Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1737 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 9, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,937.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,937.

For the reasons stated in Staten Is. Advanced Surgical Supply, as Assignee of Gu Zhang v GEICO Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1734 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1734 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 6, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,698.30.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment which, after a nonjury trial, awarded plaintiff the principal sum of $1,698.30.

At the trial in this case, which was limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]), defendant was prepared to proffer the testimony of a medical expert who had not written the peer review report upon which defendant’s denial of the claim at issue was based. As the author of the peer review report was not present to authenticate it, the Civil Court found that the report could not be admitted into evidence and, therefore, could not be used to limit defendant’s expert witness’s testimony to the basis for the denial as set forth in the report. Consequently, the Civil Court precluded defendant’s expert from testifying and granted plaintiff’s motion for a directed verdict.

Defendant’s expert medical witness should have been permitted to testify as to her opinion as to the lack of medical necessity of the supplies at issue, even though she was not the [*2]person who had prepared the peer review report (see Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, an appropriate objection by plaintiff was all that would have been needed in the event the testimony of defendant’s expert witness went beyond the scope of the peer review report (see Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1619 K C

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 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 an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012, as the EUO requests at issue had been sent more than 30 days after defendant had received those bills, and, therefore, the requests were nullities with respect to those bills (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing those portions of the complaint should have been denied.

With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1563 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 17, 2015. The order, insofar as appealed from, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.

Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff [*2]Apr. 1, 2013]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). As plaintiff failed to rebut defendant’s showing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1545 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor), entered May 6, 2015. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and had failed to provide verification which defendant had requested. By order entered May 6, 2015, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) without addressing defendant’s contention that it was entitled to summary judgment due to plaintiff’s failure to provide requested verification.

Plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to plaintiff’s failure to appear for EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled EUOs should have been denied.

As the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification was never addressed by the Civil Court, we remit the matter to the Civil Court to determine that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for EUOs is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1530 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 1, 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 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.

For the reasons stated in Masigla, as Assignee of Cadet, Daniel v Country Wide Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1528 Q C], decided herewith), the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1528 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 29, 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 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.

Contrary to plaintiff’s argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St.Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument with respect to defendant’s cross motion is not properly before this court, as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1242 K C

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York Kings County (Carol Ruth Feinman, J.), entered February 17, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had either paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule or had denied the claims on the ground of lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect pursuant to CPLR 3212 (g), that the only remaining issues for trial were medical necessity and the reduction of plaintiff’s claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

With respect to plaintiff’s claims seeking to recover for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the Civil Court should have granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims. Defendant’s contention with respect to the amount at issue on the two remaining claims lacks merit.

Defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1208 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 20, 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 of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

For the reasons stated in Renelique, as Assignee of Audley Noyan v Allstate Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1180 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1180 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 17, 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 of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 asserting its proffered defense—that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule—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 claim 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 a timely denial of claim that was 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 SOLOMON, JJ., concur.