Motion for Child Support in Qi Gong Wellness Acupuncture, P.C. AAO Fabian, Jidvett , v. Nationwide Ins.| Trellis.Law

On October 27, 2021 a Motion-Secondary was filed involving a dispute between Qi Gong Wellness Acupuncture, P.C. Aao Fabian, Jidvett ,, and Nationwide Ins., for No Fault in the District Court of Kings County.

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CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------X Index No.: 738438/20
Qi Gong Wellness Acupuncture, P.C.
a/a/o Fabian, Jidvett
AFFIRMATION IN
Plaintiff, SUPPORT OF CROSS-
MOTION FOR SUMMARY
-against- JUDGMENT AND IN
OPPOSITION TO MOTION
Nationwide Ins.
Returnable: 03/13/2023
Defendant.
------------------------------------------------------------------X

Oleg Rybak, Esq., an attorney duly admitted to the practice of law in the courts of the

state of New York, and not a party to this action, hereby affirms under the penalties of perjury

pursuant to CPLR § 2106 as follows, upon a review of the file maintained by this office in the

instant action and upon information and belief:

1. I am an attorney for Qi Gong Wellness Acupuncture, P.C. suing as assignee of

Fabian, Jidvett (sometimes referred to as “Plaintiff”), and as such, I am fully familiar with the

facts and circumstances of the present case.

2. I submit this affirmation along with enclosed affidavits, true copies and duplicates

of proofs in support of Qi Gong Wellness Acupuncture, P.C.’s cross-motion for an Order:

a. denying Nationwide Ins.’s motion for summary judgment (Dated

10/04/2021);

b. granting summary judgment to Qi Gong Wellness Acupuncture, P.C.

under CPLR §§ 3211(c) and/or 3212(a), or CPLR § 3212(g);

c. dismissing Nationwide Ins.’s defenses under CPLR § 3211(b) because the

alleged defenses are not stated or have no merit as a matter of law;

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d. and for such other and further relief as this Court may deem just and

proper.

3. I also submit this affirmation in opposition to defendant’s, Nationwide Ins.,

motion for summary judgment (sometimes referred to as “Motion”).

4. This action is brought by Qi Gong Wellness Acupuncture, P.C. against

Defendant, inter alia, for breach of contract for failure to timely and properly pay No-Fault

benefits and to recover the cost of medical services rendered by Qi Gong Wellness Acupuncture,

P.C. to, or for the benefit of, Fabian, Jidvett, statutory interest and statutory attorney fees.

STATEMENT OF FACTS

5. Fabian, Jidvett was injured in a motor vehicle accident on or about 2/12/2019

(hereinafter “Accident”). At the time of the Accident, upon information and belief, Defendant

was the No-Fault insurance carrier covering Fabian, Jidvett‘s injuries and responsible for

payment of any first party No-Fault benefits.

6. Upon information and belief, there was an existing insurance policy at the time of

the Accident that contained a Mandatory Personal Injury Protection Endorsement under which

Fabian, Jidvett was entitled to receive payment for medical service expenses sustained because

of the Accident.

7. After the Accident, upon information and belief, Defendant received a timely

notice of the Accident and of Fabian, Jidvett‘s injuries sustained in that Accident. After the

Accident was reported to Defendant, Defendant assigned a claim number 615202GI to this

matter. Within the statutory 30-day time period from the date of the Accident Qi Gong Wellness

Acupuncture, P.C. timely and properly mailed the statutory New York Motor Vehicle No-Fault

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Insurance Law Application for Motor Vehicle No-Fault Benefits form (“NF-2”) for Fabian,

Jidvett. Upon information and belief, Defendant received the NF-2.

8. Because of the accident and the injuries sustained therein, Fabian, Jidvett sought

medical services from Qi Gong Wellness Acupuncture, P.C. and persons acting under Qi Gong

Wellness Acupuncture, P.C.‘s direction, supervision and control provided the proper and

necessary medical services to Fabian, Jidvett for the injuries sustained in the Accident.

