Decided on August 11, 2017

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

Decided on August 11, 2017

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

Decided on August 11, 2017

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

Decided on August 11, 2017

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

Decided on August 11, 2017

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

Decided on August 11, 2017

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

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. McDonnell & Adels, P.C. (Linda A. Mule, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered September 5, 2013. The order, insofar as appealed from, granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, to the extent of compelling plaintiff to respond to defendant’s discovery demands and to produce plaintiff’s owner for an examination before trial, and 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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s cross motion for summary judgment and granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s notice for discovery and inspection, and its “demand for verified written interrogatories,” to the extent of compelling plaintiff to provide defendant with, among other things, verified responses to defendant’s discovery demands, including “W-2(s), 1099(s) & 941 tax forms; office records, bank records, management, billing & rental agreements; annual salary of owner and employee; [and] proof of payment regarding use of office space,” and to produce plaintiff’s owner for an examination before trial.

Plaintiff argues that defendant is not entitled to the discovery ordered by the Civil Court. However, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d [*2]136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are considered palpably improper and may not be discoverable, notwithstanding the fact that plaintiff did not specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC, 11 Misc 3d 71), upon a review of the record, we find that the discovery at issue is not palpably improper (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

In view of the foregoing, plaintiff’s contention that it is entitled to summary judgment lacks merit because, as the Civil Court noted, plaintiff’s motion is premature (see CPLR 3212 [f]; All Boro Psychological Servs., 39 Misc 3d 9).

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

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

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Gullo & Associates, LLP ( Cristina Carollo, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 27, 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 modified by providing that defendant’s 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Here, the affirmed report of the doctor who had performed an independent medical examination (IME) of the assignor contained contradictory statements (see e.g. Black v County of Dutchess, 87 AD3d 1097 [2011]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]) as to whether the injury to plaintiff’s assignor’s right knee was “partially causally related to” the accident at issue or caused by “preexisting degenerative changes.” Furthermore, an MRI report that was reviewed by the IME doctor did not set forth an impression of degenerative changes. Nor did the IME doctor indicate that he had examined an operative report on the arthroscopy at issue. Thus, contrary to the determination of the District Court, defendant failed to make a prima facie showing of lack of causation. Consequently, defendant’s motion should have been denied.

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a [*2]matter of law since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (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 the 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]). In view of the foregoing, we do not reach plaintiff’s remaining contention.

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

MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits on the ground that the services rendered to the defendant’s assignor were not medically necessary, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered September 22, 2016, which denied its unopposed motion pursuant to CPLR 3215 for leave to enter a default judgment upon the defendant’s failure to appear or answer the complaint.

Ordered that the order is affirmed, without costs or disbursements.

In February 2016, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) seeking de novo adjudication of a dispute regarding the defendant’s entitlement to receive payment for medical services rendered to its assignor. After the defendant did not appear or answer the complaint, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. The Supreme Court denied the plaintiff’s unopposed motion on the ground that the plaintiff had not submitted sufficient facts to support its claim. On this appeal, we affirm, but for a different reason.

A plaintiff seeking leave to enter a default judgment must file proof of proper service of the summons and the complaint, the defendant’s default, and the facts constituting the claim (see CPLR 3215 [f]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]).

The plaintiff averred that it served the defendant, a foreign limited liability company not authorized to conduct business in New York, pursuant to Limited Liability Company Law § 304. As relevant to the plaintiff’s contentions, that statute requires three things. First, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State (see Limited Liability Company Law § 304 [b]). Second, in order for the personal delivery to the Secretary of State to be “sufficient,” the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process. The direct notice may be sent to the defendant by registered mail, return receipt requested, to the defendant’s last known address (see Limited Liability Company Law § 304 [c] [2]). Third, after process has been delivered to the Secretary of State and direct notice of that service has been sent to the defendant, the plaintiff must file proof of service with the clerk of the court. That proof of service must be in the form of an “affidavit of compliance.” The affidavit of compliance must be filed with the return receipt within 30 days after the plaintiff [*2]has received the return receipt from the post office. Service of process shall be complete 10 days after the affidavit of compliance has been filed with the clerk with a copy of the summons and complaint (Limited Liability Company Law § 304 [c] [2]). Strict compliance with Limited Liability Company Law § 304 is required, including as to the filing of an “affidavit of compliance” (see Interboro Ins. Co. v Tahir, 129 AD3d 1687, 1689 [2015]; cf. Flick v Stewart-Warner Corp., 76 NY2d 50, 57 [1990]). Where the plaintiff has failed to demonstrate strict compliance, the plaintiff will not be entitled to a default judgment (see Interboro Ins. Co. v Tahir, 129 AD3d at 1689). Here, the plaintiff failed to submit an affidavit of compliance with the return receipt within 30 days after it received the return receipt from the post office. Accordingly, the plaintiff’s unopposed motion for leave to enter a default judgment was properly denied (see id.).

In light of our determination, we need not address the plaintiff’s remaining contention. Balkin, J.P., Austin, Roman and LaSalle, JJ., concur.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,051.81.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for various medical supplies it had provided to its assignor, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). As to the medical necessity of the cervical traction unit for which recovery is sought in the second cause of action, which is the sole issue raised on appeal, defendant’s expert witness testified that he had reviewed the assignor’s medical records and that the cervical traction unit was not medically necessary. After awarding plaintiff a directed verdict on the first cause of action, the Civil Court stated, with regard to the second cause of action, that it had “no choice but to find in favor of the plaintiff,” as there was no proof as to the findings of the author of the peer review report upon which the denial of claim had been based, and therefore the court had no way of knowing whether defendant’s expert witness agreed or disagreed with the original peer reviewer. A judgment was subsequently entered awarding plaintiff $549.18 on the first cause of action and $502.63 on the second cause [*2]of action, as well as statutory interest and attorney’s fees.

The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141[A], 2012 NY Slip Op 51490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report. As plaintiff here failed to make an appropriate objection, it was error for the Civil Court to have disregarded the testimony of defendant’s witness. Consequently, a new trial is required on the second cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

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