Opinion
CV-702516-19/QU
04-29-2021
NY WELLNESS MEDICAL P.C., as Assignee of Shantay J.R., Plaintiff(s), v. AMERIPRISE INSURANCE COMPANY, Defendant(s).
Plaintiff's Counsel: Law Offices of Gabriel & Shapiro, 3361 Park Avenue, Suite 1000, Wantagh, NY 11793 Defendant's Counsel: Callinan & Smith, LLP, 3361 Park Avenue, Suite 104, Wantagh, NY 11793
Plaintiff's Counsel: Law Offices of Gabriel & Shapiro, 3361 Park Avenue, Suite 1000, Wantagh, NY 11793
Defendant's Counsel: Callinan & Smith, LLP, 3361 Park Avenue, Suite 104, Wantagh, NY 11793
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment seeking dismissal of Plaintiff's complaint:
Papers Numbered
Defendant's Notice of Motion and Affirmation in Support dated October 1, 2019 ("Motion") and file stamped by the court on November 7, 2019.1
Plaintiff's Affirmation in Opposition ("Opposition") dated and electronically filed with the court on October 5, 2020. 2
Defendant's Affirmation in Reply ("Reply") dated and electronically filed with the court on November 16, 2020. 3
II. Background
In a summons and complaint filed on February 7, 2019, Plaintiff sued Defendant insurance company to recover a total of $5,739.44 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Shantay J.R. from October 2017 to April 2018, plus attorneys’ fees and statutory interest. The First cause of action was for recovery of a bill for services provided October 18 to November 2, 2017 ("First Bill ") in the amount of $405.60. The Third cause of action was for recovery of a $333.12 bill for services provided November 3 to 15, 2017 ("Second Bill "). The Fifth cause of action was for recovery of a $130.32 bill for services provided November 17 to 30, 2017 ("Third Bill "). The Seventh cause of action was for recovery of a $80.02 bill for services provided on October 13, 2017 ("Fourth Bill "). The Ninth cause of action was for recovery of a $148.69 bill for services provided on October 11, 2017 ("Fifth Bill "). The Eleventh cause of action was for recovery of a $92.97 bill for services provided on November 15, 2017 ("Sixth Bill "). The Thirteenth cause of action was for recovery of a bill in an unspecified amount for services provided at an unspecified time ("Seventh Bill "). The Fifteenth cause of action was for recovery of a $204.41 bill for services provided on October 11, 2017 ("Eighth Bill "). The Seventeenth cause of action was for recovery of a $204.41 bill for services provided on November 15, 2017 ("Ninth Bill "). The Nineteenth cause of action was for recovery of a $2,597.08 bill for services provided from December 26, 2017 to April 12, 2018 ("Tenth Bill "). The Twenty-First cause of action was for recovery of a $1,542.82 bill for services provided from October 13 to December 28, 2017. In a stipulation dated May 15, 2019, the parties amended such Twenty-First cause of action to recover a $593.76 bill for services provided December 1 to 28, 2017 ("Eleventh Bill ") (see Motion, Soriano Aff., Ex. C). This stipulation effectively reduced the amount Plaintiff sought to recover to $4,790.38. The Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second causes of action sought recovery of attorneys’ fees for each of the separate bills. Unlike the First Bill, Second Bill, Third Bill, Fourth Bill, Fifth Bill, Sixth Bill, Eighth Bill, and Ninth Bill, the Tenth Bill and Eleventh Bill are composed of several smaller bills for dates of service within the range of service dates alleged in the complaint.
Defendant now moved for summary judgment dismissing Plaintiff's complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath ("EUO "), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed Defendant's motion for summary judgment. No cross-motion was filed by Plaintiff. An oral argument by both parties was conducted by this Court on April 8, 2021.
III. Discussion
CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" ( CPLR 3212[b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ; Anghel v Ruskin Moscou Faltischek, P.C. , 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).
Insurers must pay or deny No-Fault benefit claims "within thirty (30) calendar days after receipt of the proof of the claim" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 501 [2015] ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d 556, 563 [2008] ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317 [2007] ; see Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d 274, 278 [1997] ). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 281-86 ). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer's duty to indemnify ( IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d 1005, 1007 [2d Dept 2014] ; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d 755, 756 [2d Dept 2020] ; Interboro Ins. Co. v Clennon , 113 AD3d 596, 597 [2d Dept 2014] ).
