Decided on October 20, 2015

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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 19, 2015

APPEARANCES OF COUNSEL

The Law Office of Robyn M. Brilliant, P.C., New York City (Robyn M. Brilliant of counsel), for appellant.

Ordered that the order is modified by providing that the branch of defendant’s motion seeking attorney’s fees is granted; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney’s fees incurred by defendant up to the date of discontinuance.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s oral application for a discontinuance without prejudice was granted by the Civil Court on February 6, 2013. Thereafter, defendant moved to vacate the February 6, 2013 order, or, in the alternative, to modify the prior order by providing that the discontinuance was with prejudice, and for attorney’s fees and sanctions. By order dated January 7, 2014, the Civil Court denied the branch of defendant’s motion seeking to vacate or modify the February 6, 2013 order and implicitly denied the branches of defendant’s motion seeking attorney’s fees and sanctions.

Generally, courts are reluctant to compel a party to litigate (see DuBray v Warner Bros. Records, 236 AD2d 312, 314 [1997]), and it is well settled that courts have the discretion to grant a motion for discontinuance, without prejudice, if no{**50 Misc 3d at 53} special circumstances exist, such as prejudice to a substantial right of the defendant or other improper consequences (see Tucker v Tucker, 55 NY2d 378, 383 [1982]; GMAC Mtge., LLC v Bisceglie, 109 AD3d 874, 876 [2013]; Wells Fargo Bank, N.A. v Fisch, 103 AD3d 622, 622 [2013]; Mathias v Daily News, 301 AD2d 503, 504 [2003]; Valladares v Valladares, 80 AD2d 244, 257-258 [1981], mod on other grounds sub nom. Tucker v Tucker, 55 NY2d 378 [1982]). “Unlike a motion for change of venue which involves the affirmative selection of another forum, a court in granting discontinuance merely makes it possible for the action to be brought elsewhere” (Urbonowicz v Yarinsky, 290 AD2d 922, 923 [2002] [citations omitted]). However, motions for discontinuance should not be used to enable plaintiffs to “do indirectly what they are not permitted to do directly” (Katz v Austin, 271 App Div 217, 218 [1946]; see also DuBray v Warner Bros. Records, 236 AD2d at 314).

[1] In support of the branch of its motion seeking to vacate or modify the February 6, 2013 order, defendant did not provide any information regarding the arguments that had been made before the Civil Court in support of, and in opposition to, plaintiff’s oral application. Despite the fact that plaintiff subsequently commenced an action against defendant in the Civil Court, Bronx County, to recover the same no-fault benefits as sought herein, defendant’s argument—that plaintiff sought the discontinuance because it did not have a witness to provide testimony establishing its billing and wanted to commence an action in the Civil Court, Bronx County, where a witness allegedly is not required to establish billing—is not supported by the record, which indicates that a trial had yet to commence in the case at bar. The record does not establish that plaintiff expressed its intention to discontinue the Queens County action in order to commence an action in Bronx County (cf. DuBray v Warner Bros. Records, 236 AD2d at 314). Consequently, defendant did not establish that plaintiff indirectly sought to do what it was not permitted to do directly, i.e., change venue, when it moved for discontinuance.

[2] Notwithstanding the foregoing, inasmuch as it is uncontroverted that defendant had defended the instant action for three years during which time it had made numerous motions, engaged in discovery practice, and repeatedly appeared in court, defendant is entitled to recover the reasonable attorney’s fees it incurred in its defense of the instant action up to the date of discontinuance, in order to eliminate any possible{**50 Misc 3d at 54} prejudice attributable to the discontinuance (see Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146, 146-147 [2005]). We pass on no other issue.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking attorney’s fees is granted; as so modified, the order is affirmed, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney’s fees incurred by defendant up to the date of discontinuance.

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

Decided on October 8, 2015

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 19, 2014, as granted defendant’s motion for partial summary judgment.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.

We sustain the grant of defendant’s motion for partial summary judgment. Inasmuch as the health services underlying plaintiff’s no-fault claim were rendered in New Jersey, defendant may properly rely upon the New Jersey fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6 (see Surgicare Surgical Associates v National Interstate Ins. Co., appeal numbered 15-175, decided herewith). Plaintiff’s objections to the sufficiency of defendant’s proof pertaining to the calculation of the fees under the New Jersey fee schedule are premature, inasmuch as Civil Court made no determination as to the amount reimbursable under that fee schedule. We have considered and rejected plaintiff’s remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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Supreme Court, Appellate Term, First Department, October 8, 2015

Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, affirmed.

