FILED: NEW YORK COUNTY CLERK 02/19/ :36 AM INDEX NO /2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 02/19/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Èncompass Insurance Company AFFIRMATION INOPPOSITION Plaintiff(s), -against- Beach Medical Rehab, P.C., et al., Return Date: Thu 03/01/2018 Index #: /16 Defendant(s). File #: I, Douglas Mace, an attorney duly admitted to practice law in the State of New York, and an associate with the Law Offices of Gary Tsirelman P.C., attorneys for Defendant herein, have reviewed the file maintained by this office in the instant action and submit the following affirmation under the penalties of perjury: ARGUMENT 1. Plaintiff did not issue its letters scheduling an examination under oath (EUO) of Beach Medical Rehab, P.C. (Beach), and Alpha Chiropractic, P.C.(Alpha), until February 23, As reflected in the chart contained within Plaintiff's counsel's affirmation, Plaintiff received six of Beach's bills and six of Alpha's bills more than thirty days before Plaintiff issued its initial request for an EUO. At the very least, summary judgment should be denied as to these bills. 2. The First Department has consistently held that regardless of the insurer's ability to prove nonappearance, its EUO requests must be in conformity with the timeframes set forth in the nofault regulations or the defense is precluded. Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op [1" [1 Dept 2018]. ("[a]lthough the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR (b) and 11 NYCRR (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy.. P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. ofn.y. v Manoo. 140 AD3d 468, 470 [Ist Dept 2016]).") 3. see also National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851[1" Dept., 2015]. (" ("Although the failure of a person eligible for no-fault benefits to appear for a properly ' noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp.. v Active Acfive Care Med.,tu.~ S Ilv Co> AD3d 411 [1st Dept 2015]; Allstate Allsra!e Ins, Co. Co, v Pierre I'ie> re, of 6

2 AD3d 618 [1st Dept 2014]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiffs summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR [b]) In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiffs motion for summary judgment was properly denied.") 4. The Second Department, likewise, requires Plaintiff to mail its scheduling letters in accordance with the no-fault regulations. Neptune Med Care, P.C. v Ameriprise Auto & Home Ins., 2015 [2d 11" NY Slip Op 51220(U) [2d, d' 13 Jud. Dists.]: Pursuant to the No-Fault Regulations, 'any additional verification required by the insurer to establish proof of claim shall be requested within 15 [NF-3]' business days of receipt of the (11 NYCRR [b] [emphasis added]). Defendant did not request that plaintiff appear for an EUO until more than 15 business days, and even more than 30 calendar days (see generally 11 NYCRR [1] [providing that deviations from the verification time frames reduce the 30 days to nnv pay or deny the claim by the same number of days that the request was late]), after it had received the bills at issue. Thus, even if if' the EUO scheduling letters were timely with respect to any other pending claims which may exist but are not before us, they were untimely with respect to the bills at issue. Indeed, this would be true even if defendant had tolled the 30-day period within which it was required to pay or deny the bills at issue, by timely requesting verification pursuant to 11 NYCRR (a), as the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. Consequently, the EUO scheduling letters were nullities with respect to the bills at issue and, therefore, defendant's motion for summary judgment was properly denied (see 0 & M Aded, P.C. v Travelers indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d, 11th 4 13th Jud Dists 2015]). 5. Further, the March 15, 2016 EUO transcript, upon which Plaintiff relies to prove nonappearance of Beach and Omega, indicates that the document is a "Proposed Examination Under Oath of Vincent Robinson," not of the two medical providers. 2 2 of 6

