Decided on November 30, 2018

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 (Sharon A. Brennan 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 December 22, 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 on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “C” were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In view of the foregoing, and since plaintiff’s remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.

Accordingly, the order is affirmed.

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

Decided on November 30, 2018

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

Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 4, 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment. This case involves 17 bills which had been received by defendant between November 18, 2011 and July 20, 2012.

Plaintiff does not dispute that a letter scheduling its EUO was mailed to plaintiff on December 13, 2011, or that a follow-up scheduling letter was timely mailed. Contrary to plaintiff’s main contention on appeal, once that initial letter was mailed to plaintiff, the toll of defendant’s time to pay or deny plaintiff’s claims applied to any claim form submitted by plaintiff for the same assignor and accident subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), in this case, the four claim forms defendant received on December 14, [*2]2011.

While plaintiff notes that the first EUO scheduling letter was mailed 16 business days after defendant’s receipt of two bills on November 18, 2011, which is one day later than is set forth in the Insurance Department Regulations (11 NYCRR 65-3.5 [b]) for the time to seek verification, it fails to explain why this should result in even the partial denial of defendant’s motion, since the denial of claim forms with respect to those two bills were mailed 21 days after plaintiff’s failure to appear for the second EUO (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

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

Peter C. Merani, P.C. (Eric M. Wahrburg and Adam Kass of counsel), for appellant. Israel, Israel & Purdy, LLP (Ryan B. Berry of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), dated March 1, 2017. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to modify a judgment of that court entered July 29, 2015, following a nonjury trial, awarding plaintiff the principal sum of $3,723.72.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, defendant asserted, as an affirmative defense, that the insurance policy limits had been exhausted. At a nonjury trial, the District Court (Scott Fairgrieve, J.) noted that the parties had stipulated to, among other things, defendant’s timely denial of the claim at issue. Following the trial, a judgment was entered on July 29, 2015 awarding plaintiff the principal sum of $3,723.72. On November 7, 2016, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, among others, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the District Court dated March 1, 2017 as denied the branch of defendant’s motion seeking to modify the judgment, citing CPLR 5240 as authority for its requested relief.

At the outset, we note that, although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not [*2]precluded (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see Hospital for Joint Diseases v Hertz Corp., 22 AD3d 724 [2005]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue had been deemed complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C., 55 Misc 3d 44). Consequently, defendant has established no basis to modify the judgment.

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

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

Decided on November 29, 2018

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered June 1, 2018, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered June 1, 2018, insofar as appealed, affirmed, with $10 costs.

This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. Defendant’s conflicting and contradictory submissions, regarding the amount it purportedly paid on the claims and when, create rather than eliminate triable issues as to whether the claims were timely and properly denied in accordance with the applicable fee schedules (see Lotus Acupuncture PC v Hereford Ins. Co., 58 Misc 3d 148[A], 2018 NY Slip Op 50057[U] [App Term 1st Dept 2018]; Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on November 29, 2018

Defendant appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered December 18, 2017, that denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered December 18, 2017, insofar as appealed from, reversed, with $10 costs, motion granted in its entirety, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on an affirmed independent examination report [IME] of its examining orthopedist, which set forth a factual basis and medical rationale for his stated conclusion that the assignor’s injuries were resolved and that there was no need for further treatment (see Mingmen Acupuncture Servs., PC v Global Liberty Ins. Co. of NY, 61 Misc 3d 128[A], 2018 NY Slip Op 51358[U] [App Term, 1st Dept 2018]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]).

In opposition, the medical affirmation submitted by plaintiff failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining physician (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on November 23, 2018

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

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered August 16, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,184.19.

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 in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $3,184.19.

For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K 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 ELLIOT, JJ., concur.

Decided on November 23, 2018

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

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Fuld & Karp, P.C. (Cheryl Scher of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 17, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,791.73.

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 in question. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $1,791.73.

For the reasons stated in Nova Chiropractic Servs., P.C., as Assignee of Miguel A. Vizcaino v GEICO Gen. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-1054 K 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 ELLIOT, JJ., concur.