Opinion
CV-728829-17/KI
04-30-2021
Jules Francois PARISIEN, M.D., a/a/o Gonzales, Nicanor, Plaintiff, v. TRAVELERS INSURANCE COMPANY, Defendant.
Law Offices of Aloy O. Ibuzor, Hartford, Connecticut (Duane Frankson of counsel), for Travelers Insurance Company, defendant. The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Jules Francois Parisien, M.D., plaintiff
Law Offices of Aloy O. Ibuzor, Hartford, Connecticut (Duane Frankson of counsel), for Travelers Insurance Company, defendant.
The Rybak Firm, PLLC (Oleg Rybak of counsel), New York City, for Jules Francois Parisien, M.D., plaintiff
Richard Tsai, J.
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 for an examination under oath (EUO) on January 11, 2017 and March 8, 2017, or in the alternative, to compel plaintiff to appear for an examination before trial (Motion Seq. No. 001). Defendant also seeks an order deeming certain documents as genuine and certain facts as admitted which were submitted in a notice to admit to plaintiff's counsel.
Plaintiff opposes the motion and cross-moves for summary judgment in his favor (Motion Seq. No. 002). Defendant did not submit any opposition papers to plaintiff's cross motion or any reply papers in further support of defendant's 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.
BACKGROUND
On September 27, 2016, plaintiff's assignor, Nicanor Gonzalez, was allegedly injured in a motor vehicle accident (see defendant's exhibit C in support of motion, complaint ¶ 3; see also plaintiff's exhibit 1 in support of cross motion, NF-AOB form).
On March 9, 2017, plaintiff allegedly rendered medical services to its assignor (see defendant's exhibit A3 in support of motion, NF-3 forms dated 03/20/2017). Plaintiff allegedly submitted two bills these services: one in the amount of $267.79, and another in the amount of $1,625, to a post office box for defendant located in Melville, New York (id. ; see also plaintiff's exhibit 4 in support of cross motion, aff of Julien Parisien, MD ¶¶ 34-39). Defendant allegedly received both bills on March 30, 2017 (see defendant's exhibit A in support of motion, aff of Lorraine Couvaris ¶ 8 [e]-[f]).
Scheduling of the EUO on January 11, 2017
Prior to the receipt of the bills at issue, by a letter dated December 9, 2016, addressed to the Rybak Firm, PLLC, defendant's counsel scheduled an EUO of plaintiff to be held on January 11, 2017 at 10:00 a.m. at a court reporting location in Brooklyn (see defendant's exhibit B, scheduling letter). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on December 9, 2016 (see id. ). Copies of the letter were allegedly sent to plaintiff, among others.
By a letter dated January 5, 2017, the Rybak Firm, PLLC replied to the December 9, 2016 letter, and it informed defendant's counsel that plaintiff retained the Rybak Firm, PLLC to represent his interests in the EUO (see defendant's exhibit B in support of motion). However, plaintiff's counsel indicated that the chosen date was inconvenient for Dr. Parisien and should be rescheduled, stating,
"Please be advised that Dr. Parisien has fully booked his schedule till the end of February 2017. Accordingly as the law provides that an EUO be scheduled for a time and place that is convenient to the person being examined, please let our office know which other dates in March Travelers is available to conduct the EUO of Dr. Parisien so that we may arrange for a mutually convenient date, time and location"
* * *
Finally, please be advised that Dr. Parisien must be reimbursed in the amount of $5000.00 per claimant for his loss of income and business opportunities he would suffer while preparing for, traveling to, appearing at and traveling from the EUO you have requested.
* * *
Prior to the EUO, Dr. Parisien needs a firm reassurance by you or Travelers that Travelers has agreed to reimburse our client for his time in the amount listed above, and at the commencement of the EUO, Dr. Parisien must be presented with a check (of the entire amount for $5,000.00 per claimant) from Travelers compensating our client"
(see defendant's exhibit B in support of motion [emphasis in original]).