9. Fabian, Jidvett (sometimes referred to as an “Assignor”) executed a statutory New

York Motor Vehicle Insurance Law Assignment Benefits Form to Qi Gong Wellness

Acupuncture, P.C. (“Assignee”) giving the Assignee the right to recover directly from Defendant

all of the Assignor’s No-Fault benefits for sums billed by the Assignee for provided medical

services. A copy of the assignment of rights and benefits is annexed hereto as EXHIBIT 1. Qi

Gong Wellness Acupuncture, P.C. timely and properly furnished with its claim form(s) to

Defendant a properly executed assignment of rights and benefits.

10. Qi Gong Wellness Acupuncture, P.C. commenced this action by proper Service of

the Summons and Complaint in accordance with CPLR. A copy of Summons and Complaint are

annexed hereto as EXHIBIT 2.

11. Defendant submitted a late answer which was rejected by plaintiff and thus
issue was never joined. A copy of defendant’s late answer is attached as EXHIBIT 3. A
copy of Plaintiff’s rejection of untimely answer is annexed as EXHIBIT 4.
I. PLAINTIFF HAS ESTABLISHED ITS ENTITLEMENT TO SUMMARY
JUDGMENT.

12. To establish a prima facie showing of their entitlement to judgment as a matter of

law, a no-fault provider must submit proof that the statutory claim forms were mailed to and

received by the insurer and that the insurer failed to pay or deny the claims within 30 days. 1 “A

medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to

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reimbursement of overdue benefits when it proves that itsubmitted a completed claim form to

the insurer.”2

13. To establish entitlement to summary judgment on overdue no-fault benefits, the

medical provider is required to submit proof of mailing through evidence in admissible form.

Such proof may include the verification of treatment form and/or an affidavit from a person or

entity (1) with knowledge of the claim and how it was sent to the insurer or (2) who has relied

upon the forms in the performance of their business.

14. A proper showing of mailing by Plaintiff gives rise to a presumption of receipt,

and an insurer asserting it did not receive a claim bears a heavy burden to overcome that

presumption.3

15. Attached hereto as EXHIBIT 5 is the affidavit of Plaintiff, with accompanying

documentation, submitted to defendant. Plaintiff attests to the treatment of the assignor and

generation of the statutory claim forms. Plaintiff also describes its business practices and

policies for the mailing of the claim forms within the statutory time frames (within 45-days of

the date of service), and possesses personal knowledge that the claim forms at issue were

actually mailed to defendant, were received by defendant, and were not paid or denied within 30-

days of receipt and are overdue.

16. “As a matter of law, a no-fault plaintiff’s summary judgment showing is

extremely limited and is free of the normal summary judgment obligation to rebut defenses.” 4 In

this matter, defendant failed to timely and properly pay or deny present claims within the

1
Viviane Etienne Med. Care v. Country-Wide Ins. Co., 2015 NY Slip Op 04787 (NY June 10, 2015).
2
Viviane Etienne Med. Care v. Country-Wide Ins. Co., 2015 NY Slip Op 04787 at *5.
3
See e.g., Maldonado v. Steiner, 10 Misc3d 128(A) (App Term 2d Dept 2005).
4
Amaze Med. Supply v Eagle Ins. Co., 2 Misc3d 128(A) (App Term 2d Dept 2003).

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statutory thirty (30) day period as required by No-Fault Insurance Law and Regulations or to

take any action to properly toll the time constraints found in 11 NYCRR § 65-3.8(a).

17. Plaintiff has established its prima facie cause of action and is thus entitled to

summary judgment. Insofar as the Court finds that a question of fact exists as to an affirmative

defense asserted by the defendant, Plaintiff respectfully requests that the Court finds that any

triable issues of fact might exist that preclude the granting of summary judgment at this juncture,

it should be held, at a minimum, that Plaintiff established its prima facie case for all purposes in

this matter, and limit the issues for trial solely to those affirmative defenses preserved by

defendant in its denials.5

18. To the extent that Defendant asserts, as a basis to deny coverage, that Plaintiff or

Assignor has violated a condition precedent to coverage, or that Workers’ Compensation is

primary, Defendant failed to state so in a properly and timely issued NF-10 Denial form. In so

doing, the Defendant has waived this defense and is now precluded from raising it before this

Court.

