PC BERTHELINA FENOLD CALIXTE PLAINTIFF v. MVAIC DEFENDANT (2026)

Recitation, as required by CPLR § 2219(a) of the papers considered in review of this Motion:

Papers

Notice of Motion and Affidavits Annexed 1

Answering Affidavits 2

Replying Affidavits 3

Upon the foregoing cited papers and after oral argument, Defendant's Motion for Summary Judgment is granted to the following extent:

Defendant failed to meet its burden for judgment as a matter of law for non-receipt of alleged bills: DOS 3/31/21, 5/19/21 and 6/23/21, each in the amount of $367.92. Defendant failed to provide affidavits of its business practices and procedures as to receipt of bills by fax transmission. Defendant is correct as it argues that it is not subject to 11 NYCRR 65-3.5 (k) requiring "Every insurer, which writes more than 1,000 motor vehicle liability policies in this state, shall establish procedures for the receipt of all claims, notices and verification, subject to this Part, by facsimile and/or electronic data transmittal." Nevertheless, Plaintiff proffered affidavits of fax transmissions of those purported bills to the conceded Defendant's fax number is sufficient to defeat Defendant's judgment as a matter of law, herein. It is of no moment that the bills subject to the defense of non-receipt were not appended thereto. The mere proffer by Plaintiff of its affidavits of bill submission by fax transmission established that Defendant received bill submissions by fax and thus was mandated to provide affidavits of its business practices and procedures as to faxed bill submissions and receipt. Or, alternatively, provide affidavits that Defendant business policy and procedure did not accept bill submissions by fax nor any other electronic vehicle but solely by mail. Defendant did neither. Moreover, where the defense is non-receipt of bill, it is incumbent on Defendant as movant to proffer affidavits of its exhaustive business practices and procedures for submission and receipt of bills in full by any and all methods, by mail, by any and all electronic vehicles, including fax transmissions. In this instant matter, Defendant failed to so do. Rather, Defendant solely proffered affidavit of receipt of bills by mail, but not by fax nor any other electronic means, which is not exhaustive. Thus, Defendant failed to meet its burden for judgment as a matter of law, obviating the shifting of the burden to Plaintiff to meet the burden of rebuttal.

Notably, Plaintiff's argument that its proffered affidavits of bill submission by fax proves that the bills at issue were submitted timely is rejected. Although its affidavits are sufficient to defeat Defendant's judgment as a matter of law, arguendo if there had been a shifting of the burden to rebut to the Plaintiff, its barebones affidavit without attachment of the actual bills at issue would have failed to satisfy its shifted burden. It is untenable to allege that the purported bills are being referenced within multi-paged faxed documents and intentionally omitted to include the actual bills at issue in any of its opposition papers. The bill is the sine quanon of any No-Fault case. The only entity that has access to the bill is the Plaintiff in a non-receipt of bill case, not the Defendant nor This Court. The burden is upon Plaintiff seeking reimbursement of fees for services to produce its bills at issue in a non-receipt case in its earliest of pleadings and not amorphously allude to bills cloaked in mystery. Such self-defeating litigation tactics and strategy provide legitimacy to Defendant's argument as to the non-existence of the alleged bills. Thus, these alleged three bills premised on non-receipt shall proceed to Trial as to the submission and receipt of the bills.

Further, in connection with the remaining bills at issue: the bill for DOS 10/5/20, Plaintiff acknowledges payment in the amount of $203.76, reducing the amount in dispute for that bill to $870.33. For bill for DOS 11/25/20, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute for that bill to $802.31. For bill for DOS 12/23/20, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. For bill for DOS 1/20/21, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. For bill for DOS 2/24/21, Plaintiff acknowledges payment in the amount of $87.80, reducing the amount in dispute to $280.12. As for the bill for DOS 11/2/20, the amount at issue remains $2,115.92. As to those six bills, both parties have established their respective prima facie cases. Through the rebuttal affidavit of Dr. Pervaiz Qureshi submitted by Plaintiff, a question of fact for Trial exists regarding the medical necessity of the services rendered for those six bills.

This constitutes the decision and order of the Court.

DATE August 18, 2026

HON. SANDRA E. ROPER

Sandra E. Roper, J.