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
2015-434 K C

Korsunskiy Legal Group, P.C. (Michael Hoenig, 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 (Theresa M. Ciccotto, J.), entered January 9, 2015. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $72.92, $397.30, $208.30, $540.15, and $271.11, and denied the branches of plaintiff’s cross motion seeking summary judgment upon those claims.

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 claims for $72.92, $397.30, $208.30, and $540.15 are denied, and the branches of plaintiff’s cross motion seeking summary judgment upon those claims 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 and plaintiff cross-moved for summary judgment. Plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $72.92, $397.30, $208.30, $540.15 and $271.11 on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and denied the branches of plaintiff’s cross motion seeking summary judgment upon those claims.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of the branch of its motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim seeking the sum of $271.11 was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claim form had been timely mailed with respect to that claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim.

However, defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff had been timely with respect to the claims seeking to recover the sums of $72.92, $397.30, $208.30, and $540.15, since defendant stated that the letter had been sent more than 30 days after defendant had received the claims (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, 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]). Moreover, defendant’s moving papers did not demonstrate that those claims had been timely denied (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, defendant failed to establish its entitlement to summary judgment with respect to those claims based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff established its prima facie case upon those claims (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), plaintiff is entitled to summary judgment upon those claims.

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 claims for $72.92, $397.30, $208.30, and $540.15 are denied, and the branches of plaintiff’s cross motion seeking summary judgment upon those claims are granted.

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
2015-416 K C

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Anna Rusanov, Esq., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 9, 2014. The order granted plaintiffs’ 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 the branch of plaintiffs’ motion seeking summary judgment upon so much of the complaint as sought to recover upon the claims submitted by plaintiff Vital Function Physician Services, P.C. is denied and the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that neither plaintiff had appeared for duly scheduled examinations under oath (EUOs). By order entered December 9, 2014, the Civil Court granted plaintiffs’ motion and denied defendant’s cross motion, finding that defendant’s denial of claim forms were improper since they did not set forth the dates of the EUOs for which plaintiffs had failed to appear.

Defendant’s cross motion established that EUO scheduling letters had been timely mailed [*2]to plaintiff Vital Function Physician Services, P.C. (Vital Function) (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that Vital Function had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that Vital Function had failed to comply with a condition precedent to coverage (see id. at 722). As defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) Vital Function’s claims on that ground, and Vital Function failed to raise a triable issue of fact in opposition to defendant’s cross motion, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims submitted by Vital Function should have been granted. We note that a denial of claim form based upon the failure to appear for scheduled EUOs need not set forth the dates of the EUOs (see New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co., 117 AD3d 1012 [2014] [insurer not required to set forth medical rationale in its denial of claim form]; see also New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 833 [2007] [“Had it been the intent of the Department of (Financial Services) to require the carrier to set forth a medical rationale in the prescribed denial of claim form . . ., it would have so provided”]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]).

However, contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment dismissing the claims sent by plaintiff JYW Medical, P.C. (JYW) based on JYW’s failure to appear for duly scheduled EUOs, as the record establishes that the first EUO scheduling letter sent to JYW had been sent more than 30 days after defendant had received JYW’s claims. As a result, the EUO scheduling letters were nullities as to those claims (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, 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, defendant has failed to demonstrate any basis to disturb the order insofar as it granted the branch of plaintiffs’ motion seeking summary judgment upon the claims submitted by JYW and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

Accordingly, the order is modified by providing that the branch of plaintiffs’ motion seeking summary judgment upon so much of the complaint as sought to recover upon the claims submitted by plaintiff Vital Function Physician Services, P.C. is denied and the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is granted.

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
2015-325 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered November 10, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,671.

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

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services at issue. Plaintiff moved to preclude defendant’s expert medical witness from testifying on the ground that his specialty is physical medicine and rehabilitation, while the author of the peer report is an orthopedic surgeon who stated in the peer review report that he was conducting the review from an orthopedic surgery standpoint. The court precluded the witness, granted plaintiff’s application for a directed verdict and awarded judgment in favor of plaintiff in the principal sum of $2,671.

An expert medical witness’s specialty goes to the weight to be given to the testimony and not to the witness’s competency to testify as an expert (see Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant’s witness should have been permitted to testify.

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 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
2015-315 Q C

The Rybak Firm, PLLC, (Joseph D. DePalma, 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 (Ulysses Bernard Leverett, J.), entered January 6, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through eighth 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 6, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through eighth causes of action on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q 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
2015-307 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William T. Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 8, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth and seventh through ninth 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 8, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth and seventh through ninth causes of action on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q 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
2015-304 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, 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 (Ulysses Bernard Leverett, J.), entered January 6, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 6, 2015 order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q 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
2015-303 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, 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 (Ulysses Bernard Leverett, J.), entered January 8, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 8, 2015 order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q 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
2015-289 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, 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 (Ulysses Bernard Leverett, J.), entered January 5, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 5, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct plaintiff’s EUOs on the scheduled dates, were 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 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 [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

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
2015-232 K C

Gary Tsirelman, P.C. (Joseph Padrucco, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Leslie A. Eyma, Jr., Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 27, 2014. 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 in support of its motion was sufficient to give rise to a presumption that the denial of claim form had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that it had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue.

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
2015-228 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Stern & Montana, LLP (Richard Montana, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 based upon plaintiff’s failure to appear for duly scheduled examinations under oath.

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]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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