I. Papers The following papers filed with the court on June 18, 2019 were read on this motion (“Motion”) by Defendant for a summary judgement seeking to dismiss Plaintiff’s complaint pursuant to CPLR 3212. The Motion was submitted on March 13, 2020 without opposition, after respective adjournments on July 18, 2019, October 2, 2019 and January 27, 2010 by various courts. This matter is now before this Court during the coronavirus pandemic before its trial date of February 5, 2021. Papers Numbered Notice of Motion dated June 17, 2019 1 Attorney Affirmation (“Affirmation”) dated June 17, 2019 2 Affirmation of David F. B., Esq. of Rubin, Fiorella & Friedman LLP, Attorney for Defendant, dated April 18, 2019 3 Affidavit of Debbie F. (“Claim Specialist Affidavit”), Claim Specialist for Defendant, dated May 8, 2019 with Certificate of Conformity and Verification 4 Exhibit A — Plaintiff’s Summons and Complaint, with exhibits, filed with the court on October 25, 2018 5 Exhibit A — Defendant’s Answer, Notice for Discovery and Inspection, Demand for Verified Interrogatories, Notice to Take Deposition upon Oral Examination, and Demand for Expert Information dated December 20, 2018 respectively 6 Exhibit A — Affidavit of service of Answer, Notice for Discovery and Inspection, 7 Demand for Verified Interrogatories, Notice to Take Deposition upon Oral Examination and Demand for Expert Information upon Attorneys for Plaintiff dated December 21, 2018 Exhibit B — Police Accident Report (“Police Report”) dated October 11, 2017 8 Exhibit C — Transcript (“Transcript”) of Examination Under Oath (“EUO”) of Plaintiff assignor (“Assignor”), Tazaya P., dated February 13, 2018, signed by notary public Soraye M. 9 Exhibit D — Plaintiff’s letter (“First Demand for Subscription”) to Goldin & Rivin, PLLC, attorneys for Plaintiff, dated March 2, 2018, requesting Transcript to be subscribed by Assignor, together Affidavit of Service dated March 2, 2018 10 Exhibit D — Plaintiff’s second letter (“Second Demand for Subscription,” together with the First Demand for Subscription, “Demand for Subscription” ) to Goldin & Rivin, PLLC, attorneys for Plaintiff, dated April 6, 2018, requesting Transcript to be subscribed by Assignor, together Affidavit of Service dated April 6, 2018 11 Exhibit E — Handwritten Affidavit of Peter C. (“Adverse Driver”) dated February 27, 2018 12 Affidavit of Service of Notice of Motion and Affirmation upon Sanders Barshay Grossman, LLC, attorney for Plaintiff on record, dated June 17, 2019 13 II. Background Assignor allegedly had a car accident on October 11, 2017. Assignor “was the driver in the insured vehicle…[which] was insured by…[Defendant] in the name of [Assignor]” (Affirmation at 1-2). Two passengers, Akeil C. and Jayquone B., were in the insured vehicle when the alleged incident occurred. “ Passenger in…[the insured vehicle] did RMA with complaint of leg pain” (Police Report at 1, 3) while Defendant stated that the Police Report “indicated no injuries at the scene” (Affirmation at 2). Assignor underwent treatment at Plaintiff’s facility between October 23, 2017 and December 6, 2017 incurring a medical bill in the total amount of $845.78 (See Exhibit A, Plaintiff’s Summons and Complaint). Plaintiff submitted its medical bill to Defendant. Defendant denied such claim based on a “finding that the loss was not an accident and [Assignor] made false statements with the intent to conceal or misrepresent material facts or circumstances related to [the] loss in furtherance of an insurance fraud scheme.” In addition, Defendant denied all claims related to the alleged collision based on fraud. (See Claim Specialist Affidavit.) III. Discussion In the Motion, Defendant prayed for a summary judgement seeking to dismiss Plaintiff’s complaint on the following grounds: 1) Defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident” (Affirmation at 3); and 2) Assignor’s failure to subscribe the Transcript. CPLR 3212 states that “[a] motion [for summary judgment] shall be granted if…the cause of action…[is] established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” and that “there is no defense to the cause of action” (CPLR 3212 [b]; Rodriguez v. City of New York, 31 NY3d 312 [2018]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). 