[*1]

E. Stewart Jones Hacker Murphy, LLP, Troy (Ryan M. Finn of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for respondent.

Rumsey, J. Appeal from an order of the Supreme Court (Ferreira, J.), entered April 11, 2016 in Albany County, which partially granted defendant’s motion to partially dismiss the complaint.

Plaintiff alleged that she became permanently disabled as a result of injuries that she sustained in an automobile accident in March 2012. Following an independent medical examination (hereinafter IME), defendant denied no-fault insurance benefits on the basis that plaintiff’s injuries were preexisting and were not causally related to the accident. In December 2014, plaintiff commenced this action asserting causes of action for breach of contract, violation of General Business Law §§ 349 and 350 and intentional infliction of emotional distress, based on allegations that defendant pressured the physicians that it employed to conduct IMEs to attribute injuries to preexisting conditions and thereby facilitate the denial of claims, and seeking, among other relief, damages for emotional distress and punitive damages. In October 2015, defendant moved to dismiss the second and third causes of action—for violation of General Business Law §§ 349 and 350 and intentional infliction of emotional distress, respectively—and plaintiff’s claims for consequential damages, emotional distress damages and punitive damages. Supreme Court partially granted defendant’s motion by dismissing the second and third causes of action and plaintiff’s claims for emotional distress damages and punitive damages, but held that plaintiff had adequately stated a claim for consequential damages for economic loss and pain and [*2]suffering. Plaintiff now appeals.^[FN1]

“On a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory” (Shebar v Metropolitan Life Ins. Co., 25 AD3d 858, 859 [2006] [internal quotation marks, brackets and citations omitted]). “A cause of action to recover damages pursuant to General Business Law § 349 has three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act” (Benetech, Inc. v Omni Fin. Group, Inc., 116 AD3d 1190, 1190 [2014] [internal quotation marks and citations omitted], lv denied 23 NY3d 909 [2014]). In that regard, allegations that an insurer engaged in a practice of failing to investigate claims in good faith, or of denying claims without regard to their viability, are sufficient to state a cognizable claim for deceptive practices pursuant to General Business Law § 349 (see Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 564-565 [2012]; Shebar v Metropolitan Life Ins. Co., 25 AD3d at 858-859; Joannou v Blue Ridge Ins. Co., 289 AD2d 531, 532 [2001]; Acquista v New York Life Ins. Co., 285 AD2d 73, 78, 82 [2001]). Moreover, “[t]he battle over whether [a] plaintiff can meet [his or] her obligation of a threshold showing that [his or] her claim was predicated upon a deceptive act or practice that was consumer oriented is best reserved for a motion for summary judgment after discovery” (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004] [internal quotation marks and citations omitted]).

In her complaint, plaintiff alleged that defendant engaged in a consumer-oriented pattern and practice aimed at the public at large of wrongfully denying claims for no-fault benefits by pressuring the physicians it hired to perform IMEs to provide medical reports that would support the denial of benefits and, further, that she suffered injury as a result of that practice. Such allegations are sufficient to plead a cause of action pursuant to General Business Law § 349 “ ’at this early prediscovery phase’ ” (Shebar v Metropolitan Life Ins. Co., 25 AD3d at 859 [brackets omitted], quoting Skibinsky v State Farm Fire & Cas. Co., 6 AD3d at 976).^[FN2] Thus, Supreme Court erred in granting defendant’s motion to dismiss plaintiff’s General Business Law § 349 cause of action.

[*3] In her breach of contract claim, plaintiff seeks consequential damages, including damages for emotional distress. Supreme Court dismissed plaintiff’s claim for emotional distress damages and held that plaintiff had otherwise adequately pleaded a claim for consequential damages. We agree. It has long been the rule that “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty” (Wehringer v Standard Sec. Life Ins. Co. of N.Y., 57 NY2d 757, 759 [1982]; accord Johnson v Jamaica Hosp., 62 NY2d 523, 528-529 [1984]; see Hess v Nationwide Mut. Ins. Co., 273 AD2d 689, 690-691 [2000]; Klein v Empire Blue Cross & Blue Shield, 173 AD2d 1006, 1008 [1991], lv denied 78 NY2d 863 [1991]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 45 [1991], lv dismissed 78 NY2d 1072 [1991]). As Supreme Court noted, plaintiff failed to satisfy this standard because she did not allege the existence of any relationship or duty between the parties separate from the contractual obligation.

