Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50832(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50832(U) [59 Misc 3d 150(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2639 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 30, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50831(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50831(U) [59 Misc 3d 150(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2632 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50830(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Sweetbaum & Sweetbaum, Esqs. (Joel A. Sweetbaum of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 24, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers’ compensation fee schedule.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50829(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered September 21, 2015. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action are denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers’ compensation fee schedule.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from [*2]asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the second through fifth causes of action.
However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, the branches of plaintiff’s motion seeking summary judgment on the second through fifth causes of action were properly denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action are denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50828(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50828(U) [59 Misc 3d 150(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2424 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 50827(U))
| Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 50827(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2383 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 16, 2015. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s cross motion which had sought summary judgment dismissing the fourth cause of action based upon a lack of medical necessity.
Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50825(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50825(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2369 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 15, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50824(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50824(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2368 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 15, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50822(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50822(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2280 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (— Misc 3d &mdash, 2018 NY Slip Op — [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))
| Compas v Travelers Ins. Co. |
| 2018 NY Slip Op 50821(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2227 Q C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William T. Angstreich of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 14, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who had been present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018