On January 11, 2017, defendant's counsel, by Duane Frankson, Esq., placed a statement on the record at 11:48 a.m. that he had been present at the EUO location since 9:46 a.m., that the time was 11:48 a.m., and no one has appeared on behalf of Dr. Jules Francois Parisien (see defendant's exhibit B in support of motion, Jan 11, 2017 EUO tr. at 6).
Scheduling of the EUO on March 8, 2017
By a letter dated January 12, 2017 addressed to the Rybak Firm, PLLC, defendant's counsel stated that the EUO scheduled for January 11, 2017 "will be recorded as a non-appearance" and scheduled a follow-up EUO of plaintiff to be held on March 8, 2017 at 10:00 a.m. at the same court reporting location in Brooklyn (see defendant's exhibit B in support of motion, scheduling letter). The letter further stated, "We will require submission of detailed appoint [sic] logs before considering any further reschedule date for the EUO.... Please note your response fails to include documentation substantiating your demand for $5,000 ... Travelers will issue a disbursement for loss of earnings and travel expense claims for medical providers up to $500, immediately after EUO has been conducted. Compensation beyond $500 will be considered only after documentation substantiating the amount demanded has been received and examined. There is no requirement that compensation occur in advance of the scheduled examination" (id. ). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on January 12, 2017 (see id. ).
By a letter dated February 27, 2017, the Rybak Firm, PLLC replied to the January 12, 2017 letter, and plaintiff's counsel again indicated that the chosen date was inconvenient for Dr. Parisien and should be rescheduled, stating,
"Please note 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 as to clear or extend them accordingly, which is usually the main reason/valid excuse of their unavailability to appear for a potential EUO.
As such is the case, please be advised that Dr. Parisien has extended his schedule for the next two (2) months, and will be unavailable to appear for the requested EUO currently scheduled for March 8, 2017. Accordingly, as the law provides that an EUO be scheduled for a time and place that is convenient to the person being examined, we reiterate our previous request for an adjournment. Please let our office know which other dates in May 2017 Travelers is available to conduct the EUO of Dr. Parisien so that we may arrange for a mutually convenient date, time and location"
(see defendant's exhibit B in support of motion [emphasis in original]).
By a letter dated March 6, 2017, defendant's counsel responded, "We will not reschedule the examination of your client, Jules Francois Parisien, MD, scheduled for March 8, 2017; your client's appearance is required and should your client fail to appear the date will be recorded as the second non-appearance" (see defendant's exhibit B in support of motion). According to an affidavit of service, the scheduling letter was sent by regular mail to the Rybak Firm, PLLC on March 8, 2017, and the documents were emailed and faxed to their office (see id. ).
On March 8, 2017, defendant's counsel, by Duane Frankson, Esq., placed a statement on the record at 10:58 a.m. that he had been present at the EUO location since 9:45 a.m., that the time was 11:05 a.m., no one has arrived, and no one had contacted him to indicate they were attending (see defendant's exhibit B in support of motion, Mar 8, 2017 EUO tr. at 3-6).
By a letter dated March 10, 2017, plaintiff's counsel replied to defendant's counsel letter dated March 6, 2017, stating, in pertinent part:
"Moreover, you were advised in advance of the appearance that our client was unavailable for the first chosen EUO date. It is not unreasonable to request for an adjournment past that date, but considering that first date a "no show" is unreasonable by any standard. As you well know, it is common courtesy to extend adjournments between counsel in order to accommodate everyone's busy schedule. Our office has extended many such courtesies to your firm.
Further, the fact that Travelers assigned a second, arbitrary date for the EUO of our client does not obfuscate the need to have a mutually convenient dated for the examination. It was again communicated previously that the chosen date was inconvenient for Dr. Parisien. And you will not be provided with patient logs to substantiate the level of inconvenience because it is simply a dilatory, red-tape delay tactic"
(see defendant's exhibit B in support of motion).