19. CPLR 3212(g) provides: “If a motion for summary judgment is denied or is

granted in part, the court, by examining the papers before it and, in the discretion of the court, by

interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are

incontrovertible. It shall thereupon make an order specifying such facts and they shall be

deemed established for all purposes in the action. The court may make any order as may aid in

the disposition of the action.”

5
See CPLR 3212(g).

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20. In the alternative, it should be held for all purposes in this matter that Plaintiff

established the fact and amount of the loss sustained, and the submission of the claim forms to

defendant.6

II. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE
DENIED BECAUSE THERE ARE TRIABLE ISSUES OF FACT AS TO
WHETHER DEFENDANT TIMELY AND PROPERLY GENERATED
AND MAILED ITS DENIALS AND WHETHER DEFENDANT
SUBMITTED EVIDENCE IN ADMISSIBLE FORM TO SUPPORT THE
DEFENSES RAISED BY DEFENDANT IN ITS DENIALS.

21. Summary judgment is a drastic remedy that deprives a litigant of his or her day in

court and should thus only be employed when there is no doubt as to the absence of triable issues

of material fact.7 However, a motion for summary judgment will be granted if, upon all the

papers and proof submitted, the cause of action or defense is established sufficiently to warrant

directing judgment in favor of any party as a matter of law8 and the party opposing the motion

for summary judgment fails to produce evidentiary proof in admissible form sufficient to

establish the existence of material issues of fact. 9

22. The proponents of a motion for summary judgment must first demonstrate

entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any

material issues of fact.10 If the existence of an issue of fact is even arguable, summary

judgment must be denied.11 More than that, the attached papers on the defendant’s motion,

do not show that the assignor was in the course of his employment. None of the papers

6
See EMC Health Prods., Inc. v. Geico Ins. Co., 43 Misc3d 139(A) (App Term 2d Dept 2014); New York
Diagnostic Med. Care, P.C. v. Geico Gen. Ins. Co., 42 Misc3d 1 (App Term 2d Dept 2013); Complete Radiology,
P.C. v. GEICO Ins. Co., 38 Misc3d 140(A) (App Term 2d Dept 2013).
7
Kolivas v. Kirchoff, 14 AD3d 493, 787 N.Y.S.2d 392 (2d Dep’t, 2005); see also Andre v. Pomeroy, 35 NY2d 361,
364, 320 N.E.2d 853, 854 (1974).
8
CPLR 3212(b); Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967, 520 N.E.2d 512, 513 (1988);
Zuckerman v. City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 719-720 (1980).
9
Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 574 (1986), citing Zuckerman, 49 NY2d at 562.

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were signed by the assignor. The defendant attached an Uncertified police report. Most

importantly, both the NF-2 and the NF-3 were checked “No”, when asked if the assignor

was injured when she was working at her employment.

23. In addition, parties opposing a motion for summary judgment are entitled to every

favorable inference that may be drawn from the pleadings, affidavits and competing

contentions.12 Indeed, in deciding a motion for summary judgment, the court is required to

accept the opponents’ contentions as true and resolve all inferences in the manner most

favorable to opponents.13

24. Moreover, a party seeking summary judgment has the burden of establishing

prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the

merit of a claim or defense and not by simply pointing to gaps in the proof of an

opponent.14 “The burden on the insurer is a heavy one.” 15

25. Lastly, “[a] motion for summary judgment should not be granted where the

facts are in dispute, where conflicting inferences may be drawn from the evidence, or

