Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50929(U))
| Daily Med. Equip. Distrib. Ctr., Inc. v State Farm Mut. Auto. Ins. Co. |
| 2016 NY Slip Op 50929(U) [52 Misc 3d 129(A)] |
| Decided on June 6, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2371 Q C
against
STATE FARM MUTUAL AUTOMOBILE INS. CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 2, 2013. 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 October 2, 2013, the Civil Court granted defendant’s motion.
For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), the order is reversed and defendant’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016
Reported in New York Official Reports at Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50928(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 3, 2013. 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 dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.
Contrary to plaintiff’s arguments, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.
With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, in a similar case involving the failure of a provider’s assignor to appear for EUOs, the Appellate Division, Second Department, has held that, to establish its prima facie entitlement to summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, an insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a [*2]timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). A review of the record in Interboro Ins. Co. v Clennon reveals that, in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second Department, stated the following:
“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).
Similarly, in the instant case, plaintiff “did not establish what information [it] hoped to discover that would demonstrate the existence of a triable issue of fact” (id.; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016
Reported in New York Official Reports at Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50927(U))
| Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 50927(U) [52 Misc 3d 129(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2326 Q C
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 9, 2013. 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 on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered September 9, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), 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.
Decision Date: June 06, 2016
Reported in New York Official Reports at IMA Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50926(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2013, deemed from a judgment of the same court entered September 4, 2013 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 14, 2013 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 $3,092.34.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 14, 2013 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.
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 on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). By order entered August 14, 2013, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment awarding plaintiff the principal sum of $3,092.34 was entered on September 4, 2013. Defendant’s subsequently filed notice of appeal from the August 14, 2013 order is deemed to be a notice of appeal from the judgment entered September 4, 2013 (see CPLR 5512 [a]).
Contrary to defendant’s contention, the affirmation submitted in support of defendant’s cross motion by a partner in the law firm retained by defendant to conduct EUOs of plaintiff was not made on personal knowledge and, therefore, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
With respect to plaintiff’s motion, we find that plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as plaintiff did not establish that defendant’s defense lacked 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 judgment is reversed, so much of the order entered August 14, 2013 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary [*2]judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016
Reported in New York Official Reports at Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50924(U))
| Longevity Med. Supply, Inc. v Praetorian Ins. Co. |
| 2016 NY Slip Op 50924(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2143 K C
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
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 at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to whether plaintiff’s assignor had failed to appear for duly scheduled IMEs. As limited by its brief, defendant appeals from so much of the order as denied its motion.
In support of its motion, defendant submitted affidavits from the doctor and chiropractor who were to perform the IMEs, which affidavits were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016
Reported in New York Official Reports at New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50923(U))
| New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. |
| 2016 NY Slip Op 50923(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2135 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. 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.
For the reasons stated in Alleviation Med. Servs., P.C., as Assignee of Kadeem Anderson v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2132 K C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016
Reported in New York Official Reports at Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U))
| Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2016 NY Slip Op 50922(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2132 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 6, 2013. 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.
While defendant submitted an affirmation from the doctor who was scheduled to perform the independent medical examinations (IMEs), the doctor did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, as each IME scheduling letter was mailed to plaintiff’s assignor at a different address, there is also an issue fact as to whether plaintiff’s assignor received notice of both scheduled IMEs.
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.
Decision Date: June 06, 2016
Reported in New York Official Reports at Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50921(U))
| Ultimate Health Prods., Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 50921(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2131 K C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 4, 2013. 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 on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered March 4, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), 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.
Decision Date: June 06, 2016
Reported in New York Official Reports at New Way Med. Supply Corp. v Praetorian Ins. Co. (2016 NY Slip Op 50920(U))
| New Way Med. Supply Corp. v Praetorian Ins. Co. |
| 2016 NY Slip Op 50920(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2130 K C
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 17, 2013. 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 on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered April 17, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Great Health Care Chiropractic, P.C., as Assignee of Carlos Thomas v Hereford, Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1720 Q C], decided herewith), 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.
Decision Date: June 06, 2016
Reported in New York Official Reports at Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50918(U))
| Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 50918(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| 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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2080 Q C
against
New York Central Mutual Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 15, 2013. 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, defendant moved for summary judgment dismissing the complaint, asserting that it had timely denied plaintiff’s claim on the ground of lack of medical necessity for the supplies furnished by plaintiff and that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs). The Civil Court granted defendant’s motion based on the failure of plaintiff’s assignor to appear for the IMEs.
In support of its motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As a result, since plaintiff does not challenge the Civil Court’s determination that defendant’s denial of claim form had been timely mailed, defendant was entitled to summary judgment dismissing the complaint on the ground of lack of medical necessity. In light of the foregoing, we need not reach plaintiff’s contentions with respect to defendant’s proof that plaintiff’s assignor failed to appear for the IMEs.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016