By a letter dated April 6, 2017, defendant's counsel responded, in relevant part, "Your representations concerning your client's availability have been and continue to be vague. Despite our attempts to accommodate your client, you consistently seek to adjourn the matter" (see defendant's exhibit B in support of motion).
Denial of Claim Forms
On April 10, 2017, defendant allegedly issued a denial of the bill in the amount of $267.79, for the date of service on March 9, 2017 (see defendant's exhibit A4 in support of motion, NF-10 Forms). On April 11, 2017, defendant allegedly issued a denial of the bill in the amount of $1,625, for the date of service on March 9, 2017 (see id. ). The Explanation of Benefits attached to each denial identically stated, in relevant part:
"JULES FRANCOIS PARISIEN HAS FAILED TO COMPLY WITH ITS OBLIGATION TO PRESENT A PROPER PROOF OF CLAIM ... BY FAILING TO APPEAR FOR AN EXAMINATION UNDER OATH ON 1/11/17 AND 3/8/17. THEREFORE, YOU HAVE FAILED TO SATISFY A CONDITION OF COVERAGE — YOUR CLAIM IS DENIED. DUE TO THE FAILURE OF JULES FRANCOIS PARISIEN TO COMPLY WITH POLICY — NO-FAULT GUIDELINES — REQUIREMENTS, THE ENTIRE CLAIM FOR NO-FAULT BENEFITS IS DENIED"
(see defendant's exhibit A4 in support of motion, NF-10 forms and Explanations of Benefits).
The Instant Action
On August 24, 2017, plaintiff commenced this action, asserting two causes of action to recover unpaid first-part no-fault benefits for the services rendered, plus interest, and a third cause of action seeking attorneys’ fees (see defendant's exhibit C, summons and complaint). On September 29, 2017, defendant allegedly answered the complaint (see defendant's exhibit C in support of motion, answer and affidavit of service).
DISCUSSION
I. Defendant's Motion for Summary Judgment and other relief (Motion Seq. No. 001)
Defendant argues that it is entitled to summary judgment dismissing the complaint because plaintiff twice failed to appear for duly scheduled EUOs on January 11, 2017 and March 8, 2017. In the alternative, defendant moves to compel plaintiff to appear for an examination before trial. Defendant also seeks an order deeming certain documents as genuine and certain facts as admitted which were submitted in a notice to admit to plaintiff's counsel.
A. The branch of defendant's motion for summary judgment
"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]).
"[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]). 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]).
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 , ––– NY3d ––––, 2021 NY Slip Op 01933, *3 [2021]; New York & Presbyt. Hosp. v Allstate Ins. Co. , 29 AD3d 547, 547 [2d Dept 2006], quoting Residential Holding Corp. v Scottsdale Ins. Co. , 286 AD2d 679, 680 [2d Dept 2001] ; accord American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013] ).
"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, defendant established mailing of the EUO scheduling letters, by submitting affidavits of service, which stated that the EUO scheduling letter dated December 9, 2016 was sent by regular mail to the Rybak Firm, PLLC on December 9, 2016, and that the EUO scheduling letter dated January 12, 2017 was sent by regular mail to the Rybak Firm, PLLC on January 12, 2017 (see defendant's exhibit B in support of motion).
Plaintiff fails to raise a triable issue of fact as to whether the EUO scheduling letters were mailed. "[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption" ( Kihl v Pfeffer , 94 NY2d 118, 122 [1999] ). Contrary to plaintiff's argument, these affidavits of service were from a person with personal knowledge of the actual mailing.
Plaintiff points out that the EUO scheduling letters did not include the floor number or suite number in the address, and therefore argues that the EUO scheduling letter was sent to the wrong address (affirmation of plaintiff's counsel in support of cross motion and in opposition to motion ¶ 112). However, minor errors in the mailing address will not render service void where it is "virtually certain" that the mailing will arrive at its intended destination (see Brownell v Feingold , 82 AD2d 844, 845 [2d Dept 1981] ). Here, defendant submitted copies of the letters from plaintiff's counsel, who acknowledged receipt of the EUO scheduling letters.