10
Manicone v. City of New York, 75 AD3d 535, 537, 905 N.Y.S.2d 640, 642 (2d Dep’t, 2010), quoting Alvarez, 68
NY2d at 324; see also Zuckerman, 49 NY2d at 562; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 476
N.E.2d 642, 643 (1985).
11
Museums at Stony Brook v. Vil. of Patchogue Fire Dept., 146 AD2d 572, 536 N.Y.S.2d 177 (2d Dep’t, 1989).
12
Nicklas v. Tedlen Realty Corp., 305 AD2d 385, 759 N.Y.S.2d 171 (2d Dep’t 2003); see also Akseizer v. Kramer,
265 AD2d 356, 696 N.Y.S.2d 849 (2d Dep’t, 1999); Gibson v. AmeKevinan Export Isbrandtsen Lines, 125 AD2d
65, 74, 511 N.Y.S.2d 631, 636 (1d Dep’t, 1987); Strychalski v. Mekus, 54 AD2d 1068, 1069, 388 N.Y.S.2d 969, 970
(4th Dep’t, 1976); McLaughlin v. Thaima Realty Corp., 161 AD2d 383, 384, 555 N.Y.S.2d 125, 126 (1st Dep’t,
1990).
13
Pierre-Louis v. DeLonghi AmeKevina, Inc., 66 AD3d 859, 862, 887 N.Y.S.2d 628, 631 (2d Dep’t, 2009), citing
Nicklas, 305 AD2d at 385; Henderson v. City of New York, 178 AD2d 129, 130, 576 N.Y.S.2d 562, 563 (1st Dep’t,
1991); see also Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106, 850
N.E.2d 653, 658-659 (2006).
14
Nationwide Prop. Cas. v. Nestor, 6 AD3d 409, 410, 774 N.Y.S.2d 357, 357-358 (2d Dep’t, 2004); Katz v. PRO
Form Fitness, 3 AD3d 474, 475, 769 N.Y.S.2d 903, 903 (2d Dep’t, 2004); Kucera v. Waldbaums Supermarkets, 304
AD2d 531, 532, 758 N.Y.S.2d 133, 134 (2d Dep’t, 2003).
15
Fruit & Vegetable Supreme, Inc. v. Hartford Steam Boiler Inspection & Ins. Co., 28 Misc 3d 1128, 1131, 905
N.Y.S.2d 864, 868-869 (Sup. Ct. Kings Co. 2010).

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where there are issues of credibility.’”16 Here, as can be seen from Plaintiff’s exhibits annexed

to this affirmation in opposition, there are triable issues of fact not only as to Workers

compensation, but also as to defendant’s prime facie case.

26. The attorney affirmation submitted by defendant’s counsel and affidavit from

defendant’s Claims Representative only highlight the fact that there are triable issues of fact

sufficient to defeat defendant’s motion for summary judgment. Defendant through its counsel’s

affirmation, claim representative’s affidavit and managers of the mailing center affidavit is

unable to demonstrate that there are no triable issues of fact to entitle defendant to the relief

requested.

27. Defendant has abrogated its duty to pay Plaintiff’s claims during the statutory

period and now is attempting to escape its obligations by submitting attorney affirmation that is

incomplete, conclusory, contradictory, lacks personal knowledge and conclusory.

28. In same vein, the annexed affidavits from defendant’s claim representative and

mail clerk are insufficient to support defendant’s motion for summary judgment because they are

not based on personal knowledge, are vague, and conclusory.

29. Defendant also submitted an affidavit from its Claims Representative for

Nationwide, Lynn Ellis. that contains material errors and generalizes as to the contents of the

defendant’s file without having actual, personal knowledge of its contents, if any. Ms. Ellis

lacks first-hand and/or specific knowledge of the processing of Plaintiff’s claims, any alleged

mailings, or office policy and procedure that can be relied upon by the Court. Ms. Ellis cannot

identify the individual(s) responsible for processing and handling Plaintiff’s claims, and in so

16
Ruiz v. Griffin, 71 AD3d 1112, 1112, 898 N.Y.S.2d 590, 591 (2d Dep’t, 2010), quoting Scott v. Long Is. Power
Auth., 294 AD2d 348, 741 N.Y.S.2d 708 (2d Dep’t 2002); see also Benetatos v. Comerford, 78 AD3d 750, 751-752,
911 N.Y.S.2d 155, 155-156 (2d Dep’t, 2010); Lopez v Beltre, 59 AD3d 683, 685, 873 N.Y.S.2d 726, 728 (2d Dep’t
2009); Baker v. D.J. Stapleton, Inc., 43 AD3d 839, 841 N.Y.S.2d 382 (2d Dep’t, 2007).

