Recitation of the papers considered in reviewing the underlying motion as required by CPLR §2219(a): Papers Numbered Notice of Motion and annexed exhibits and affidavits 1 Notice of Cross Motion, Affirmation in Opposition and affidavits 2 Affirmation in Opposition to Cross-Motion and Reply Affidavit 3 Reply Affidavit DECISION AND ORDER This no-fault cause of action arises from injuries allegedly sustained by Sherise Weaver (“Weaver”) in a three-car motor vehicle accident that occurred on October 12, 2016. The complaint alleges, in relevant part, that Weaver was a passenger in a motor vehicle driven and owned by Anthony Bratton (“Bratton”), a non-resident motorist. Weaver assigned her no-fault benefits to the Plaintiff, who provided necessary medical services and treatment to Weaver. The total value of said services and treatment was $3,372.35. Defendant, a no-fault insurer whose insurance policy allegedly covered the foregoing services and treatment, failed to pay plaintiff for said services and treatment after the bills were duly submitted. Thus, plaintiff seeks a judgment in the amount of $3,372.35, with interests, costs, disbursements, and attorneys’ fees. Defendant now moves pursuant to CPLR §3211(a)(1) or, in the alternative, CPLR §3212(b) for an order dismissing the complaint on the grounds that a Nationwide insurance policy was not in effect at the time of the accident. Plaintiff cross moves for an order, pursuant to CPLR §3212, granting it summary judgment on the grounds that the unpaid bills were timely submitted and opposing the Defendant’s summary judgment on the grounds that Defendant failed to establish that its policy was properly cancelled. The central issue is whether a viable policy was in effect on the date of the accident. Based on the following, Defendant’s motion to dismiss and for summary judgment is GRANTED and Plaintiff’s cross-motion for summary judgment is DENIED. A motion to dismiss a complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. (CPLR §3211(a)(1); see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; also see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106 [2018]). “To qualify as documentary evidence, the evidence ‘must be unambiguous and of undisputed authenticity’” (Matter of Koegel, 160 A.D.3d 11, 20-21, [2nd Dept 2018], lv dismissed 32 N.Y.3d 948 [2nd Dept 2018], quoting Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, [2nd Dept 2010]; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807 [2nd Dept 2017]). The defendant bears the burden of proving that the proffered documentary evidence conclusively refutes the plaintiff’s factual allegations (see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d at 105-106; Datena v. JP Morgan Chase Bank, 73 A.D.3d 683, 684 [2nd Dept 2010], lv denied 17 N.Y.3d 704 [2nd Dept 2011]). It is well settled that the proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, a movant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not (Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067 1068 [1979] [internal citations omitted]). Accordingly, if the opponent of a motion for summary judgment seeks to have the Court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in admissible form (Johnson v. Phillips, 261 AD2d 269, 270 [1st Dept 1999]). When deciding a summary judgment motion, the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (see Yaziciyan v. Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v. Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding, not issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8, 12 [1960]). The payment of no-fault benefits and claims are governed by 11 NYCRR 65-3.1, which states that “[t]he following are rules for the settlement of claims for first-party and additional first party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.” Pursuant to 11 NYCRR 65-2.4(a), entitlement to no-fault benefits requires compliance with all conditions precedent, one of which is that the eligible injured person or that person’s assignee or legal representative shall submit written proof of claim to the self-insurer, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered (11 NYCRR 65-2.4[c]). A medical provider’s failure to tender a claim and requisite proof to an insurer within 45 days after medical services were rendered authorizes an insurer to deny the claim (Kane v. Fiduciary Ins. Co. of Am., 114 AD3d 405, 405 [1st Dept 2014]; St. Barnabas Hosp. v. Penrac, Inc., 79 AD3d 733, 734 [2d Dept 2010]; Sunrise Acupuncture PC v. ELRAC, Inc., 52 Misc 3d 126[A] [App Term 2016]). Generally, once an insurer receives a claim from a medical provider, it must pay or deny same within 30 days thereof (11 NYCRR 65-3.8[c]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2d Dept 2010]; Nyack Hosp. v. Gen. Motors Acceptance Corp., 27 AD3d 96, 100 [2d Dept 2005], affd as mod and remanded, 8 NY3d 294 [2007]; Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999]). When an insurer fails to timely deny or pay a claim, as required by the statutory schedule, it is precluded from interposing a statutory exclusion defense (Presbyt. Hosp. in the City of New York v. Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v. Country-Wide Ins. Co., 295 AD2d 583, 584 [2d Dept 2002]; Mount Sinai Hosp. v. Triboro Coach Inc., 263 AD2d 11, 16 [2d Dept 1999]; Presbyt. Hosp. in City of New York v. Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]). The statutory period, however, can be extended by a proper request for verification (11 NYCRR 65-3.5[b] ["Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms."]), and when such a request is made, “an insurer is not obligated to pay or deny a claim until all demanded verification is provided” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 31 AD3d 512, 513 [2d Dept 2006]; see Hosp. for Joint Diseases v. Elrac, Inc., 11 AD3d 432, 434 [2d Dept 2004]; Nyack Hosp. at 101; New York Hosp. Med. Ctr. of Queens at 584; New York & Presbyt. Hosp. v. Am. Tr. Ins. Co., 287 AD2d 699, 700 [2d Dept 2001]). A party’s burden to establish that forms were mailed and therefore, presumed to have been received by another is established upon the tender of proof in admissible form “of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (New York and Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term 2007] [the law does not "requir[e] that an affidavit of mailing must state either that it was the affiant’s duty to ensure compliance with the insurer’s standard office practice or procedure with regard to mailing or that the affiant possessed personal knowledge of such compliance. Rather, as the Appellate Division has repeatedly noted, it is sufficient for the affiant to set forth that he or she possessed personal knowledge that the mailing occurred or describe the standard office practice or procedure used to ensure that items were properly addressed and mailed.”]). Thus, “[p]ersonal knowledge of [defendant's] documents, their history, or specific content are not necessarily required of a document custodian’ (Hosp. for Joint Diseases v. Elrac, Inc., 11 AD3d 432, 433 [2d Dept 2004]). The business record foundation only requires proof that (1) the record at issue be made in the regular course of business; (2) it is the regular course of business to make said record; and (3) the records were made contemporaneous with the events contained therein (CPLR §4518; People v. Kennedy, 68 NY2d 569, 579 [1986]). Accordingly, “[i]t is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity’s files” (DeLeon v. Port Auth. of New York and New Jersey, 306 AD2d 146 [1st Dept 2003]). In the instant motion, Defendant submits a copy of a cancellation notice for a Mississippi insurance policy, dated July 27, 2016, and an affidavit of merit by Tracey Wright (“Wright”), a property & casualty supervisor with Nationwide and its subsidiary, Victoria Fire & Casualty Company. Wright’s affidavit attests to the Defendant’s mailing procedures and that the basis of said affidavit is her personal knowledge and the Defendant’s business records, which are kept in the ordinary course of the Defendant’s business. Wright attests that her duties as supervisor “include performing underwriting, operational and administrative services”. Based on her review of Defendant’s business records, a cancellation notice was generated and mailed to the policyholder via USPS certified mail. The notice of cancellation, effective August 31, 2016, was issued to Anthony Bratton, as policyholder, for not having a valid Mississippi driver’s license. Notably, the covered policy period began on June 19, 2016. Defendant also submits an affidavit of merit by Jennifer Pupillo (“Pupillo”), a claims specialist for Nationwide. Pupillo’s affidavit is based on her personal knowledge and the Defendant’s business records, which are kept in the ordinary course of the Defendant’s business. Pupillo’s affidavit also attests to the Defendant’s mailing procedures and the receipt of the subject bills by the Defendant. Pupillo further states that she conducted a search of the Defendant’s business records after receiving the subject bills and discovered the cancellation of the subject policy. Pupillo immediately issued proper and timely denials for the subject bills. Lastly, Defendant submits an affidavit by Matthew Mclendon (“Mclendon”), an