2. Plaintiff's failure to appear
Defendant established that plaintiff twice failed to appear for EUOs on January 11, 2017 and March 8, 2017, by submitting certified transcripts from the EUOs scheduled on January 11, 2017 and March 8, 2017. Although plaintiff argues that defendant must also submit an affidavit from someone with personal knowledge that plaintiff failed to appear at an EUO (see affirmation of plaintiff's counsel in support of cross motion and in opposition to motion ¶¶ 62-63), a certified transcript memorializing the missed appearance is 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 opposition, plaintiff extensively argues that defendant failed to establish that it had objective reasons for requesting plaintiff's EUO (see affirmation of plaintiff's counsel in support of cross motion and in opposition to motion ¶¶ 92-108, 123-147). 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, "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 next argues that defendant cannot meet its burden that plaintiff failed to appear at the EUOs "because it repeatedly scheduled EUOs that were inconvenient to Plaintiff and made no effort to cooperate with Plaintiff to schedule the EUOs at a time and place that was reasonable for all parties" (affirmation of plaintiff's counsel in support of cross motion and in opposition to motion ¶ 110). Plaintiff asserts that "Plaintiff, through counsel, made clear that because Plaintiff was a medical provider, his schedule was often booked 2-4 months in advance. Yet defendant never scheduled or tried to schedule an EUO outside of this time constraint. As a result, Plaintiff was not able to attend EUOs that defendant scheduled which conflicted with Plaintiff's schedule" (id. [internal citations omitted]). In its moving papers, defendant contended, "Plaintiff's communications only demonstrate an effort to frustrate the claim process and have no substantive value beyond confirming notice occurred and Plaintiff failed to attend" (affirmation of defendant's counsel in support of motion ¶ 13).
As plaintiff points out, "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]). 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]).
However, 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 more than a month before the scheduled EUOs. Defendant's counsel apparently received plaintiff's letter dated January 5, 2007 on January 10, 2017, the day before plaintiff's EUO, as indicated by a date stamp on the letter (see defendant's exhibit B in support of motion). Similarly, defendant's counsel apparently received plaintiff's letter dated February 27, 2017 on March 2, 2017, six days before plaintiff's scheduled EUO on March 8, 2017 (see id. ).
Assuming, for the sake of argument, that the requests of plaintiff's counsel were both timely, plaintiff did not raise a triable issue of fact as to whether these requests were proper, or that they were made in good faith. Plaintiff requested two 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 plaintiff's counsel points out, 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 his requests for adjournments for two to three months were either proper, or made in good faith.
Lastly, plaintiff contends that defendant "failed to agree to reimburse the provider" for loss of earnings (see affirmation of plaintiff's counsel ¶ 111). Plaintiff demanded a flat, up-front reimbursement in the amount of "$5,000 per claimant", which plaintiff insisted be tendered by check "at the commencement of the EUO" (see defendant's exhibit B in support of motion, letter from plaintiff's counsel dated January 5, 2017). 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. In this case, the request of plaintiff's counsel for a flat, up-front fee of $5,000 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"]).
Finally, 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 he had been present before the scheduled start time of the EUOs. 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. Neither does plaintiff submit an affidavit stating that he had appeared for any of the EUOs.
Thus, plaintiff fails to raise a triable issue of fact as to whether plaintiff twice 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]).
Here, the bills at issue were dated March 20, 2017 (see defendant's exhibit A3 in support motion, NF-3 Forms), and the denials were allegedly issued on April 10 and 11, 2017. Although defendant claims to have received the bills on March 30, 2017, the actual date of receipt is not a material issue of fact in this case. Even assuming, for the sake of argument, that the bills were received on March 20, 2017, the issuance of the denials on April 10 and April 11, 2017 would be within 30 days of receipt of the bills.
