 720 ). Also, as discussed above, pre-claim EUO requests do not toll the 30-day period for an insurer to pay or otherwise deny a claim. Therefore, it would not make sense to consider any pre-claim EUO in determining when the insurer's toll has ended.
To illustrate, suppose the insurer had scheduled two EUOs of plaintiff to take place on January 23, 2017 and March 21, 2017, prior to receipt of the bills on May 19, 2017, and plaintiff had failed to appear at those pre-claim EUOs. Taking Quality Health Supply Corp. literally, the insurer's time to pay or otherwise deny the claims would run from the second missed EUO on March 21, 2017, even though the insurer has yet to receive the bills.
Thus, this court interprets Quality Health Supply Corp. to apply to those EUOs that are scheduled to occur after the insurer's receipt of the bills at issue. In this case, because the only EUOs that were scheduled to occur after the receipt of the bills #6-8 were the EUOs on March 21, 2017 and May 19, 2017, the 30-day period for defendant to pay or otherwise deny bills #6-8 ran from May 19, 2017.
Plaintiff fails to raise a triable issue of fact as to whether the 30-day period was tolled as to bills #6-8.
Therefore, defendant is entitled to summary judgment dismissing the sixth, seventh, and eighth causes of action, based on plaintiff's failure to appear at EUO scheduled on March 21, 2017 and May 19, 2017.
Although defendant is entitled to judgment dismissing three out of the eight causes of action against it, this court exercises its discretion not to grant any costs to defendant with respect that judgment (see CPLR 8103 ). As discussed in the next section of this decision, on the issue of costs and disbursements (which was not addressed by either party), plaintiff is the prevailing party in this action. Because much of the elements of defendant's prima facie burden for the sixth, seven, and eighth causes of action were the same as the elements of the other causes of action on which plaintiff prevailed, this court does not view the sixth, seventh and eighth causes of action being as substantially different for this court to exercise its discretion under CPLR 8103 to award costs to defendant (cf. Gibson v Tsandikos , 23 AD3d 801, 802—03 [3d Dept 2005] ).
II. Plaintiff's Cross Motion (Motion Seq. No. 002)
"A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law"
( 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]). Once plaintiff meets its prima facie burden, the burden shifts to defendant "to show that it has a meritorious defense and that such a defense is not precluded" ( Urban Radiology, P.C. v GEICO Gen. Ins. Co. , 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal citation omitted]).
Here, plaintiff established its prima facie entitlement for summary judgment in its favor against defendant as to bills #1-5, based on the denial of claim forms in defendant's motion papers, which admitted receipt of plaintiff's bills (see Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. , 53 Misc 3d 135[A], 2016 NY Slip Op 51434[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see Oleg Barshay, DC, P.C. v State Farm Ins. Co. , 14 Misc 3d 74, 75 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The denials also establish that the bills were not paid within 30 days after defendant's receipt of those bills. As discussed above, the denials themselves were also untimely, and thus were without merit as a matter of law.
Thus, plaintiff is granted summary judgment in its favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15. Plaintiff is also entitled to prejudgment interest on bills #1 through #5 at the rate of 2% per month from November 2, 2017, the date of the commencement of the action, because plaintiff did not commence a lawsuit within 30 days after those bills became overdue (see 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co. , 61 AD3d 202, 205 [2d Dept 2009] ).
Plaintiff is also granted summary judgment in its favor on the ninth cause of action against defendant, for attorneys’ fees ( 11 NYCRR § 65-4.6 [d]). The award of attorneys’ fees is calculated as 20% of the aggregate amount of bills #1 through #5 ($922.15) plus interest, subject to a maximum of $1,360 (id. ; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. , 12 NY3d 217, 223 [2009] ).
On the issue of costs and disbursements (which was not addressed by either party), plaintiff prevailed in obtaining summary judgment in its favor on five out of the eight causes of action against defendant, and plaintiff is entitled to recover exactly half of the total amount sought against defendant (exclusive of interest and attorneys’ fees). Thus, plaintiff is the prevailing party entitled to recover costs of the action from defendant, in the amount of $20.00, as a notice of trial has not been filed and the amount of the judgment is not more than $6,000 ( CPLR 8101 ; NY City Civ Ct Act § 1901 [b] [1] ). Having been awarded costs, plaintiff is also therefore entitled to recover any disbursements ( CPLR 8301 ; NY City Civ Ct Act § 1908 ).
The branch of plaintiff's motion for summary judgment in its favor on the sixth through eighth causes of action against defendant is denied. As discussed above, defendant demonstrated that it timely denied bills #6-8 based on the failure of plaintiff to appear for duly scheduled EUOs on March 21, 2017 and May 19, 2017.
The branch of plaintiff's motion to compel defendant to comply with discovery demands is denied as academic.
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that defendant's motion for summary judgment dismissing the complaint (Motion Seq. No. 001) is GRANTED IN PART TO THE EXTENT that the sixth, seventh, and eighth causes of action are severed and dismissed, and the remainder of defendant's motion is otherwise denied; and it is further
ORDERED that the branch of plaintiff's cross motion for summary judgment in its favor against defendant (Motion Seq. No. 002) is GRANTED IN PART TO THE EXTENT that summary judgment is granted in plaintiff's favor against defendant on the first, second, third, fourth, and fifth causes of action against defendant, in the sum of $922.15, with prejudgment interest from the date of November 2, 2017; and judgment is granted in plaintiff's favor on the ninth cause of action for attorneys’ fees in the amount of 20% of the sum of $922.15 plus the accrued prejudgment interest, as calculated by the Clerk, subject to a maximum of $1,360, with costs and disbursements to plaintiff upon submission to the Clerk upon an appropriate bill of costs, and the remainder of plaintiff's cross motion is denied; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the prior decision and order dated July 12, 2021 is hereby recalled and vacated.
This constitutes the amended decision and order of the court.