Eastcoast Metro. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51872(U))

Reported in New York Official Reports at Eastcoast Metro. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51872(U))

[*1]

Eastcoast Metro. Med., P.C. v ELRAC, Inc.

2017 NY Slip Op 51872(U) [58 Misc 3d 141(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 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
&em;

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Brand, Glick & Brand, P.C., for respondent (no brief filed).

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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues that defendant failed to establish, as a matter of law, that it had sent the EUO scheduling letters to the assignor’s correct address (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of this finding, we need not reach plaintiff’s remaining contentions.

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017Silver Acupuncture, P.C. v GEICO (Gov Employees) (2017 NY Slip Op 51876(U))

Reported in New York Official Reports at Silver Acupuncture, P.C. v GEICO (Gov Employees) (2017 NY Slip Op 51876(U))

[*1]

Silver Acupuncture, P.C. v GEICO (Gov Employees)

2017 NY Slip Op 51876(U) [58 Misc 3d 141(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 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
2015-1031 K C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, 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 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff had failed to appear for examinations under oath (EUOs).

Upon a review of the record, we find that defendant’s cross motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claims after plaintiff had failed to appear at both an initial and a follow-up EUO (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As defendant did not demonstrate that it is not precluded from raising its proffered defense, defendant’s cross motion for summary [*2]judgment dismissing the complaint should have been denied.

Contrary to plaintiff’s contention, plaintiff failed to establish its prima facie entitlement to summary judgment, as the proof it submitted 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 timely denial of claim forms that were 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]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017Clinton Place Med., P.C. v MVAIC (2017 NY Slip Op 51893(U))

Reported in New York Official Reports at Clinton Place Med., P.C. v MVAIC (2017 NY Slip Op 51893(U))

[*1]

Clinton Place Med., P.C. v MVAIC

2017 NY Slip Op 51893(U) [58 Misc 3d 143(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 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
2015-1635 K C

Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 24, 2015, deemed from a judgment of the same court entered January 26, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 24, 2015 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,652.81.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 24, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no fault benefits, plaintiff moved for summary judgment, and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from the order is deemed from the judgment that was subsequently entered (see CPLR 5501 [c]).

MVAIC’s cross motion papers established, prima facie, that the action had been [*2]commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered April 24, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017Tam Med. Supply Corp. v MVAIC (2017 NY Slip Op 51894(U))

Reported in New York Official Reports at Tam Med. Supply Corp. v MVAIC (2017 NY Slip Op 51894(U))

[*1]

Tam Med. Supply Corp. v MVAIC

2017 NY Slip Op 51894(U) [58 Misc 3d 143(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 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
2015-1732 Q C

Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 4, 2015. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had struck plaintiff’s assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies [*2]against the owner of the vehicle (see Right Aid Diagnostic Medicine, P.C. v MVAIC, 41 Misc 3d 126[A], 2013 NY Slip Op 51582 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))

Reported in New York Official Reports at W.H.O. Acupuncture, P.C. v GEICO Indem. Co. (2017 NY Slip Op 51900(U))

[*1]

W.H.O. Acupuncture, P.C. v GEICO Indem. Co.

2017 NY Slip Op 51900(U) [58 Misc 3d 144(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 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
2015-1887 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 8, 2015. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is 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 branch of defendant’s cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 on the ground that these claims lacked medical necessity.

In support of the branch of its cross motion at issue, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted a sworn report from the acupuncturist who had performed an independent medical examination of plaintiff’s assignor before the services at issue had been rendered, which report set forth a factual basis and medical rationale for the [*2]acupuncturist’s conclusion that there was a lack of medical necessity for further treatment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))

Reported in New York Official Reports at Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))

Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))

Reported in New York Official Reports at Compas Med., P.C. v Allstate Ins. Co. (2017 NY Slip Op 51842(U))

City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 51839(U))

Reported in New York Official Reports at City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 51839(U))

Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))

Reported in New York Official Reports at Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51836(U))

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51836(U))