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 ( 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 ). In this case, the follow-up EUO scheduling letter was sent before the bills at issue were received.
Plaintiff argues that defendant must establish when the NF-2 form was mailed to establish timely scheduling of the EUO, because the EUO was a "pre-claim" EUO, citing Okslen Acupuncture, P.C. v Lancer Insurance Company (39 Misc 3d 144[A], 2013 NY Slip Op 50821[U] [App Term, 1st Dept 2013] ). This argument is without merit. Proof of timely mailing of the NF-2 form "is not part of an insurer's prima facie burden when seeking summary judgment on the ground that a provider or the provider's assignor failed to appear for duly scheduled EUOs" ( BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co. , 70 Misc 3d 138[A], 2021 NY Slip Op 50083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Plaintiff's reliance upon Okslen Acupuncture, P.C. is misplaced. In that case, the Appellate Term, First Department held that pre-claim requests for EUOs do not trigger tolling of the 30-day period for an insurer to pay or otherwise deny a claim. Here, tolling is not at issue because the denials were allegedly issued within 30 days after they were received.
To establish the mailing of the denials, defendant submitted an affidavit from Lorraine Couvaris, a Claim Litigation Representative employed by defendant (see defendant's exhibit A in support of motion, Couvaris aff ¶¶ 1-2). Defendant also submitted an affidavit from Mary A. Googe, the manager of a Special Processing Unit of a centralized mailing facility located in Norcross, Georgia, referred to as the Norcross Data Service Center, which does mailing for The Travelers Indemnity Company and its affiliated underwriting companies (see defendant's exhibit A1 in support of motion, Googe aff ¶¶ 1-3).
Couvaris has been employed in the Claim Department since May 2005, and she has training and experience in claim processing and mail processing procedures that were in effect for the claims at issue (Couvaris aff ¶¶ 3-4). Couvaris processed the bills and issued the denials in this case (id. ¶ 8).
According to Couvaris, claims and documents submitted in support of claims that Travelers received were directed to a Claim Representative for processing (id. ¶ 5 [d]). The Claim Representative noted receipt of the submission on an electronic record, reviewed, the submission, and determined if claims were eligible for coverage (id. ). The Claim Representative would seek an EUO if an EUO was deemed appropriate to ascertain the validity of claims (id. ¶ 5 [o]). Once the Claim Representative received the results of an EUO, the Claim Representative would make a determination concerning coverage of related claims (id. ¶ 5 [p]). If the determination of a Claim Representative was a denial, two copies of an "explanation of benefits" or NF-10, and any relevant documents were prepared and directed to the claimant and/or any designated assignee (id. ¶ 5 [q] [iii]). Contemporaneously with the determination, the Claim Representative would note the process on an electronic log (id. ¶ 5 [r]). The claims and documents submitted in support of the claims were kept, maintained, and relied upon by the Claim Representative in processing of the claim, and copies of all documents and electronic logs related to a claim are maintained by defendant in the regular course of business (id. ¶ 7)
Couvaris described the customary practice of defendant's Melville Claim Center for correspondence as follows: a Claim Representative prepared the documents and reviewed them to ensure the information noted was accurate, and then transmitted the documents electronically for mailing to Norcross Data Center, located in Norcross, Georgia (id. ¶ 6 [a]).
According to Googe, the Norcross Data Service Center is the centralized facility from which certain Travelers documents, including no-fault denials (form NF-10s), verification requests, and associated notices of claim processing delays, are printed, batched, and mailed (Googe aff ¶ 4). When a Travelers employee completes an NF-10 denial, verification request, or a delay letter from his or her desktop computer, and executes the "send and archive option," the document will be electronically transmitted to the Norcross Data Service Center, where it is batched, printed, and then mailed (id. ¶ 6).
