CHARLES DENG ACUPUNCTURE v. NATIONWIDE INS (2018)

RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit

Reply Affidavit

Defendant moves for summary judgment dismissing the complaint based on plaintiff's failure to attend an examination under oath. Plaintiff cross-moves for summary judgment in its favor, or in the alternative, for an order pursuant to CPLR 3212(g), finding that the bills at issue were mailed to and received by defendant.

Plaintiff failed to appear for an EUO, which defendant allegedly scheduled on three occasions through letters it electronically transmitted to Auto Injury Solutions (“AIS”), which AIS printed and mailed to the plaintiff. It is AIS's function to mail all documents it receives from the defendant to the proper recipient.

Defendant submits affidavits from its adjuster, Ms. Pupillo, to establish defendant's procedure for preparing and transmitting EUO requests and denials to AIS, and from Ms. Couler, an AIS employee, to show that AIS received and mailed those documents to the proper recipient.

Based on her review of the file, Ms. Pupillo states defendant sent three requests for an EUO, and a denial of the bills at issue to AIS, which AIS then printed and timely mailed the requests and denial to the plaintiff.

Having no personal knowledge of AIS's internal operation, to establish that AIS received and timely mailed the three EUO requests and denial to the plaintiff, Ms. Pupillo defers to the affidavit of an AIS employee, “Ms. Ulmer.”

The Ulmer's affidavit, however, is not annexed to the motion or referenced in defense counsel's affirmation. Instead, counsel identifies “Ms. Couler” whose affidavit is attached to the motion, as authority on AIS's mailing procedure.

Yet, the caption of Ms. Couler's annexed affidavit, incorrectly bears Titan Indemnity Co., as the defendant, thus, rendering the affidavit defective or irrelevant. Regardless, the wrongly named defendant in the Couler affidavit, and Ms. Pupillo' s exclusive identification of Ms. Ulmer, as the AIS employee with knowledge of the issues of the instant action, create a factual question as to the correct identity of the AIS affiant in this case.

Moreover, the conflicting identification of the AIS employee by counsel and Ms. Pupillo, undermines the credibility of Ms. Couler and Ms. Pupillo, as there exist factual issues as to whether either paid sufficient attention to her affidavit, reviewed and read the affidavit prior to signing it, and whether absent meticulous attention to detail, the affidavits would be reliable.

Moreover, if counsel is correct that Ms. Couler is the proper affiant, defendant's motion must be denied as there is no evidence that the documents which Ms. Couler states AIS mailed to the plaintiff, are the same documents which Ms. Pupillo states, are specified in Ms. Ulmer's affidavit, since there has been no established nexus between Ms. Pupillo and Couler. Conversely, if Ms. Ulmer is the proper affiant, as per Ms. Pupillo, defendant's failure to annex the Ulmer affidavit would mandate denial of its motion.

In view of defendant's conflicting identification of the proper AIS affiant in the instant motion, the wrongly named defendant in the Couler affidavit, and/or the omission of the Ulmer affidavit, if relevant, from the motion, defendant has failed to establish its burden that AIS received and mailed defendant's three EUO requests and denial to the plaintiff. Defendant's motion for summary judgment is therefore, denied regardless of the sufficiency of plaintiff's opposition (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 827 N.Y.S.2d 217, NY Slip Op 09604 [2d Dept 2006], affg 7 Misc 3d 18 [App Term, 2d Dept 2004] ).

The cross motion for granting plaintiff summary judgment is further denied, as plaintiff failed to establish that defendant's denials were conclusory, vague or otherwise defective (see Megacure Acupuncture P.C. v. Clarendon Natl. Ins. Co., 33 Misc 3d 141(A), 941 N.Y.S.2d 538, 2011 NY Slip Op 52199(U) [App Term, 2d, 11th & 13th Jud Dists, 2011] ). However, plaintiff's cross-motion pursuant to pursuant to CPLR 3212(g) is granted to the extent that the bills at issue were mailed to and received by defendant.

Odessa Kennedy, J.