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doing, whether that individual(s) complied with office practice and procedure. Therefore, the

Court should reject Ms. Ellis’s affidavit as unreliable and inadmissible.

30. Defendant’s Claims Representative’s affidavit is too conclusory and is

insufficient to establish accurate, proper and timely generation and mailing of the denials. In

their current form, defendant’s affirmation and affidavits submitted in support of defendant’s

motion cannot be relied for their veracity and should be disregarded because the submitted

affirmation and affidavits are insufficient to support defendant’s motion. 17 In addition, the

alleged denial to defendant’s motion is insufficient as a matter of law.

31. Defendant’s attorney affirmation and the attached exhibits are insufficient as a

matter of law to support defendant’s demand for summary judgment. In context of no-fault

litigation, the leading case is Dan Medical, P.C. v. NY Central Mutual Fire Ins. Co. 18 Under

Dan Medical, to establish its prima facie case when moving for summary judgment defendant

must support its motion with an affidavit of a person having personal knowledge of defendant’s

practices and procedures to lay the foundation for its exhibits as business records. 19

32. Here, the submitted affirmation and affidavits by defendant are insufficient to

support Defendant’s motion because there the affirmation and affidavit are not based on personal

knowledge and are insufficient to establish receipt and processing of the bills by defendant, as

well as timely, accurate and proper generation and mailing of the denials by defendant and all of

the supporting documents.

33. Defendant, as the proponent of the motion for summary judgment motion, has the

burden of showing their prima facie entitlement to judgment as a matter of law by:

17
See CPLR § 3212(b); CPLR § 4518; Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 729
N.Y.S.2d 776 (2d Dep’t. 2001); See also Central Gen. Hosp. v. Chubb Group of Ins. Co., 90 N.Y.2d 195, 681
N.E.2d 413, 659 N.Y.S.2d 246 (1997).
18
14 Misc 3d 44, 829 N.Y.S.2d 404 (2d Dep’t App Term 2006).

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a. submitting evidentiary proof that the prescribed statutory billing forms were

received;

b. that the information in the prescribed statutory denials and explanation of benefits

is accurate;

c. that the prescribed statutory denials and explanation of medical bill payment were

properly and timely denied;

d. that the bills were denied based for a specific and accurate reason;

e. accurately document and explain in detail reduction in payment;

f. that all verification requests and denials were timely mailed, and

g. that payment of no-fault benefits is not overdue.

34. In this case, defendant failed to submit a proper affidavit describing all of the

above listed procedures to establish as a matter of law that the subject verification requests, if

any, denials and explanation of medical bill payment were timely, properly and accurately

generated, addressed and mailed and list a specific reason for the denial.

35. Defendant’s affidavits state that their personal knowledge is based upon electronic

file and computer records without establishing the reliability of these records and establishing a

business record foundation for their use. Defendant admits that the “statements” are merely

“reproductions” of parts of an “electronic file.” This is a confirmation that defendant has no

personal knowledge. This is not only insufficient but also overlooks the “Business Record Rule”

as well as several other sections of law.

36. As found in American Express Centurion Bank v. Badalamenti,20 “[Defendant’s]

motion must be denied. Without a proper foundation for the submission of the “reproductions”

19
Id. at 404.
20
2010 NY Slip Op 52238U, 30 Misc 3d 1201A (Dist. Ct. Nassau Co. 2010) (Ciaffa, J.).

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in question, [Defendant] has not met its [] burden of proof [], requiring denial of its request for

summary determination of its damages.

37. In American Express Centurion Bank v. Badalamenti,21 the Court looked to

several sections of the law: CPLR § 4518, CPLR § 4539, State Technology Law § 302 and State

Technology Law § 306. Read together, they set forth the foundational requirements for the

submission of “evidentiary proof in admissible form” in a case where the “evidence” of

indebtedness is maintained only in an electronic format.