Plaintiff's Thirteenth Cause of Action
As noted above, Plaintiff's Thirteenth cause of action did not specify the amount of the bill or the dates of service for which the bill was issued. In its answer, Defendant denied knowledge or information sufficient to form a belief as to all the allegations in Plaintiff's complaint, but asserted as the Third Affirmative Defense that the "complaint fail[ed] to state a proper cause of action as against [the] answering defendant" (Motion, Soriano Aff. Ex. B). Moreover, Plaintiff addressed only ten (10) bills in its Opposition, even though eleven (11) bills were alleged in Plaintiff's complaint. Here, this Court grants Defendant's motion for summary judgment dismissing Plaintiff's Thirteenth cause of action for failure to state a cause of action ( CPLR 3211[a][7] ; 3212).
Plaintiff's First, Seventh and Fifteenth Causes of Action
Plaintiff's First, Seventh and Fifteenth causes of action concerned the First Bill for $405.60, Fourth Bill for $80.02, and Eighth Bill for $204.41. At the outset, the Court notes that Plaintiff alleged in its First cause of action that the amount of its First Bill was $405.60 and that no payment was made by Defendant. Defendant's supporting evidence, however, indicated that the original First Bill was indeed in the amount of $456.36 and that Defendant's adjuster, Kurz, allowed $405.60 as of March 1, 2018, leaving a balance of $50.76 (see Aff. Of Soriano, Ex. X and Y). Because Plaintiff only prayed for $405.60 regarding its First Bill in its compliant, this Court will only address Plaintiff's First Bill in the amount of $405.60, not $456.36. Defendant argued that the foregoing described causes of action should be dismissed because the above three (3) bills were paid.
To support its motion, Defendant presented explanations of benefits dated November 22 and December 28, 2017, in which Defendant acknowledged receiving the three (3) bills on November 13, 2017 (see Motion, Soriano Aff. Ex. T, V, and X). The explanations of benefits dated November 22 and December 28, 2017 ("November and December EOB "), advised Plaintiff that Defendant received the bills but was delaying payment "pending the Examination Under Oath of the above-mentioned claimant" (id. ). The explanations of benefits included in the November and December EOB identified the claimant as J.R. (see id. ). Here, the November and December EOB indicated that Defendant sought verification from J.R. who is Plaintiff's assignor, but not Plaintiff. This Court notes that Defendant allegedly delayed its payment to the above three (3) bills pending EUO on Plaintiff's assignor, not on Plaintiff itself, based on Defendant's supporting documents presented in the Motion. Since letters that do not request verification to a plaintiff are insufficient to delay an insurer's time to pay or deny a claim by such plaintiff ( Mount Sinai Hosp. v Triboro Coach , 263 AD2d 11, 17 [2d Dept 1999] ; Parsons Med. Supply Inc. v Progressive Northeastern Ins. Co. , 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] *2 [App Term 2d Dept 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co. , 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] *2 [App Term 2d Dept 2010]; Alur Med. Supply, Inc. v Progressive Ins. Co. , 21 Misc 3d 134[A], 2008 NY Slip Op 52191[U] *1 [App Term 2d Dept 2008]), Defendant's November and December EOB failed to toll Defendant's time to pay the claims submitted by Plaintiff.
On another note, this Court does not have a reason to believe, based on the evidence presented by Defendant, that the language in Defendant's November and December EOB, indicating that the delay of payment pending only Plaintiff's assignor's EUO, were typographical errors. Here, Defendant did not address this issue in the Motion or in the Reply. Furthermore, Defendant's explanations of benefits regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and Eleventh Bill noted that payment was being delayed pending an EUO of both claimant (i.e., Plaintiff's assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ).
While Defendant presented evidence that it paid the First Bill, Fourth Bill, and Eighth Bill on March 1, 2018 (see Motion, Soriano Aff. Ex. ZZ and AAA), Defendant's failure to toll the time to pay the bills received November 13, 2017, rendered the payments untimely. As such, Defendant failed to meet its initial burden of demonstrating entitlement to dismissal of Plaintiff's First, Seventh, and Fifteenth causes of action, and Defendant's motion for summary judgment dismissing these causes of action must be denied ( Neptune Med. Care, P.C. v Dairyland Ins. Co. , 53 Misc 3d 152[A], 2016 NY Slip Op 51705[U] *1 [App Term 2d Dept 2016]); Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. , 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] *2 [App Term 2d Dept 2013], see Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. , 51 Misc 3d 129[A], 2016 NY Slip Op 50389[U] * 1 [App Term 2d Dept 2016]).).