Once transmitted, documents are electronically batched; and, when the documents are printed, they contain encoded information, which identifies the particular batch they were processed in (id. ¶ 8). The documents are then placed into a machine which inserts them into a windowed envelope where the address of the recipient is shown (id. ). The envelope is sealed, and the appropriate amount of postage is applied according to size and weight (id. ). The machine counts the number of documents and envelopes processed to check that all mail in a particular batch has gone through the process, by comparing the actual number of envelopes with the expected number (id. ). A visual inspection is also performed to ensure that the address of the recipient appears visible in the envelope window (id. ¶ 9). The reconciled mail is then placed into covered United States Postal Service trays, which are secured and placed into United States Postal Service designated containers, which are then delivered to a secure loading facility, where they are picked up by United States Postal employees (id. ¶ 10).
With respect to NF-10 denials, the denials are mailed in duplicate, and mailed to the identified recipient no later than the next business day after the date which appears on the denial (id. ¶¶ 6-7, 13).
In this case, Couvaris stated that defendant received two claims for services rendered to Nicanor Gonzalez on March 30, 2017 (Couvaris aff ¶ 8 [f]). After reviewing the claims, Couvaris denied them for the failure of plaintiff to appear at scheduled EUOs on January 11, 2017 and March 8, 2017 (id. ¶ 8 [g]). Couvaris issued denial of claim forms in duplicate for each of the claims, and sent them to plaintiff and Gonzalez (id. ¶ 8 [h]). Couvaris then documented the electronic record with an account of her review and denial (id. ¶ 8 [i]).
Based on the detailed affidavits of Couvaris and Googe, defendant established proof of mailing of the denials no later than the next business day after April 10 and 11, 2017, the date that appears on the denials, in accordance with a standard office practice and procedure ( Residential Holding Corp. v Scottsdale Ins. Co. , 286 AD2d 679, 680 [2d Dept 2001] ; Crystal Acupuncture, P.C. v Travelers Ins. , 66 Misc 3d 130[A], 2019 NY Slip Op 52055[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
"[T]o rebut the presumption, 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 , ––– NY3d ––––, 2021 NY Slip Op 01933, *3).
Contrary to plaintiff's argument, defendant did submit an affidavit from someone with personal knowledge of the denials, because Couvaris stated that she was the Claims Litigation Representative who issued the denials, and Couvaris also had personal knowledge of the claims procedures and mailing procedures (Couvaris aff ¶¶ 4, 8 [g]).
As plaintiff points out, Couvaris indicated that she had reviewed electronic logs related to this claim, but defendant did not submit copies or printouts of the electronic logs. "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 Couvaris could only have obtained from the electronic log would not be admissible. However, in this case, Couvaris had personally issued the denials, and had submitted copies of the denials themselves. Plaintiff does not point to any information in Couvaris's affidavit relevant to proof of mailing that could only have been derived from a review of the electronic log.
Contrary to plaintiff's argument, the failure to send a denial of claim form in duplicate as required under 11 NYCRR 65-3.8 (c) (1) is not, on its own, a fatal error ( Performance Plus Med., P.C. v Utica Mut. Ins. Co. , 47 Misc 3d 129[A], 2015 NY Slip Op 50399[U] [App Term, 2d Dept 2d, 11th & 13th Jud Dists 2015]; Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In any event, Couvaris and Googe averred that denial of claim forms are sent in duplicate (Couvaris aff ¶ 8 [h]; Googe aff ¶ 6).
Acupuncture Prima Care, P.C. v State Farm Mutual Auto Insurance Company (17 Misc 3d 1135[A], 2007 NY Slip Op 52273[U] [Dist Ct, Nassau County 2007] ), which plaintiff cites, is distinguishable.