38. CPLR § 4518 -- the “Business Record Rule” -- sets forth the basic requirements

for the introduction of an electronic business record into evidence. “An electronic record, as

defined in section three hundred two of the state technology law, used or stored as such a

memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate

representation of such electronic record. The court may consider the method or manner by which

the electronic record was stored, maintained or retrieved in determining whether the exhibit is a

true and accurate representation of such electronic record.” 22 Such a record, of course, must also

meet the test for admissibility of business records generally: “any writing or record, whether in

the form of an entry in a book or otherwise, made as a memorandum of record of any act,

transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction,

occurrence or event, if the judge finds that it was made in the regular course of any business and

that it was the regular course of such business to make it,at the time of the act, transaction,

occurrence or event, or within a reasonable time thereafter.” 23

39. State Technology Law § 302 defines “Electronic record” as “information,

evidencing any act, transaction, occurrence, event, or other activity, produced or stored by

21
Id.
22
CPLR § 4518(a).

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electronic means and capable of being accurately reproduced in forms perceptible by human

sensory capabilities.”

40. State Technology Law § 306 goes on to add additional requirements under the

heading “Admissibility into evidence.” “In any legal proceeding where the provisions of the civil

practice law and rules are applicable, an electronic record or electronic signature may be

admitted into evidence pursuant to the provisions of article forty-five of the civil practice law

and rules including, but not limited to section four thousand five hundred thirty-nine of such law

and rules.”

41. Finally, CPLR § 4539(b) includes the following language: “A reproduction

created by any process which stores an image of any writing, entry, print or representation and

which does not permit additions, deletions, or changes without leaving a record of such

additions, deletions, or changes, when authenticated by competent testimony or affidavit which

shall include the manner or method by which tampering or degradation of the reproduction is

prevented, shall be as admissible in evidence as the original.”

42. As one leading treatise explains: “The purpose of CPLR § 4539(b) is to

acknowledge and accept existing and future technologies which accomplish image storage by a

variety of different methods, while also recognizing that some of those technologies permit

tampering with stored images in ways that were not feasible when photocopies or microfilm

images were involved . . . .”24 Stated another way, electronically stored images “cannot qualify

as a reproduction of an original made in the ordinary course of business unless the enterprise in

23
Id.
24
Weinstein-Korn-Zaragoza, New York Civil Practice, ¶ 4539.11.

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question has incorporated into its technology security measures sufficient to guarantee that any

such alteration leaves an audit trail which at least indicates that a change has been made.” 25

43. Even if defendant can address the issue of electronic records, which they do not,

defendant still must establish timely and proper generation and mailing of the denials. Mailing

can be established in two ways: “[t]he presumption may be created by either proof of actual

mailing or proof of a standard office practice or procedure designed to ensure that items are

properly addressed and mailed.”26

44. Here, defendant cannot establish a presumption of mailing because affidavit from

defendant’s claim representative is insufficient because it lacks direct firsthand knowledge or

describe defendant’s office practice and procedure for with sufficient accuracy to establish

reliability for mailing of the denials. 27

45. In the alternative, if this Court does not grant defendant’s motion for summary

judgment, this Court pursuant to CPLR § 3212(g) should make a finding and deem it fact

established for trial that Plaintiff has established its prima facie case for all causes of action in

this matter by submitting timely and proper claim forms and all supporting documents in

admissible form. And limit for trial purposes only as the sole issues to be determined at trial the

issues of medical necessity of the underlying services.

46. Therefore, defendant has failed to establish its entitlement for summary judgment

or raise questions of material fact by submitting defective denials and an affirmation from

defendant’s counsel and an affidavit from a person lacking personal knowledge of the facts of

the case with respect to receipt of the bills, timely, proper, accurate mailing of the denials,

supporting documents and whether the issued denials were based on valid grounds.

25
Id.
26
Residential Holding Corp. v. Scottsdale Ins. Co., supra.

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III. DEFENDANT HAS FAILED TO ESTABLISH THAT THIS CLAIM IS
COVERED BY WORKERS’ COMPENSATION; OTHERWISE,
WORKERS’ COMPENSATION IS PRIMARY AND NO FAULT
COVERS THE REMAINDER, SO DISMISSAL IS INAPPROPRIATE.