3 6. Plaintiff's "failure to meet its prima facie burden...warrant[s] the denial of the [plaintiff's] motion, regardless of the sufficiency of the [defendants'] opposition York Cent. Mut. Fire Ins. Co., 96 AD3d 715 papers." Garnar v New (2"d ( Dept. 2012) (internal citation and quotations omitted). See also Lopez v Stop.Wtop & Shop Supermarket Co., LLC, 84 AD3d 892 (2nd ( Dept. 2011) ("since the appellants failed to offer proof by a person with personal knowledge, they failed to establish [their prima facie case...accordingly, the Supreme Court correctly denied their ol' summary judgment motion without regard to the sufficiency of the opposition papers."), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 852 (1985). 7. Plaintiff's motion relies upon inadmissible and insufficient evidence. See CPLR 4518; See Hochhauser v. Electric Ins. Co., 46 AD3d 174 (2"d (2 Dept. 2007); Five Boro Psychological,Wervs., Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51057(U) (App. Term 2"d 2 11d' "'.iud. Jud. Dists., 2012); Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc3d 145(A) QAPP (App. Term, 2nd, I11th l ill 4C 13th l JUL JMU Jud. Dists., ) CV 2012). l I J 8. It is well settled that "(t)o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing 1 judgment in his favor...and he must do J ~ so by tender J of I J evidentiary proof I in form." admissible (internal quotations omitted) Friends of Animals v Associated Fur Mfi s. 46 N.Y.2d 1065 [1979]. See also Zuckerman v City of New York 49 N.Y.2d 557 [1980]; Zarr v Riccio 180 A.D.2d 734 [2nd [2 Dept. 1992]. proof' 9. "[A] deficiency of proof in moving papers cannot be cured by submitting evidentiary material in reply, the function of which is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new motion." grounds for the Henry v. Peguero, 72 A.D.3d 600, 602 (1st Dept 2010) (citations and quotations omitted); Allstate Ins. Co. v. Dawkins, 52 A.D.3d 826, 827 (2d Dept 2008). * * * WHEREFORE, it is respectfully requested that Plaintiff's Motion be denied; and that Defendant be awarded such other and further relief that this Court deems just and proper. Dated: Brooklyn, NY GARY ->i<a TSIRELMAN 02/02/2018 i' Attorneys for Defendant Beach Medical P.C. Rehab, P.C. 3 3 of 6

4 Alpha Chiropractic, P.C. Omega Acupuncture, P.C. Crystal Santomauro 129 Livingston Street Brooklyn, NY (718) Dc as Mace 4 of 6

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Encompass Insunmee Company, AFFIDAVIT OF SERVICE -against- Index #: /16 Beach Medical Rehab, P.C., et al. File #: Deponent, being duly sworn, deposes and says as follows under the penalty of perjury: I am not a party to the action and am over 18 years of age. On 02/02/2018 I served the annexed AFFIRMATION ;'t IN OPPOSITION thereof' by depositing a true copy thereof in a postpaid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within this State, addressed to the last known address of Plaintiff's Attorneys designated for this purpose, as indicated below: Bruno, Gerbino & Soriano, LLP 445 Broad Hollow Road, Suite 220 Melville, NY Deponent Kerisha Duncan Olga Golin Leonid Chernukhin _ Vittorio Virili The above affiant, whose identity is personally known to me based on reliable photographic identification, personally came before me and, after being duly sworn, testified that the contents of the within affidavit are true. In witness whereof, I have hereunto affixed my hand on 02/02/20I8. Notary.Vota)a Pubbe Alexander RUDENOK Bryan Steve BERRIO ZAPATA Ilya llya MURAFA ID No. 01RU ID No. 01BE ID No. 02MU Qualified in Kings County Qualified in Queens County Qualified in New York County Commission Expires 05/23/2019 Commission Expires 07/18/2020 Commission Expires 06/17/2021 Leonid CHERNUKHIN _Marilyn CEDENO ID No. 01CH ID No. 01CE Qualified in Kings County Qualified in Bronx County Commission Expires 11/1 4/2019 Commission Expires 08/08/ of 6

6 SUPREME COURT OF THE STATE OF NEW YORK Index #: /16 COUNTY OF NEW YORK File #: Encompass Insurance Company, Plaintiff(s), -against- t- AFFIRMATION IN OPPOSITION Beach Medical kebab, P.C., et al., Defendant(s). GARY TSIRELMAN P.C. Attorneysfor Defendants Beach Medical Rehab, P.C. Alpha Chiropractic, P.C. Omega Acupuncture, P.C. Crystal Santomauro 129 Livingston Street Brooklyn, NY (718) Pursuant to 22 NYCRR , the undersigned, an attorney duly admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: Brooklyn, NY Signature:... 02/02/2018 Signer's Name: Douglas Mace To: Bruno, Gerbino 8 Soriano, LLP 445 Broad Hollow Road, Suite 220 Melville, NY (631) of 6