The failure to timely pay these claims precludes Defendant from raising defenses to non-payment of the claims ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; New York & Presbyt. Hosp. v Eagle Ins. Co. , 17 AD3d 646, 647 [2d Dept 2005] ). In addition, "[b]y statute, overdue payments earn monthly interest at a rate of two percent and entitle [Plaintiff] to reasonable attorneys’ fees incurred in securing payment of a valid claim" ( Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318, see Ins. Law § 5106[a] ; 11 NYCRR §§ 65-3.9 [a], 3.10[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d at 563 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 278 ). In the instant matter, although Defendant paid Plaintiff for the First Bill, Fourth Bill and Eighth Bill as alleged in Plaintiff's First, Seventh and Fifteenth causes of action, such payments were untimely. As a result, Plaintiff is entitled to a statutory interest ( 11 NYCRR 65-3.9 [c]; East Acupuncture, P.C. v Allstate Ins. Co. , 61 AD3d 202, 207-08 [2d Dept 2009] ). The amount of Plaintiff's attorneys’ fees for the First, Seventh and Fifteenth causes of action is governed by statute and regulation ( Insurance Law § 5106[a] ; 11 NYCRR §§ 65-3.10 [a]; 65-4.6[c] and [d]). Although Plaintiff would have been entitled to summary judgment on statutory interest and attorneys’ fees based on those causes of action ( Nyack Hosp. v. Encompass Ins. Co. , 23 AD3d 535, 536 [2d Dept 2005] ; Optimal Well-Being Chiropractic, P.C. v MVAIC , 46 Misc 3d 134[A], 2014 NY Slip Op 51861[U] * 2 [App Term 2d Dept 2014]) if they were prayed for, here, Plaintiff did not cross move for summary judgment. Consequently, this Court will not award Plaintiff with statutory interest or attorney's fee based on the motion papers currently before this Court.
Plaintiff's Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First Causes of Action
Defendant argued that the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based respectively on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill were properly denied because Defendant timely denied the claims based on Plaintiff's failure to attend duly scheduled EUOs.
In order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d 693, 694 [2d Dept 2016] ). This may be established with evidence of the actual mailing or by an affidavit of a person "with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed" ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d at 694 ).
To support its motion, Defendant presented the first request letter dated December 11, 2017, scheduling the EUO for January 9, 2018 (see Motion, Soriano Aff., Ex. G). Defendant also presented a letter from Plaintiff's counsel dated January 3, 2018, which acknowledged receipt of the December 11, 2017 scheduling letter, but objected to the EUO (see Motion, Soriano Aff. Ex. K) on grounds addressed more fully below. Here, such evidence established timely submission of the EUO request by Defendant ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1. In addition, after Plaintiff failed to appear for the January 9, 2018 EUO, Defendant timely sent a second scheduling letter dated January 10, 2018, which scheduled the EUO for January 25, 2018 (see Motion, Soriano Aff. Ex. H) ( 11 NYCRR § 65-3.6 [b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home , 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co. , 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). The transcripts of the EUO proceedings (see Motion, Soriano Aff. Ex. J and M) constituted adequate proof of Plaintiff's nonappearance at the EUOs ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; TAM Med. Supply Corp. v 21st Century Ins. Co. , 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1).
In an affidavit appended to the Motion sworn October 31, 2019, Mueller, Defendant's litigation examiner, established Defendant's claim processing and standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff's claims within thirty (30) days after the last scheduled EUO at which Plaintiff failed to appear ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Tam Med. Supply Corp. v 21st Century Ins. Co. , 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1). Regarding the Second Bill, Third Bill, Sixth Bill, Ninth Bill, and two of the bills included within the Eleventh Bill, for which Plaintiff submitted claims to Defendant before Plaintiff's second non-appearance at an EUO, Defendant presented explanations of benefits, which delayed payment pending EUOs of both claimant (i.e., assignor) and provider (i.e., Plaintiff) (see Motion, Soriano Aff. Ex. Z, BB, DD, FF, HH, and JJ). Since Defendant timely mailed the EUO request letters to Plaintiff, these explanations of benefits, which requested verification from Plaintiff, tolled Defendant's time to pay or deny the claims submitted by Plaintiff ( Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. , 56 Misc 3d 132[A], 2017 NY Slip Op 50923[U] *1 [App Term 2d Dept 2017]). Finally, with respect to the Tenth Bill and a bill included within the Eleventh Bill, which were submitted after Plaintiff's second non-appearance at an EUO, Defendant presented the explanations of benefits and denial of claim forms which denied the claims based on these bills for Plaintiff's failure to attend the EUOs (see Motion, Soriano Aff. Ex. LL, MM, NN, OO, PP, QQ, RR, SS, TT, UU, VV, WW, XX, and YY). Therefore, Defendant's denials of the Third, Fifth, Ninth, Eleventh, Seventeenth, Nineteenth, and Twenty-First causes of action based on the Second Bill, Third Bill, Fifth Bill, Sixth Bill, Ninth Bill, Tenth Bill, and Eleventh Bill on February 5, 2018 and subsequent to that date were timely ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757, see 11 NYCRR §§ 65-3.5 [a]; 65-3.5[a]). Defendant's evidence that it requested Plaintiff's appearance at EUOs twice, that Plaintiff failed to appear both times and that Defendant denied Plaintiff's claim on that basis satisfied Defendant's burden of establishing a material policy breach by Plaintiff ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d at 1007 ; Interboro Ins. Co. v Clennon , 113 AD3d at 597 ).
