The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. 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 $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Nevertheless, plaintiff correctly argues that the record establishes that defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon plaintiff’s claim seeking $54.73 for services rendered on February 5, 2014 and billed under CPT code 99203 for the evaluation and management of a new patient. Likewise, defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover an additional $.63 for services rendered on February 27, 2014 because, as set forth in the affidavit defendant submitted [*2]from its certified professional coder, plaintiff was entitled to $16.70 for that date of service but defendant only paid $16.07.

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 $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied.

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov 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 March 9, 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 appear for duly scheduled examinations under oath (EUOs). By order entered March 9, 2015, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were the location of the office in which defendant generated the EUO scheduling letters, and the reasonableness of and justification for defendant’s EUO requests. Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claim (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant. However, a review of the record establishes that the Civil Court correctly determined that defendant had established the timely and proper mailing of the EUO scheduling [*2]letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. As a result, the Civil Court should have granted defendant’s motion for summary judgment. We note that neither defendant’s transmittal of the claims from one of its offices to another of its offices nor the location of the office within which the timely EUO scheduling letters were generated raises a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell 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 denied 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion finding, among other things, the existence of an issue of fact as to whether plaintiff had contacted defendant to reschedule the EUOs and, if so, whether defendant had responded to plaintiff.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that [*2]plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

719878/2018

Appearances of Counsel:
Attorney for Petitioner
Amos Weinberg, Esq.
Somerset Drive South
Great Neck NY 11020-1821
(516) 829-3900

Attorney for Respondent
Adam Waknine, Esq.
Peter c. Merani, PC.
1001 Avenue of the Americas, Suite 1800
New York, N.Y. 10018
(212) 629-9690

The following papers numbered EF 1-22 read on this petition by B.Z. Chiropractic, P.C., seeking a declaratory judgment to turn over monies from its bank account maintained outside of New York State with Bank of America, N.A. in such sum as is sufficient to satisfy the judgment, and determining that the judgment has and continues to accrue interest pursuant to the Insurance Department Regulations in effect at the time of the subject accident involving plaintiff’s assignor, in accordance with prior case law, at the rate of 2% per month compounded and Respondent’s Cross-Petition, seeking dismissal of this action based upon the doctrines of res judicata and collateral estoppel and sanctions for the filing of an allegedly frivolous action.

Notice of Petition, Petition, Exhibits EF 1-9

Notice of Cross-Petition, Petition, Exhibits EF 10-21

Affirmations in Opposition, Exhibits EF 22

Upon the foregoing papers, it is ordered that this petition and cross-petition are determined as follows:

The instant action arises out of an action filed in the Civil Court of the City of New York, Queens County, entitled B.Z. Chiropractic, P.C. a/a/o Tony Dance v. Allstate Insurance Company, Index No. 70935/00, which sought to recover first party No-Fault benefits for services rendered to defendant’s insured by plaintiff. Plaintiff was granted summary judgment in that action and on November 15, 2001, the Clerk of the Court entered judgment in favor of the plaintiff in the amount of $8,847.49. Plaintiff did not attempt to enforce said judgment until 2015, at which time defendant moved for a protective order and modification of the judgment pursuant to CPLR 5240. At that time, the amount of the judgment had grown to $227,060.57 ($8,847.49 plus 2% per month interest, compounded from November 15, 2001 through August 11, 2015). In an Order, dated November 16, 2015, the Civil Court found that plaintiff unreasonably allowed the compound interest to accrue and stayed said interest for the period of November 1, 2005 through June 19, 2015, the date that defendant received the plaintiff’s collections letter. Respondent issued checks in the amount of $22,999.70 in accordance with that decision and sought a satisfaction of judgment, moving by Order to Show Cause to compel same. Said motion was granted on July 7, 2016. Plaintiff appealed and on August 18, 2017, the Appellate Term, consolidated both appeals and reversed the lower court’s decision, finding that contrary to defendant’s assertions, plaintiff did not prevent defendant from timely paying the judgment. The Appellate Term added in an advisory capacity that the postjudgment rate of interest should be calculated pursuant to CPLR 5004 and not at the 2% per month rate provided for in 11 NYCRR 65-3.9(a). Thereafter, B.Z. Chiropractic moved before the Appellate Term seeking clarification of said decision or, in the alternative, for leave to appeal to the Appellate Division. The Appellate Term clarified that it was the Court’s intention to note that interest be awarded at the rate of 9% per year as in CPLR 5004, but that same is advisory and not appealable as of right or by permission.

The portion of Petitioner’s Petition seeking to turn over monies from its bank account maintained outside of New York State with Bank of America, N.A. in such sum as is sufficient to satisfy the judgment is denied in its entirety as Bank of America, N.A. is not a party to this action as required by CPLR §5225(b).

The portion of Petitioner’s Petition seeking a declaratory judgment on the proper interest rate which accrues on first party no-fault benefits after the entry of judgment is decided as follows: Pursuant to CPLR §5004, interest shall be at the rate of nine per centum per annum, except where otherwise provided by statute. Pursuant to 11 NYCRR 65-3.9(a), All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month. At the time that the underlying claims were filed, said interest accrued at a compound rate. It is well settled that “with respect to interest on first party benefits due under the no-fault statute,…the Insurance Law supersedes the provisions for interest contained in CPLR 5002, 5003 and 5004 (Gov’t Emp. Ins. Co. v. Lombino, 57 AD2d 957, 959, 394 N.Y.S.2d 898 [1977]) The policies of encouraging prompt payment of claims and reducing litigation outweigh limits on [*2]interest found elsewhere, See, Matter of McKenna v County of Nassau, Off. of County Attorney, 97 AD2d 440 (2d Dept 1983). The interest rate on No-Fault actions is intentionally punitive, with severe penalties in order to encourage prompt adjustment of claims. As such, the rate of interest is not reduced simply because the claim has been reduced to a judgment. While such claims remain overdue, they accrue interest at two percent per month. As such, plaintiff is entitled to a declaratory judgment recognizing same.

Respondent’s cross-petition seeking dismissal and sanctions for the filing of a frivolous action is denied in its entirety for the reasons above.

Dated: 2/25/2019
_________________________
Laurence L. Love, J.S.C.

Decided on February 22, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered August 11, 2016. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Plaintiff’s sole appellate contention with respect to defendant’s motion, “that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; 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])” (Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51523[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order is affirmed.

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