We reject plaintiff’s argument that she may seek damages for emotional distress in light of Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (10 NY3d 187 [2008]) and Panasia Estates, Inc. v Hudson Ins. Co. (10 NY3d 200 [2008]), in which the Court of Appeals held, for the first time, that “consequential damages resulting from a breach of the covenant of good faith and fair dealing may be asserted in an insurance contract context, so long as the damages were ‘within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting’ ” (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 203, quoting Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 192 [internal quotation marks and citations omitted]). Although the Court of Appeals did not specifically consider the issue of whether damages were available for emotional distress when it decided Bi-Economy and Panasia, we conclude that it did not implicitly abandon the long-standing rule that damages for emotional distress for breach of contract are available only in certain limited circumstances, such as a willful breach accompanied by egregious and abusive behavior (see Johnson v Jamaica Hosp., 62 NY2d at 528-529).

In that regard, we note that the Second Department has continued to apply the rule of Wehringer v Standard Sec. Life Ins. Co. of N.Y. (supra) following Bi-Economy and Panasia (see Curtis-Shanley v Bank of Am., 109 AD3d 634, 635 [2013], appeal dismissed and lv denied 22 NY3d 1133 [2014]; Rakylar v Washington Mut. Bank, 51 AD3d 995, 996 [2008]). The Second Department has also held, based on a rule that existed prior to Bi-Economy and Panasia, that the scope of consequential damages permitted by Bi-Economy and Panasia does not include the expenses incurred when an insured commences affirmative litigation to enforce its rights under an insurance policy (see Santoro v GEICO, 117 AD3d 1026, 1028 [2014]; Stein, LLC v Lawyers Tit. Ins. Corp., 100 AD3d 622, 622-623 [2012]).^[FN3] We agree that nothing in Bi-Economy or Panasia implicitly altered or abrogated previous rules limiting recovery of damages for breach of a contract-related duty. Rather, Bi-Economy and Panasia announced a new rule that extended the ability to recover consequential damages for breach of the covenant of good faith and fair dealing in the context of an insurance contract—a circumstance where they had not previously been available—subject to the same rules that otherwise limit recovery of damages for any breach of contract. Thus, Supreme Court properly dismissed plaintiff’s claim seeking damages for [*4]emotional distress.^[FN4]

Plaintiff’s claim for punitive damages was likewise properly dismissed. Punitive damages may be recovered for breach of contract “only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public” (Dinstber v Allstate Ins. Co., 110 AD3d 1410, 1411 [2013]). Plaintiff’s allegations that defendant engaged in unfair claim settlement practices do not allege a tort independent of the parties’ contract sufficient to state a claim for recovery of punitive damages (see id.; Cunningham v Security Mut. Ins. Co., 260 AD2d 983, 984-985 [1999], lv dismissed 94 NY2d 796 [1999]).

McCarthy, J.P., and Rose, J., concur.

Lynch, J. (concurring in part and dissenting in part). We concur in the majority statement, except insofar as the majority has determined that damages for emotional distress are not recoverable on plaintiff’s breach of contract claim. The majority correctly states the governing rule for consequential loss as defined by the Court of Appeals in Panasia Estates, Inc. v Hudson Ins. Co. (10 NY3d 200 [2008]) and Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y. (10 NY3d 187 [2008]). Those cases involved claims for consequential damages for breach of a commercial property insurance policy and in the context of business interruption insurance coverage (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 202-203; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 190-191). Neither case addressed damages for emotional distress, but confirmed that consequential damages are recoverable for a breach of the covenant of good faith and fair dealing “so long as the damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting” (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d at 203 [internal quotation marks and citations omitted]). Given the nature and purpose of no-fault coverage, it is our view that the insured bargains for not only the monetary benefits, but also the intangible peace of mind that prompt payment will be made for medical expenses and lost wages emanating from injuries sustained in an automobile accident (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d at 193-194). Certainly, such a benefit is within the contemplation of the parties as an integral component of the contract (see Connolly v Peerless Ins. Co., 873 F Supp 2d 493, 506-507 [ED NY 2012]; Chernish v Massachusetts Mut. Life Ins. Co., 2009 WL 385418, *4, 2009 US Dist LEXIS 9617, *16-19 [ND NY, Feb. 10, 2009, No. 5:08-CV-0957 (GHL)]; Acquista v New York Life Ins. Co., 285 AD2d 73, 78-82 [2001]). For this reason, it is our view that plaintiff is entitled to seek damages for emotional distress on her breach of contract claim.

Egan Jr., J., concurs. Ordered that the order is modified, on the law, without costs, by reversing so much [*5]thereof as granted defendant’s motion to dismiss the General Business Law § 349 cause of action; motion denied to said extent; and, as so modified, affirmed.