IV. Plaintiff's Opposition to Defendant's Motion
In opposition, Plaintiff contended that factual issues existed precluding Defendant's motion for summary judgment.
Plaintiff contended that Defendant failed to respond to Plaintiff's objections to the EUOs. In the January 3, 2018 letter, Plaintiff's counsel objected to Plaintiff's EUO request based on the ground that the December 11, 2017 request letter from Defendant's counsel did not identify the dates of service or state objective reasons for requesting an EUO and argued that invoking State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005] ) did "not allow a carrier to obtain any and all information it request[ed]" (Motion, Soriano Aff. Ex. K). Plaintiff's counsel also notified Defendant's counsel that Plaintiff required $1,000.00 as reimbursement for loss of wages for attending an EUO.
Here, this Court's research revealed no case law or statutory or regulatory authority that a letter objecting to an EUO tolls or delays the time for a No-Fault benefit applicant to appear for an EUO. The "insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested" ( 11 NYCRR § 65-3.5 [c]). A letter objecting to an EUO does, however, preserve the No Fault benefit applicant's objections to the reasonableness of a requested EUO for litigation (see National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]; Starcar Med. Servs. v State Farm Mut. Auto. Ins. Co. , 53 Misc 3d 133[A], 2016 NY Slip Op 51415[U] *1 [App Term 2d Dept 2016]; Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. , 52 Misc 3d 134[A], 2016 NY Slip Op 51026[U] *1 [App Term 2d Dept 2016]). In our instant case, regarding the objections Plaintiff's counsel raised in its January 3, 2018 objection letter and in opposition to the Motion, the Court notes that Defendant's counsel's December 11, 2017 EUO request letter indeed indicated the claim number and date of loss which Plaintiff indicated on each claim Plaintiff submitted to Defendant. Moreover, "[a]ny requests by an insurer for additional verification need not be made on any prescribed or particular form" ( 11 NYCRR § 65-3.5 [b]). The No-Fault regulations do not require "an insurer's notice of scheduling an EUO to specify the reason[s] why the insurer is requiring the EUOs" ( City Chiropractic, P.C. v State Farm Ins. , 64 Misc 3d 134[A], 2019 NY Slip Op 51102[U] *1 [App Term 2d Dept 2019]; Bronx Chiropractic Care, P.C. v State Farm Ins. , 63 Misc 3d 132[A], 2019 NY Slip Op 50423[U] *1 [App Term 2d Dept 2019]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. , 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] *1 [App Term 2d Dept 2014], see Longevity Med. Supply, Inc. v Praetorian Ins. Co. , 47 Misc 3d 144[A], 2015 NY Slip Op 50685[U] *1 [App Term 2d Dept 2015]). Based on the evidence presented before this Court, it appears that Plaintiff's EUO request letter dated December 11, 2017 did not cite State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005] ), as Plaintiff's counsel alleged, and has complied with the requirement that it advise that Plaintiff "will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request" ( 11 NYCRR § 65-3.5 [e]). Further, a request for a flat fee for attending an EUO is improper ( Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. , 51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] *1 [App Term 2d Dept 2016]).
Contrary to Plaintiff's position, Defendant in fact responded to Plaintiff's letters objecting to the EUOs (see Motion, Soriano Aff. Ex. L, O and Q) even though no such response is required to establish noncompliance with a scheduled EUO (see Interboro v Clennon , 113 AD3d at 597 ; 21st Century Pharm., Inc. v Integon Natl. Ins. Co. , 69 Misc 3d 142[A], 2020 NY Slip Op 51364[U] *1 [App Term 2d Dept 2020]; Dynamic Balance Acupuncture, P.C. v State Farm Ins. , 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U] *1 [App Term 2d Dept 2019]). Also contrary to Plaintiff's argument, Defendant was not required to provide "objective reasons for requesting [an] EUO" ( 21st Century Pharm., Inc. v Integon Natl. Ins. Co. , 2020 NY Slip Op 51364[U] *1; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co. , 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] *1 [App Term 2d Dept 2017], see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. , 64 Misc 3d 136[A], 2019 NY Slip Op 51158[U]*2 [App Term 2d Dept 2019] ; Dynamic Balance Acupuncture, P.C. v State Farm Ins. , 2019 NY Slip Op 50171[U] *2). Finally, Plaintiff cited Matter of Progressive Cas. Ins. Co. [Elite Med. Supply of NY, LLC] (162 AD3d 1471 [4th Dept 2018] ), which held that claimants objecting to verification requests were entitled to have an arbitrator to decide controversy, but which had no bearing on the instant matter.
