Decided on December 19, 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
2015-1221 K C

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Nightingale Law, P.C. (Michael S. Nightingale, 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 20, 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 as premature on the ground that plaintiff had failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s only argument on appeal, the follow-up verification requests issued by defendant were proper (see 11 NYCRR 65-3.6 [b]). In any event, “[a]ny confusion on the part of [] plaintiff as to what was being sought should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

Accordingly, the order is affirmed.

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

Decided on December 19, 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
2015-1204 Q C

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Ilona Finkelshteyn, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument on appeal, its evidence was insufficient to establish, as a matter of law, that plaintiff’s assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff is not entitled to summary judgment, as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

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

Decided on December 19, 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
2015-1163 K C

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Nancy S. Linden (Nancy S. Linden, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s cross motion for summary judgment.

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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant’s motion and plaintiff’s cross motion, but held that the only issues for trial were whether defendant’s IME scheduling letters had been properly mailed and whether plaintiff’s assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

For the reasons stated in Acupuncture Choice, P.C., as Assignee of Equan Thomason v American Tr. Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1154 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 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
2015-1160 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 2, 2015. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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 from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

Contrary to plaintiff’s argument on appeal, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof it submitted 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 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
2015-1154 K C

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Jason Tenenbaum, 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 January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s cross motion for summary judgment.

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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant’s motion and plaintiff’s cross motion, but held that the only issues for trial were whether defendant’s IME scheduling letters had been properly “generated” and whether plaintiff’s assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

As the record contains denial of claims forms which timely denied plaintiff’s claims on the ground that plaintiff’s assignor did not appear for scheduled IMEs, and plaintiff failed to establish that its assignor had appeared for the IMEs or that the denials lacked merit as a matter of law, plaintiff failed to establish its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v [*2]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]).

Consequently, the Civil Court properly denied plaintiff’s cross motion. Plaintiff’s remaining contentions lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 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
2015-1116 K C

The Rybak Firm, PLLC (Damin J. Toell, 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 (Harriet L. Thompson, J.), entered March 30, 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 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—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 [*2]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 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.

Decided on December 19, 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
2015-1087 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered December 29, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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 from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

Contrary to plaintiff’s argument on appeal, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof it submitted 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 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
2015-1076 K C

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 12, 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 on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

Decided on December 19, 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
2015-1063 K C

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2015. The judgment, entered pursuant to an order of that court entered December 29, 2014 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,353.

ORDERED that, on the court’s own motion, the notice of appeal from the order entered December 29, 2014 is deemed a premature notice of appeal from the judgment entered January 23, 2015 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered December 29, 2014, in which the Civil Court denied defendant’s motion, finding that defendant was precluded from raising its defense that verification had not been provided because defendant had not timely denied plaintiff’s claims [*2]on that ground, and granted plaintiff’s cross motion for summary judgment. We deem the notice of appeal from the order entered December 29, 2014 to be a premature notice of appeal from a judgment which was subsequently entered on January 23, 2015 in favor of plaintiff in the principal sum of $2,353 (see CPLR 5520 [c]).

For the reasons stated in Irina Acupuncture, P.C., as Assignee of Zhane Darqan v New York Cent. Mut. Fire Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1018 K C], decided herewith), the judgment is reversed, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

Decided on December 19, 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
2015-1018 K C

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Law Office of Emilia I. Rutigliano (Marina Josovich, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 23, 2015. The judgment, entered pursuant to an order of that court entered December 29, 2014 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,673.11.

ORDERED that, on the court’s own motion, the notice of appeal from the order entered December 29, 2014 is deemed a premature notice of appeal from the judgment entered January 23, 2015 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered December 29, 2014, in which the Civil Court denied defendant’s motion, finding that defendant was precluded from raising its defense that verification had not been provided because defendant had not timely denied plaintiff’s claims [*2]on that ground, and granted plaintiff’s cross motion for summary judgment. We deem the notice of appeal from the order entered December 29, 2014 to be a premature notice of appeal from a judgment which was subsequently entered on January 23, 2015 in favor of plaintiff in the principal sum of $2,673.11 (see CPLR 5520 [c]).

Defendant demonstrated that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification. Thus, defendant demonstrated, prima facie, that the complaint is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, the motion should have been granted and plaintiff’s cross motion should have been denied.

Accordingly, the judgment is reversed, the order entered December 29, 2014 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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