Decided on October 27, 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
NO. 2014-2192 K C

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 19, 2014. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; 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]). As plaintiff failed to raise a triable issue of fact in opposition, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

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

Decided on October 27, 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
NO. 2014-2160 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Tasnim Hassanali, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 18, 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 on the ground that the action was premature because plaintiff had failed to provide requested verification.

As plaintiff argues, its affidavit in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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.

Decided on October 27, 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
NO. 2014-2139 K C

Gary Tsirelman, P.C. (Stefan Belinfanti, Esq.), for appellant. Law Offices of Lawrence R. Miles (Thomas Wolf, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 18, 2014. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied and the branch of plaintiff’s cross motion seeking summary judgment on that part of the complaint is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

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. By order entered July 18, 2014, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that defendant had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff appeals, as limited by its brief, from so much of the order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (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 reversed, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Decided on October 27, 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
NO. 2014-2046 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of James F. Sullivan, P.C. (James F. Sullivan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 25, 2014. 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. Defendant’s cross motion was based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations and on the ground that the amounts plaintiff sought exceeded the workers’ compensation fee schedule.

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 verification requests and denial of claim forms 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.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of 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, [*2]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.

Decided on October 27, 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
NO. 2014-1842 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 22, 2014. The order granted defendant’s motion for leave to reargue its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered May 23, 2014, and, upon reargument, in effect, vacated the order dated May 23, 2014, and thereupon granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered July 22, 2014 is reversed, with $30 costs, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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 defendant had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Defendant alleged that it had reduced the payment for CPT Code 20553 in accordance with the fee schedule, attaching the page of the fee schedule setting forth the appropriate relative value. However, it did not provide the conversion factor or provide an explanation for the reduction. By order entered May 23, 2014, the Civil Court denied defendant’s motion. Defendant subsequently moved for leave to reargue its prior motion and, upon reargument, for summary judgment dismissing the complaint. By order entered July 22, 2014, the Civil Court granted reargument and, upon reargument, in effect, vacated the May 23, 2014 order and granted defendant’s motion for summary judgment dismissing the complaint.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). Here, defendant did not allege that the Civil Court had overlooked or misapprehended any matters of fact or law in denying its motion for summary judgment. Rather, defendant’s attorney alleged, for the first [*2]time, that the fee schedule reduction had been based upon a calculation, and attached, for the first time, the page of the fee schedule setting forth the appropriate conversion factor. As this is not a proper basis for seeking leave to reargue, and defendant did not seek leave to renew its prior motion or provide an explanation for its failure to present the relevant facts on its prior motion (see CPLR 2221 [e] [3]), defendant’s motion for leave to reargue should have been denied.

Accordingly, the order entered July 22, 2014 is reversed, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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

Decided on October 27, 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
2014-1718 K C

Gary Tsirelman, P.C. (Joseph Padrucco, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 6, 2012. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 2, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 6, 2012 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount[s] to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

In view of the lack of an excusable default, it is unnecessary to consider whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see Levi v Levi, 46 AD3d 519 [2007]).

Accordingly, the order entered March 6, 2012 is affirmed.

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

Decided on October 27, 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
2014-1574 Q 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, Queens County (Richard G. Latin, J.), entered June 13, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the second, third, fourth, eighth and ninth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those 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 dismissing the complaint on various grounds. Insofar as is relevant to this appeal, by order entered June 13, 2014, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment on the second, third, fourth, eighth and ninth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Contrary to plaintiff’s sole argument with respect to those claims, the affirmation submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s contention as to the branch of its motion seeking summary judgment on the first cause of action is not properly before this court, as that branch of its motion remains pending and undecided (see Andreas v Catskill Mtn. Lodging, LLC, 60 AD3d 604 [2009]).

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

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

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Shawn T. Kelly, J.), entered August 17, 2016 after a nonjury trial, in favor of plaintiff in the sum of $2,126.66.

Per Curiam.

Judgment (Shawn T. Kelly, J.), entered August 17, 2016, reversed, with $30 costs, and judgment directed in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first- party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on April 12, 2011 were medically necessary. Plaintiff also stipulated to the expertise of Dr. Vincent Notabartolo, defendant’s peer review doctor.

At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.

Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139[A], 2016 NY Slip Op 51125[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2nd and 11th Jud Dists 2006]). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. [*2]Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142[A], 2011 NY Slip Op 52227[U] [App Term, 9th and 10th Jud Dists 2011]; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th and 10th Jud Dists 2010]). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

The Russell Friedman Law Group, Lake Success (Charles Horn of counsel), for appellant.

Thomas Torto, New York, respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 25, 2015, which, inter alia, granted plaintiffs’ motion for summary judgment declaring that defendant is not entitled to no-fault insurance benefits from them with respect to the 31 claims at issue, unanimously affirmed, with costs.

The refusal by defendant’s principal, Dr. Alexandre Scheer, to answer questions at an examination under oath (EUO) about his compliance with a consent agreement and order he had entered into with the Office of Professional Medical Conduct (OPMC) constituted a failure to comply with the request for an EUO, a condition precedent to coverage under the insurance policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]).

Defendant argues that plaintiffs’ questions about Scheer’s compliance with the OPMC order were improper because the order is confidential. Defendant relies on Public Health Law § 230 (17), which provides that where an investigation of suspected professional misconduct by a physician reveals evidence insufficient to constitute misconduct but reasonable cause exists to believe the physician is unable to practice medicine with reasonable skill and safety, the physician may be ordered to have his or her practice monitored by another physician approved by OPMC, and any such order shall be kept confidential. However, this provision is inapplicable. Scheer entered into a consent agreement and order in which he did not contest the charge of fraudulent practice of medicine brought against him and he agreed to a penalty of a 12-month suspension of his license to practice medicine, a stay of the suspension, and, pursuant to Public Health Law § 230-a (penalties for professional misconduct), a 60-month term of probation, of which a monitor of his practice was only one condition. Moreover, the consent agreement and order states expressly that it shall be a public document.

Defendant also argues that plaintiffs had no independent right to determine whether Scheer was in compliance with the consent agreement and order and that any determination by them of noncompliance would not render him “unlicensed” to practice medicine. This argument is unavailing. The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16 [a] [12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).

Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211 [e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not [*2]issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses. Concur—Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing and Singh, JJ. [Prior Case History: 50 Misc 3d 712.]

Decided on October 20, 2017

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