1. Defendant’s “founded belief that the alleged injury [did] not arise out of an insured incident” In support of its “founded belief that the alleged injury [did] not arise out of an insured incident” (Affirmation at 3), Defendant argued that: 1) “the insured vehicle [drove] directly into [the adverse] vehicle” pursuant to the Adverse Driver; 2) “the insured vehicle was destroyed prior to the collision” pursuant to the Adverse Driver; 3) Defendant “had difficulty obtaining statements from the insured or occupants of the insured vehicle after the collision”; 4) “[o]ne of the occupants was involved in a prior loss less than one month before the collision;” and 5) “[t]he EUO testimony of [Assignor] consist[ed] of incomplete and inconsistent testimony” due to the fact that Assignor’s “answer to questions were so vague or she would respond ‘I [didn't] know’ or ‘I [didn't] remember’ to essentially every question asked.” As a result, Defendant suspected that the collision was “staged,” and therefore, was not a true accident covered by the insurance, citing V.S. Medical Services, P.C. v. Allstate Ins. Co., 11 Misc. 3d 334 (Affirmation at 2-5). Court in V.S. Medical stated that “[i]n the no-fault context, the plaintiff need[ed] not prove coverage as part of its prima facie case…[A] defendant asserting a lack of coverage defense must set forth admissible evidence of ‘the fact or [a] founded belief that the alleged injury [did] not arise out of an insured incident’” (V.S. Medical Services, P.C. v. Allstate Ins. Co. at 340). After trial, V.S. Medical court dismissed plaintiff’s complaint based on the following factors: “profile and claim history of the car (older model, accident shortly after insurance taking effect and policy cancelled shortly thereafter for nonpayment on two separate occasions), several passengers in the car, no emergency room treatment for any passenger, several material discrepancies in the car’s occupants’ stories as to the number and gender of people in the car, where they were going, and the driver denying knowing the owner of the car[,]…[adverse vehicle] suffered only a ‘small scratch’ in the alleged accident…which allegedly resulted in over $15,000 in treatment for these assignors alone” (V.S. Medical Services, P.C. v. Allstate Ins. Co. at 343, 344). Such court reasoned that if an alleged collision was not a true accident, in another words, was an intentional act, “then it [was] outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (V.S. Medical Services, P.C. v. Allstate Ins. Co. at 341). In our instant case, Plaintiff submitted its medical bills to Defendant, therefore established its prima facie case of coverage. It is then Defendant’s burden to “rebut…the presumption of coverage” by establishing “that the alleged collision was intentionally caused” (V.S. Medical Services, P.C. v. Allstate Ins. Co. at 344). Here, Defendant formed its belief that the alleged collision at issue was not a covered incident based on the grounds that Assignor’s insured vehicle, which was previously damaged, intentionally hit the other vehicle, one of the passengers in the insured vehicle claimed another loss shortly before the alleged collision, Assignor’s answers to the EUO were vague, and it was difficult for Defendant to obtain statements from the passengers. As to the matter at hand, the passengers of the insured vehicle are not parties to the instant proceeding, this Court therefore will not address issues related to the passengers and is left to weigh the evidence presented by Defendant, based on the pretrial motion papers, to determine if Assignor’s car intentionally hit the other car and if Assignor’s EUO answers were so vague that a dismissal of Plaintiff’s complaint is warranted. Unlike the claim history of the car in V.S. Medical case, Defendant here failed to put forward evidence to demonstrate that Assignor took her insurance policy with Defendant shortly before the alleged incident and cancelled such insurance policy shortly after. In addition, it appears that there is a factual issue to be resolved in terms of how the alleged incident happened. Pursuant to the Adverse Driver, his vehicle “stopped…[at a stop sign, but] had inched further W/B to get a getter vantage point of traffic” when Assignor’s vehicle allegedly intentionally hit his vehicle; while pursuant to Assignor, Adverse Driver’s vehicle “suddenly collide[d] with…[her vehicle] while heading W/B…” (See Police Report). Furthermore, this Court finds that Assignor has answered most of the questions during the EUO as indicated by the Transcript. It is well established that a movant for a summary judgment must present prima facie admissible evidence proving that there is no material issue of fact and that the controversy 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]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York at 598). Here, this Court is not persuaded, based on the evidence presented by Defendant’s motion paper, that the alleged incident was staged, therefore, not an insured incident. Although Defendant argued that it did not believe that Assignor’s alleged injury arose out of an insured incident, it failed to present evidence or argument that Assignor had existing condition prior to the alleged incident and that her treatment received at Plaintiff’s facility did not arise out of the alleged incident at issue. In summary, Defendant failed to rebut the presumption of no-fault medical coverage. Defendant’s motion seeking to dismiss Plaintiff’s complaint based on its belief that the alleged injury did not arise out of an insured incident is denied without prejudice. 