47. Defendant’s motion is premised on the vague, conclusory, and self-serving

allegation that the Assignor is covered by Workers’ Compensation insurance for the underlying

motor vehicle accident, and therefore that the Workers’ Compensation Board has exclusive

jurisdiction over this matter. However, defendant failed to prove that the assignor was working

during the same time she was in the accident. A determination from the Workers’

Compensation Board stated “Claimant testified that she was not working at the time of her

accident” Please, see EXHIBIT “6”, the decision made from the Workers’ Compensation Board

(WCB Case # G258 1940), which clearly shows that Worker’s compensation does not cover

assignors claims. For the reasons stated below, defendant has failed to establish that the

Assignor may be covered by Workers’ Compensation insurance with admissible evidence.

48. Moreover, Defendant attempts to avoid the payment on the bills alleging that the

Plaintiff was not eligible for no fault benefits. Defendant relies on one EUO testimony of the

assignor which was conducted on 04/23/2019.

49. However, defendant cannot use the EUO transcript in support of its motion,

because this transcript is not in admissible form.

50. It is a well-established law in the courts of state of New York that in order to use a

transcript that is not signed by the witness, it is the burden of the party proffering the transcript to

show that the transcript was sent to the witness to be reviewed for any corrections, and that

sufficient time to do so has passed (CPRL 3116(a)).

27
See Hospital for Joint Diseases v. Nationwide Mut. Ins. Co., 284 A.D.2d 374; 726 N.Y.S.2d 443 (2d Dept 2001).

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51. In Pathmark Graphics Inc. v. J.M. Fienlds, Inc.,28 the court held that “unsigned

depositions do not suffice as a proof requisite to defeat a motion for summary judgment.” In

Krupp v. Aetna Life & Casualty Co., the Second Department held that the above rule applies

equally to EUO transcripts. Krupp v. Aetna Life & Casualty Co., 103 A.D.2d 252; 479 N.Y.S.2d

992 (2nd Dep’t 1984).

52. The EUO transcript, which defendant annexed to itsmotion is not signed. Also,

defendant did not sufficiently establish that the transcript was sent to the witness to be reviewed

and corrected.

53. Accordingly, in the instant case, defendant may not rely on that transcript to

establish its defenses. See also AT Medical P.C. v. Utica Mutual Ins. Co., 11 Misc.3d 142A; 819

N.Y.S.2d 846 (2nd Dep’t 2006); PSG Psychological v. State Farm Ins. Co., 6 Misc.3d 1002A;

800 N.Y.S.2d 355.

54. Therefore, since defendant fails to set forth any other evidence in support of their

defense, defendant’s summary judgment motion is unsupported and must be denied.

55. However, if this court finds defendant’s EUO transcript admissible, the statements

contained therein are still insufficient to support Defendant’s motion.

56. Defendant has not established that the underlying accident took place within

Assignor’s scope of employment. Defendant contends that the underlying insurance policy only

provides Workers Compensation benefits and not no-fault coverage. However, as a preliminary

matter, Defendant has failed to attach a certified and admissible copy of the policy that covered

the vehicle in question or a certified and admissible copy of the police report to otherwise

demonstrate that the vehicle in question was covered by a Workers Compensation policy, or that

the Assignor was operating the vehicle in the course of his employment and not traveling to or

28
Pathmark Graphics Inc. v. J.M. Fienlds, Inc., 53 A.D.2d 531; 384 N.Y.S.2d 177 (1st Dept 1976),

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from work or was off duty. None of defendant’s affiants laid a proper foundation for the

admission of the alleged policy.

57. The courts have held that examining the insurance policy is critical in order to

determine if the assignor was in fact considered an “employee” that would be subject to

Worker’s Compensation Benefits.29

58. As the Court of Appeals has held, “[t]he ‘oft-mentioned and much misunderstood’

best evidence rule simply requires the production of an original writing where its contents are in

dispute and sought to be proven.”30 Simply stated, since Defendant wishes to prove the contents

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August 09, 2022

Case Filing Date

October 27, 2021

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Motion-Secondary: Qi Gong Wellness Acupuncture, P.C. AAO Fabian, Jidvett , v. Nationwide Ins.

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