SCOB LLC AAO BOODHOO v. Liberty Mutual Ins. Co., Defendant(s). (2026)

I. Recitation, as required by CPLR § 2219(a), of the papers considered in review

of the Motion(s):

The following papers read herein: Numbered

Notice of Motion, Affidavit/Affirmation, and Exhibits 1

Affirmation in Opposition 2

II. Background

The matter at hand concerns a no-fault medical expenses incurred by Plaintiff, a healthcare provider arising from an automobile accident that occurred on January 26, 2023, where Plaintiff's assignor, E. Boodhoo ("Assignor") allegedly sustained injuries.

On December 18, 2024, Plaintiff commenced the instant action against Defendant by filing of a summons and complaint seeking to recover monetary damages in the amount of $5,971.11 plus statutory interest, statutory attorney's fees, costs and disbursements. Defendant joined the action by interposing an answer. On March 3, 2025, Defendant moved pursuant to CPLR 3212 by motion for summary judgment to dismiss the complaint for Plaintiff's alleged failure to appear for Independent Medical Examinations (hereinafter, "IME") ("Motion #1"). Plaintiff opposed. Motion #1 was submitted and subsequently assigned to this Court for determination.

III. Discussion

To prevail on a motion for summary judgment, the movant must show that "there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (see Dallas-Stephenson v Waisman, 39 AD3d 303, 306 [1st Dept 2007] quoting Winegrad v New York Univ Med Center, 64 NY2d 851, 853 [1985]; Ostrov v Rozbruch, 91 AD3d 147, 152 [1st Dept 2012]). The movant has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that there is no defense to the cause of action or that the cause of action or defense has no merit (CPLR 3212[b]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; see also Kershaw v Hospital for Special Surgery, 114 AD3d 75, 81-82 [1st Dept 2013]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman, 49 NY2d 557, 562 [1980]).

Only when the movant meets this burden, does the burden shift to the opposing party to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]; see Zuckerman, 49 NY2d 557, 562 [1980]; Kosson v Algaze, 84 NY2d 1019 [1995]; Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 128-129 [2000]).

Summary judgment is a drastic remedy and should not be granted where there are material and triable issues of fact present (see Stillman v Twentieth Century Fox F. Corp., 3 NY2d 395 [1957]; F. Garofalo Elec Co v NY Univ, 300 AD2d 186 [1st Dept 2002]). The evidence must be viewed in the light most favorable to the party opposing the motion, including resolving all reasonable inferences in that party's favor (see Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014]). Where different conclusions may reasonably be drawn from the evidence, the motion must be denied (see Sommer v Federal Signal Corp., 79 NY2d 540 [1992]; Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]).

It is well established that insurers must pay or deny No-Fault benefit claims "within thirty (30) calendar days after receipt of the proof of the claim" (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86).

11 NYCRR 65-3.5(c) states that "[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested." If an insurer seeks additional verification, the 30-day timeframe is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8[a][1]). "Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request 'any additional verification required by the insurer to establish proof of claim' " (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 quoting 11 NYCRR 65-3.5[b]). "At a minimum, if any requested verifications [have] not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested . At the same time the insurer shall inform the applicant and such person's attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested" (see 11 NYCRR 65-3.6[b]). Additionally, 11 NYCRR 65-3.2(c) dictates that insurance carriers not demand verification of facts unless there are good reasons to do so.

Where the additional verification sought is a medical examination, the insurer must schedule that examination to be held within 30 calendar days of receipt of the prescribed verification forms (see 11 NYCRR 65-3.5[d]). "[A]ppearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted" (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [1st Dept 2006] [internal citation omitted]).

Upon review of the submissions, the Court finds that Defendant failed to establish its prima facie burden to demonstrate that the IME scheduling letters were properly mailed and served on the Assignor. As contended by Plaintiff, it appears that the IME scheduling letters were addressed to the Assignor at "101-24 114th St Jamaica, NY 11419" (see Exhibit E) while form NF-2 at issue indicate that the Assignor's place of residence was located at "101-24 114th Street S Richmond Hill, NY 11419" (see Exhibit H). Defendant failed to address the said discrepancy in reply.

Moreover, Defendant failed to demonstrate that the Assignor failed to appear for the scheduled IMEs. The affirmation of Amit Khaneja, M.D. was insufficient to support Defendant's motion as it failed to include the entire penalty clause within CPLR 2106 (see Matter of Grandsard v Hutchison, 227 AD3d 491 [1st Dept 2024] [affirming motion court's decision denying and dismissing a defectively verified petition that simply affirmed under the penalty of perjury]).

CPLR 2106 mandates that affirmation made under the penalties of perjury "shall be substantially the following form: I affirm this ____ day of ________, ________ , under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law."

As the affirmation of Amit Khaneja, M.D. stated facts based on personal knowledge that the Assignor failed to appear for the scheduled IMEs, it was required to follow the above requirements set forth in CPLR 2106. But Defendant failed to do so. As Defendant failed to meet its prima facie burden, the burden does not shift to Plaintiff to submit proof in admissible form that establishes a triable issue of fact (CPLR 3212[b]).

Accordingly, Defendant's motion for summary judgment to dismiss Plaintiff's complaint is denied without prejudice.

IV. Order

Accordingly, it is hereby:

ORDERED that Defendant's Motion for summary judgment to dismiss Plaintiff's complaint is DENIED without prejudice.

This constitutes the DECISION and ORDER of the Court.

DATE July 13, 2026

HON. WENDY CHANGYONG LI, J.C.C.

Wendy Changyong Li, J.