2. Assignor’s failure to subscribe the Transcript Defendant also moved to dismiss Plaintiff’s complaint because Assignor failed to subscribe the Transcript. Defendant argued that “[p]ursuant to the No-Fault regulations, ‘[u]pon request by the [insurance company], the eligible injured person or that person’s assignee or representative [should]: (b) as may reasonably be required submit to examinations under oath by any person named by the [insurance company] and subscribe the same[;]‘ [and that] [d]ue to the failure of…[Assignor] to return a signed and executed copy of the [T]ranscript, the [Assignor] [had] failed to comply with a condition precedent to coverage” (Affirmation at 7) citing DTG Operations, Inc., d/b/a Dollar Rent a Car v. Park Radiology, P.C., et al., 2011 NY Slip Op 32467(U), Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 (1997), Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D. 3d 559, 918 NYS2d 473 (1st Dept 2011), appeal denied, 17 NY3d 705, 929 NYS2d 96 (2011), and Skeaney v. Silver Beach Realty Corp., 10 AD2d 537, App. Div., 1st Dept (1960). Defendant further argued that because Assignor failed to return the signed transcript within 120 calendar days of request for subscription, Defendant “reserve[d] the right to deny coverage for failure to provide an executed transcript within the allotted time period” (See Demand for Subscription). In the instant case, Assignor submitted herself to an EUO, therefore, has satisfied one of the requirements of 11 NYCRR §65-1.1 which requires a no-fault insurance benefit claimant “submit to an examination under oath…and subscribed the same” (11 NYCRR §65-1.1). However, Assignor failed to sign the Transcript of the EUO. The issue before this Court is how late is too late for Assignor to sign the Transcript, or alternatively, until when can Assignor sign the Transcript in order to ensure that the complaint is not dismissed. Regulation 68-C states that “an insurer may issue a denial if, more than 120 calendar days after the initial request for verification, the applicant has not submitted all such verification under the applicant’s control or possession or written proof providing reasonable justification for the failure to comply” (11 NYCRR §65-3.8 [b] [3]), and that “[i]n the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (11 §NYCRR 65-3.8 [a] [1]). Here, Regulation 68-C provides a statutory ground for an insurer’s denial to a no-fault benefit due to an insured’s failure to submit to an EUO within 120 calendar days of first request; however, is silent as to if an insurer can issue a denial if an insured fails to return a signed transcript of an examination under oath within 120 calendar days of initial demand. Although Defendant reserved the right to deny Plaintiff’s claim if signed Transcript was not received within 120 calendar days of Demand for Subscription, it failed to present this Court with a copy of insurance contract outlining such term. It is undoubted that subscribing the Transcript is a condition precedent for Assignor/Plaintiff to receive no-fault benefit pursuant to 11 NYCRR §65-1.1; however, Defendant failed to provide this Court with evidence that the insurance contract between Assignor and Defendant had a provision mandating Assignor to subscribe the Transcript within 120 calendar days of first demand. In Skeaney v. Silver Beach Realty Corp., cited by Defendant, the insured did not return the executed transcript of examination under oath until the opposing party “obtained an order directing the [insured] to execute and return the transcript” (Skeaney v. Silver Beach Realty, Corp. at 537). Here, this Court finds that there is no basis to dismiss Plaintiff’s complaint, pretrial, because Assignor failed to sign the Transcript within 120 calendar days of demand. In another word, Defendant’s motion seeking to dismiss Plaintiff’s complaint, pretrial, due to Assignor’s failure to subscribe the Transcript, is premature when Defendant has not exhausted remedies provided law and absent evidence of insurance contract terms requiring the same. Defendant’s motion for summary judgement seeking to dismiss Plaintiff’s complaint because Assignor failed to sign the Transcript is denied without prejudice. IV. Order Accordingly, it is ORDERED that Defendant’s motion for summary judgement seeking to dismiss Plaintiff’s complaint is denied in its entirety, without opposition and without prejudice. This constitutes the DECISION and ORDER of the Court. Dated: October 8, 2020