Here, Plaintiff failed to raise factual issues regarding Defendant's defense of Plaintiff's failure to attend an EUO. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact, that the controversy regarding Plaintiff's third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action can be decided as a matter of law ( CPLR 3212 [b] ; Jacobsen v New York City Health and Hosps. Corp. , 22 NY3d 824 [2014] ; Brill v City of New York , 2 NY3d 648 [2004] ), that Plaintiff has failed to raise factual issues requiring a trial ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home , 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. , 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [App Term 2d Dept 2017]), and that Defendant is entitled to dismissal of Plaintiff's third, fifth, ninth, eleventh, seventeenth, nineteenth, and twenty-first causes of action.
Plaintiff's Second, Fourth, Sixth, Eighth, Tenth, Twelfth, Fourteenth, Sixteenth, Eighteenth, Twentieth, and Twenty-Second Causes of Action
This Court notes that in Plaintiff's second, fourth, sixth, eighth, tenth, twelfth, fourteenth, sixteenth, eighteenth, twentieth, and twenty-second causes of action, Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill. It is well established by case law that in No-Fault actions, attorneys’ fees are calculated based on a single insured, not on each bill submitted by a provider ( LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. , 12 NY3d 217, 223 [2009] ; A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. , 26 Misc 3d 140[A], 2010 NY Slip Op 50264[U] *2 [App Term 2d Dept 2010]). As discussed above, this Court finds that Defendant failed to timely pay the claims under the first, seventh and fifteenth causes of action, which entitles Plaintiff to recover attorneys’ fees ( Insurance Law § 5106[a] ; 11 NYCRR 65-3.9 [a]; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 278 ). Given that Plaintiff's first, seventh and fifteenth causes of action survive summary judgment dismissal, the Court dismisses the improperly pleaded second, fourth, sixth, eighth, tenth, twelfth, fourteenth, eighteenth, twentieth, and twenty-second causes of action, but preserves the sixteenth cause of action for attorneys’ fees regarding the first, seventh, and fifteenth causes of action.
V. Decision
As discussed above, although Defendant paid the bills pleaded in Plaintiff's first, seventh and fifteenth causes of action, Defendant paid those bills untimely and Plaintiff is entitled to recovery attorney's fees and statutory interest. As a result, Plaintiff's first, seventh and fifteenth causes of action survive Defendant's motion for summary judgement to dismiss. Although Plaintiff improperly pleaded claims for attorneys’ fees based on each individual bill in its respective eleven (11) causes of action, this Court preserves Plaintiff's sixteenth cause of action but otherwise dismisses other causes of action regarding attorneys’ fees in order to address the attorney's fee for the first, seventh, and fifteenth causes of action. Because Plaintiff did not cross-move for summary judgement, here, this Court will not grant Plaintiff with attorney's fee or statutory interest sua sponte. The rest of Plaintiff's causes of action are dismissed due to Plaintiff's failure to attend scheduled EUO.
VI. Order
Accordingly, it is ORDERED that Defendant's Motion is granted to the extent of dismissing Plaintiff's second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, and twenty-second causes of action based on Plaintiff's Second Bill, Third Bill, Fifth Bill, Sixth Bill, Seventh Bill, Ninth Bill, Tenth Bill and Eleventh Bill and the separately pleaded claims for attorneys’ fees, but is otherwise denied, and it is further
ORDERED that Plaintiff's first, seventh, and fifteenth causes of action to recover the First, Bill, Fourth Bill and Eighth Bill, respectively in the amounts of $405.60, $80.02 and $204.41, for services provided respectively, from October 18 through November 2, 2017, on October 13, 2017, and on October 11, 2017, shall proceed to trial only on the issue of the amount of statutory interest, and it is further
ORDERED that Plaintiff's sixteenth cause of action to recover attorneys’ fees shall proceed to trial.
This constitutes the DECISION and ORDER of the Court.