Footnotes

Footnote 1:Plaintiff abandoned any arguments with respect to the General Business Law § 350 and intentional infliction of emotional distress claims by failing to address the dismissal of those claims in her brief on appeal (see McConnell v Wright, 151 AD3d 1525, 1526 n [2017]; Miller v Genoa AG Ctr., Inc., 124 AD3d 1113, 1114 n [2015]).

Footnote 2:Where, as here, the complaint asserts the material elements of a cause of action, the complaint may be amplified by allegations made in a bill of particulars (see ADC Chattels v Atlantic Dental Co., 169 AD2d 903, 903-904 [1991]; Lewis v Village of Deposit, 40 AD2d 730, 730 [1972], affd 33 NY2d 532 [1973]; see e.g. Ural v Encompass Ins. Co. of Am., 97 AD3d at 564). In her bill of particulars, plaintiff averred that defendant pressured IME physicians to issue medical reports that would wrongfully support the denial of claims specifically in instances where an insured had a preexisting injury.

Footnote 3:We decline to follow Acquista v New York Life Ins. Co. (285 AD2d 73 [2001]), which was decided prior to Bi-Economy and Panasia, to the extent that it suggests that damages for emotional distress are recoverable for breach of the covenant of good faith and fair dealing with respect to insurance contracts.

Footnote 4:In light of our determination that damages for emotional distress are not available in this action, as a matter of law, we need not consider whether such damages may have been foreseeable.

725730/2016

Attorney for Plaintiff:
Damin J. Toell Esq. from the Law Offices of Damin J. Toell, P.C.

Attorney for Defendant:
Jamila Shukry Esq. from McCormack & Mattei, P.C.

In this action by a provider to recover assigned first-party no-fault benefits, Plaintiffs seeks reimbursement for chiropractic manipulation under anesthesia of assignor Maria Baez’ cervical spine, thoracic spine, lumbar spine, pelvis and left shoulder on December 21, 2016, January 4, 2016 and January 8, 2016, arising out of an accident on October 13, 2015.

Both parties stipulated that Plaintiff established its prima facie case by timely submitting the bills at issue to Defendant and Defendant established timely mailing the denial. The sole issues remaining for trial were the defenses of medical necessity and whether Plaintiff was properly reimbursed by Defendant pursuant to the fee schedule and calculations applied.

A bench trial was commenced and completed on October 24, 2017. Defendant produced a chiropractor, Dr. Thomas McLaughlin who conducted a peer review of Ms. Baez’ records and testified that the series of manipulations under anesthesia performed on Ms. Baez were not medically necessary. Dr. McLaughlin testified that Ms. Baez did not have surgery, and generally, most patients who receive manipulation under anesthesia are people who recently underwent surgery and cannot move a joint because of the increase of scar tissue (tr at pp. 18-19). Furthermore, Dr. McLaughlin testified that Ms. Baez’ records indicate she had an upper neuron region disorder and manipulation under anesthesia would be inappropriate for a person with such a disorder (tr at p. 15 lines 3-14). Dr. McLaughlin also testified that, in this case, Ms. Baez’ medical records reflected that Ms. Baez’ condition since the accident remained consistent in many respects, but showed improvement in others, and Plaintiff did not allow Ms. Baez to proceed with physical therapy to its full potential before performing manipulation under anesthesia (tr at p. 32 lines 1-10). He testified that some of Ms. Baez’ other doctors recommended further physical therapy, and none of them recommended manipulation under anesthesia (tr at p. 24 lines 12-20). Dr. McLaughlin also testified on direct examination that Ms. [*2]Baez’ initial consultation for manipulation was performed on the same date as her first manipulation under anesthesia (tr at p. 14 lines 5-16), but, on cross-examination, Dr. McLaughlin admitted that his statement on direct examination was incorrect and that the initial consultation for manipulation under anesthesia was actually five days before the first procedure (tr at pp. 25-26).

Specifically, Dr. McLaughlin testified that, Dr. Alex Khait, the doctor who performed the procedures on Ms. Baez, used the National Academy of Manipulation Under Anesthesia guidelines in deciding to perform the procedure, and that under the guidelines the procedure should be used when it would be the “most efficacious care for the person.” He disagreed that manipulation under anesthesia was the “most efficacious care” for Ms. Baez at the time it was done (tr at p. 18 lines 7-24).

Defendant also produced Christine Madigan, a Senior Litigation Representative for Defendant who testified that Defendant was billed for $3,572.91, and should have been instead been billed $1,462.47, based on the correct fee schedule (tr at p. 37 lines 21-25). Ms. Madigan testified which codes and modifiers should have been used and how often they should have been billed in calculating its invoice. During her testimony, Ms. Madigan testified that Defendant was charged three times in one day for manipulation under anesthesia to the cervical, thoracic and lumbar spines, even though the code should have been billed only once per day under the multiple procedure rule (tr at p. 47 lines 3-11).