operation manager for Auto Injury Solutions, Inc. (“AIS”), which verifies claims for Nationwide. Mclendon’s affidavit is based on his personal knowledge and a search of AIS’s business records, which are kept in the ordinary course of the AIS’s business. Mclendon’s affidavit also attests to AIS’s mailing procedures and the receipt and verification of claims. Mclendon confirms that the claims at issue were received and denials were timely issued and mailed. In opposition to the Defendant’s motion, Plaintiff argues that Defendant failed to establish timely denials of the bills and, as such, is precluded from arguing that no insurance policy was in effect. Plaintiff also avers that there is a question of fact concerning the basis of the cancellation, to wit, Bratton’s failure to provide Defendant with his Mississippi driver license. In support of its cross-motion for summary judgment, Plaintiff submits the affidavit of Victoria Jaretsky to establish that the bills were timely submitted and said bills are overdue. Under Vehicle and Traffic Law §313(2)(a), the cancellation of an insurance policy is not effective as to third parties unless the cancellation is filed with the Commissioner of Motor Vehicles (see Vehicle and Traffic Law §313[3]; also see Matter of Progressive Northeastern Ins. Co. v. Barnes, 30 A.D.3d 523, 524 [2nd Dept 2006]; Matter of Chubb Group of Ins. Cos. v. Williams, 14 A.D.3d 561, 562 [2nd Dept 2005]). This case, however, concerns the cancellation of a Mississippi insurance policy. Under Mississippi law, cancellation of an insurance policy shall be effective if “the driver’s license or motor vehicle registration of the named insured…has been under suspension or revocation during the policy period.” Miss. Code Ann. §83-11-3(1)(b). Furthermore, pursuant to Mississippi law, the notice of cancellation of policy is not effective “unless mailed or delivered by the insurer to the named insured at least thirty (30) days prior to the effective date of cancellation…” Miss. Code Ann. §83-11-5. Notably, Mississippi law does not impose a notice requirement for policies “in effect less than sixty (60) days” Miss. Code Ann. §83-11-3(2). Furthermore, an insurance company does not have to prove actual notice by its insured in order to prevail on the issue of cancellation, under Mississippi law. The Mississippi Supreme Court annunciated that an insurance policy could be cancelled by mailing to the insured a notice of cancellation, and that “mailing of notice…shall be sufficient proof of notice.” (Employer’s Mutual Casualty Company v. Nosser, 168 So.2d 119 (Miss 1964). Based on the foregoing, the Court finds that Defendant had effectively cancelled the insured’s policy and mailed the nonparty insured a notice of cancellation. To be clear, Defendant was under no requirement to mail out the notice of cancellation to the insured under Mississippi law since the insurance policy was in effect for less than 60 days (Miss. Code Ann. §83-11-3[2]). Moreover, it would be an undue and unnecessary burden to require insurance companies with nonresident motorists to satisfy Vehicle and Traffic Law §313 for said cancellation to be effective. The Court further finds that Defendant has satisfied its prima facie entitlement to summary judgment by establishing that Defendant timely mailed denials for the bills at issue. Conversely, the Court finds Plaintiff’s arguments unavailing, bereft of merit and, consequently, insufficient to create a genuine issue of fact. A movant has the burden to set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law, whereupon the burden is shifted to the opposing party to come forward with proof, again in evidentiary form, to show the existence of genuine triable issues of fact. (Piccolo v. De Carlo, 90 AD2d 609 [3rd Dept 1982]). As for plaintiff’s cross motion for summary judgment, the Court finds no need to address the remaining arguments and/or merits of the cross-motion. For the reasons stated above, Plaintiff has failed to establish its prima facie entitlement to summary judgment as a matter of law. ACCORDINGLY, after consideration of the foregoing, the applicable law, a review of the Court file, and due deliberation; it is hereby: ORDERED, that Defendant’s motion to dismiss pursuant to CPLR §3211(a)(1) and motion for summary judgment is GRANTED in its entirety; and it is further ORDERED, that Plaintiff’s cross motion for summary judgment is DENIED; and it is further ORDERED, that Defendant serve a copy of this Decision and Order with Notice of Entry upon Plaintiff within thirty (30) days hereof. This constitutes the Decision and Order of the Court. Dated: September 15, 2021
