RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:Notice of Motion 1Notice of Cross-Motion 2Affirmation in Opposition 3DECISION AND ORDER In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant crossmoves for summary judgment seeking dismissal of the complaint. After oral argument, the Court sua sponte vacates order dated November 17, 2017, in place of the following.To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant, and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 A.D.3d 1168 [App. Div., 2d Dept., 2010]).In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly denied.The basis of Defendant’s cross motion is the failure of plaintiff’s assignor to attend IMES, which constitutes violation of a condition precedent to coverage. (See Stephen Fogel Psychological P.C. v. Progressive Casualty Ins. Co., 35 A.D. 3d 720 [2d Dept. 2006]). However, to establish proper denial, the insurer must inform the applicant at the time the IME is scheduled, that the applicant will be reimbursed for any lost earnings and reasonable transportation expenditure incurred in attending the IME (11 NYCRR 65-3.5 (e)). Thus, the insurer has the burden to demonstrate that the IME notice contained the requisite reimbursement language. (See Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Business v. Professional Health Radiology, 143 A.D.3d 536).In the case at bar, defendant failed to establish that the IME notice sufficiently apprised the assignor of such reimbursement. The reimbursement language merely recites the governing statute which states “…the insurer shall inform the applicant” of the right to reimbursement. The notice is devoid of a plain, affirmative statement, that the applicant has the right to receive such reimbursement.The reimbursement language is further obscured in very fine italicized print, which is inexplicably, smaller than the print used in the remainder of the letter, and potentially unreadable, thus facially deficient.Moreover, the presentation of the language in the notice, potentially creates ambiguity and confusion regarding the origin of the language. There is no explanation in the notice, that the reimbursement language is recitation of statute or a legal requirement. The only reference to the governing statute, is that the letter ‘e’, immediately appears before the reimbursement language, presumably signifying the end of the citation, 11 NYCRR 65-3.5 (e). However, said letter would be meaningless, if not perplexing, to applicants who lack the requisite legal training to decode its meaning.For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.Dated: July 6, 2018