Plaintiff presented an additional witness, chiropractor Dr. Robert Luca, to rebut Dr. McLaughlin’s testimony regarding the medical necessity of the procedures. Dr. Luca testified twenty-five points of contention with Dr. McLaughlin’s analysis. He testified that manipulation under anesthesia served to “restore the proper joint both mechanical and physiological” with stretching to remobilize the joint and “re-establish the normal or near normal resting length of the muscles tendons and ligaments as well as reactivate something called collateral inhibition physiological response” (tr at p. 54 lines 7-24). He testified that the procedure is not only reserved for patients who have undergone surgery. Among his reasons that the procedure was necessary in Ms. Baez’ case was that “the patient has responded favorably to conservative chiropractic medical treatment, but continued to experience chronic pain or persistent pain”; Ms. Baez had two to six weeks of care at least before the procedure, but suffered continuing pain that interfered with her lifestyle, and Ms. Baez refused other options for treatment (tr at p. 56 lines 3-23). He stated that these reasons were listed in the criteria set by the National Academy of Manipulation Under Anesthesia for a patient who would be an appropriate candidate for manipulation under anesthesia (tr at pp. 55-56). He also disagreed with Dr. McLaughlin and stated that, from his review of the medical records and the peer review, it appeared that Ms. Baez had “plateaued” and was “rebounding” into a “downward cycle,” even though her initial response to treatment was good (tr at p. 62 lines 10-25). He also thought that Ms. Baez received a sufficient course of treatment prior to manipulation under anesthesia (tr at p. 63 lines 6-13).

The issue here is whether Defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether Plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see New Horizon Surgical Ctr, LLC v Allstate Ins. Co., 52 Misc 3d 139[A][App Term 2d Dept 2016]; see also Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept 2012]).

“A no-fault insurer defending a denial based on lack of ‘medical necessity’ must at least show that the services were inconsistent with generally accepted medical/professional practice (Citywide Soc. Work & Psy. Serv., PLLC v Travelers Indem. Co., 3 Misc 3d 608, 609 [Civ Ct, Kings County 2004]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Id. at 616). Unless there is reference to “generally accepted” medical/professional practice, conflicting expert testimony will only show a difference in professional medical judgment between two doctors (Id. at 612).

In this trial, the conflicting opinions of Dr. McLaughlin and Dr. Luca demonstrate a difference in professional medical judgment regarding whether manipulation under anesthesia was appropriate for the assignor in this case, in light of the standards set forth by the National Academy of Manipulation Under Anesthesia.

Defendant did not present sufficient evidence to establish that the manipulation under anesthesia was inconsistent with generally accepted professional practice considering Ms. Baez’ medical treatment and condition at the time. Therefore, the evidence was insufficient to carry defendant’s burden of proving that the services were not medically necessary.

However, based on the credible and uncontroverted testimony of Ms. Madigan, this court finds that Defendant has met its burden of showing that the appropriate amount for the invoices at issue was $1,462.47 instead of $3,572.91. Plaintiff submitted no evidence or testimony to rebut Ms. Madigan’s testimony.

Therefore, judgment is awarded in favor of Plaintiff. The Clerk is directed to enter judgment in favor of Plaintiff in the amount of $1,462.47, together with applicable statutory interest, attorney fees and costs.

This constitutes the Decision and Order of the Court.

Dated: December 13, 2017
Kings, New York
____________________
Mary V. Rosado, J.C.C.

Decided on December 12, 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
2014-2773 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, 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 (Larry Love, J.), entered November 6, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied; as so modified, the order 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 on the ground that it had timely and properly denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 6, 2014, the Civil Court granted defendant’s motion.

Defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff was timely with respect to the claims underlying the first and second causes of action, as defendant stated that the letter had been sent more than 30 days after [*2]defendant had received 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 failed to demonstrate that it had properly and timely denied 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]).

However, although the first EUO scheduling letter was mailed more than 15 business days after the claim underlying the third cause of action had been received, the NF-10 denying this claim was nevertheless timely (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]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied.

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

Decided on December 12, 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
2014-2271 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Arvind Purohit, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 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, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered August 13, 2014, the Civil Court granted defendant’s motion.

In support of its motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an [*2]affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

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 December 8, 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
2015-144 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 10, 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 which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its cross motion, defendant failed to establish that the initial and follow-up IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the first and third through sixth causes of action.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as 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 timely denials of claim 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]).

There is a triable issue of fact as to whether defendant received the claim form underlying the second cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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.