There, to establish proof of mailing, the defendant submitted two affidavits—an affidavit from a claims representative from the defendant's office in Ballston Spa, New York and an affidavit from a claims support supervisor from the defendant's office in Melville, New York. The claims representative described the procedure for generating the denial of claim forms, which were then sent to Claims Support Services personnel for processing (id. at *2). The affidavit from the Claims Support Services Supervisor stated, in essence, that the generated denial of claim forms are retrieved from a printer, placed in an envelope, and picked up by a courier who delivers the envelope to the United States Postal Service (id. at *2-3).
The court in Acupuncture Prima Care, P.C. ruled, "while this may describe a ‘standard office practice and procedure,’ it does not describe one "used to ensure that items were properly addressed and mailed" (id. at *3 [internal citation omitted]). The court reasoned that the procedure described did not contain enough safeguards to "take into account the possibility that an item of mail might get misplaced or lost anywhere between the CSA pool and the United States Post Office" (id. ) The court also faulted the affiants for not indicating the basis for their knowledge that the office practice and procedure was followed, and the affiants failed to indicate that they were familiar with the defendant's office practices and procedures when the first of the denials were allegedly mailed (id. at *3-4). Finally, the court indicated that neither of the affiants (who were in Ballston Spa and Melville) indicated from which office the denials were allegedly mailed, when the denials bore an address from Parsippany, New Jersey (id. ).
Here, unlike the affiants in Acupuncture Prima Care, P.C. , Googe established personal knowledge of the standard mailing procedures, based on training and experience that Googe received (Googe aff ¶¶ 2-3). In any event, the same court which decided Acupuncture Prima Care, P.C. acknowledged that its prior cases were no longer good law in light of St. Vincent's Hospital of Richmond v Government Employees Insurance Company (50 AD3d 1123 [2d Dept 2008] ) (see 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] ).
In sum, plaintiff failed to raise a triable issue of fact as to whether the denials were mailed to plaintiff no later than one business day after April 10 and April 11, 2017.
Given all the above, the court grants the branch of defendant's motion for summary judgment dismissing the complaint, on the ground that plaintiff twice failed to appear for duly scheduled EUOs on January 11, 2017 and March 8, 2017.
B. The branch of defendant's motion to compel plaintiff to appear for an examination before trial
In light of dismissal of the complaint, the branch of defendant's motion which sought, in the alternative, an order compelling plaintiff to appear for an examination before trial, is denied as academic.
C. The branch of defendant's motion seeking an order deeming documents as admitted pursuant to CPLR 3123
The branch of defendant's motion seeking an order to "deemed the documents described in Defendant's Notice to Admit as genuine and the matters of fact set forth in Defendant's Notice to Admit as true" is denied as academic, because defendant was granted summary judgment dismissing the complaint. In any event, "[t]he question as to whether a party has rightly or wrongly declined for reasons set forth to admit or to deny an item tendered in a notice to admit is for the trial court" ( Belfer v Dictograph Products , 275 App Div 824 [1st Dept 1949] ).
II. Plaintiff's Cross Motion for Summary Judgment (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 12[A]; 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Here, any deficiencies in plaintiff's proof of mailing were cured by defendant's submission of the denial of claim form in defendant's motion papers, which admitted receipt of the bill ( 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]).
However, plaintiff's cross motion for summary judgment in its favor against defendant is denied. As discussed above, defendant timely denied the bills on the grounds that plaintiff twice failed to appear for duly scheduled EUOs.
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that defendant's motion for summary judgment dismissing the complaint, or in the alternative, to compel plaintiff to appear for an examination before trial and other relief (Motion Seq. No. 001) is GRANTED TO THE EXTENT that the branch of defendant's motion seeking summary judgment dismissing the complaint is granted, and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the remainder of defendant's motion is denied; and it is further
ORDERED that plaintiff's cross motion for summary judgment in its favor (Motion Seq. No. 002) is DENIED; and it is further
ORDERED that the Clerk is directed to enter judgment in defendant's favor accordingly.
This constitutes the decision and order of the court.