Decided on November 12, 2015

Decided on November 12, 2015

Decided on November 9, 2015

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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 25, 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 the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth 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, 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. The first, second, third and fifth causes of action were dismissed as premature because plaintiff had failed to provide requested verification. The fourth cause of action was dismissed based on the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second, third and fifth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (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 first, second, third and fifth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an 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 these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), [*2]that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the fourth cause of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing this cause of action.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

ORDERED that the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings; as so modified, the judgment 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. By order entered February 6, 2013, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment upon the second, third, and fifth through ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. As limited by its brief, defendant appeals from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

The affidavit by defendant’s claims representative was sufficient to establish that [*2]defendant did not receive the claim forms underlying plaintiff’s third, eighth and ninth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claims ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, plaintiff is not entitled to summary judgment on its third, eighth and ninth causes of action.

Upon receiving the claim underlying the second cause of action, defendant sent letters notifying plaintiff that defendant was delaying payment thereon, but the letters did not request any specific verification. Consequently, contrary to defendant’s contention, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claim underlying the second cause of action (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). As the first letter that defendant sent to schedule plaintiff’s assignor’s examination under oath was sent more than 30 days after defendant had received the claim underlying the second cause of action, the 30-day period within which defendant was required to pay or deny this claim had already expired.

Accordingly, the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on November 9, 2015

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

Decided on November 9, 2015

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 21, 2013. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010.

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, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010, which defendant denied pursuant to the workers’ compensation fee schedule.

Contrary to plaintiff’s contention, defendant demonstrated prima facie that it had not received the verification requested with respect to plaintiff’s claim for $909 for supplies furnished on November 9, 2010 and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. As a result, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, so much of plaintiff’s complaint as sought to recover upon this claim is premature.

Similarly, the affidavit by defendant’s claims representative was sufficient to demonstrate prima facie that defendant had properly denied plaintiff’s claims for supplies furnished on September 7, 2010 and November 9, 2010 pursuant to the workers’ compensation fee schedule. In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact with respect thereto. In addition, the arguments which plaintiff has raised for the first time on appeal [*2]are not properly before this court, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2013. The order, insofar as appealed from and as limited by the brief, upon denying the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff’s favor with respect to that cause of action, granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action, and denied the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action. So much of the notice of appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action is deemed to be a notice of appeal from a judgment of the same court entered March 15, 2013, awarding plaintiff the principal sum of $735 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered February 8, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted.

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. Insofar as is relevant to this appeal, by order entered February 8, 2013, the Civil Court granted plaintiff’s motion for summary judgment upon the second cause of action; upon denying plaintiff’s motion for summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff’s favor with respect to that cause of action; denied the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action; and held that the only remaining issue for trial upon the first cause of action was whether defendant had timely and properly mailed the denial of claim form with respect to the claim underlying that cause of action.

Plaintiff’s moving papers failed to 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 claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide [*2]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, 11th & 13th Jud Dists 2011]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment upon the second cause of action should have been denied.

In support of the branch of its cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its special investigator which set forth the standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Defendant also submitted a copy of the certified mail, return receipt card bearing the subject claim number, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the subject denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff failed to submit an affidavit in opposition to defendant’s cross motion, defendant’s proof that the denial of claim form had been timely and properly mailed to plaintiff was unrebutted. 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 dismissing the first cause of action, insofar as the order denied that branch of defendant’s cross motion, it is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, we do not reach the issue of whether the Civil Court properly made CPLR 3212 (g) findings in favor plaintiff on this cause of action.

Accordingly, the judgment is reversed, so much of the order entered February 8, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff’s motion is denied. In addition, the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

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 judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was defendant’s proof of mailing of the denial of claim form.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant’s standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant’s motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and its cross motion was properly denied.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.