APPEARANCES OF COUNSEL

The Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for appellant.

Bruce Somerstein & Associates, P.C., New York City (Donald J. Kavanagh, Jr. of counsel), for respondent.

Order, entered November 17, 2014, affirmed, with $10 costs.

This first-party no-fault action arises from health services rendered by plaintiff provider at its New Jersey location. Plaintiff billed $10,800 for the services (associated with arthroscopic knee surgery), but defendant insurer paid only $5,996.67 on the claim, an amount in accordance with the New Jersey fee schedule. In this action, plaintiff, in effect, seeks the ($4,803.33) difference between the amount charged and payment made by defendant pursuant to the aforementioned fee schedule.

Insurance Department Regulations (11 NYCRR) § 68.6 provides that where a health service reimbursable under Insurance Law § 5102 (a) (1) “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (emphasis added). We agree, essentially for reasons stated by Civil Court (46 Misc 3d 736 [2014]), that where a reimbursable health care service is performed outside the State of New York in a jurisdiction that has enacted a medical fee schedule prescribing the permissible charge for the service rendered, an insurer may properly rely on such fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6, and demonstrate compliance therewith by payment in accordance with that fee schedule.

Significantly, the Superintendent of Insurance issued an opinion letter stating that the reimbursement amount under section 68.6 “is determined by the permissible cost” in the out-of-state location (Guatemala) (see Ops Gen Counsel NY Ins{**50 Misc 3d at 87} Dept No. 03-04-03 [Apr. 2003]). The Superintendent’s interpretation is entitled to deference, since it is neither irrational nor unreasonable, nor counter to the clear wording of a statutory provision (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]). Indeed, the Superintendent’s reliance upon the “permissible cost” in the foreign jurisdiction is consistent with [*2]the legislative purpose underlying Insurance Law § 5108 and implementing regulations—to “significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989], appeal dismissed 75 NY2d 945 [1990]).

Applying section 68.6 as interpreted by the Superintendent, the “prevailing fee in the geographic location of a provider” is the “permissible” reimbursement rate authorized in the foreign jurisdiction. Here, the permissible rate authorized in New Jersey for the services rendered by plaintiff is set forth in New Jersey’s no-fault statute and applicable fee schedule. Allowing plaintiff to bill at a rate significantly higher than the permissible charges in the New Jersey fee schedule would undermine the purpose of Insurance Law § 5108, and thwart the core objectives of the No-Fault Law—”to provide a tightly timed process of claim, disputation and payment” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 [2007] [citation omitted]), to “reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]).

Contrary to plaintiff’s claim, the omission of the term “fee schedule” from the regulation does not indicate that its exclusion was intended. Construed within the context of the regulation, whose scope and application broadly extends to all geographic locations outside the State of New York, the legislature’s use of the comprehensive term “prevailing fee,” rather than the less inclusive term “fee schedule,” comports with common sense and the reality that the different jurisdictions have not unanimously adopted a no-fault regime, and/or uniformly based the permissible reimbursement charge upon a medical fee schedule.

We note that since the services here were rendered after April 1, 2013, the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff Apr. 1, 2013]).{**50 Misc 3d at 88}

Plaintiff’s remaining contentions are unpreserved or without merit.

Shulman, J.P., Hunter, Jr., and Ling-Cohan, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 12, 2012. 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, second and fifth causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action are deemed an application to mark those causes of action discontinued with prejudice, and the application is granted; 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 granted defendant’s motion for summary judgment dismissing the complaint.

On September 27, 2011 and November 2, 2011, defendant mailed letters scheduling examinations under oath (EUOs) of plaintiff. On February 24, 2012, after this action was commenced, defendant served a notice to admit, pursuant to CPLR 3123, seeking plaintiff’s written admission that it had failed to appear at the scheduled EUOs. On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances (see CPLR 3123 [a]). In support of its motion, defendant also proffered a stipulation, signed by plaintiff’s attorney and a representative of defendant, providing that the third, fourth and sixth causes of action of the complaint were discontinued with prejudice.

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 [1997]; see Williams v City of New York, 125 AD3d 767 [2015]; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 [2013]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2011]). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper (see Williams v City of New York, 125 AD3d at [*2]768; Alberto v Jackson, 118 AD3d 733 [2014]; see generally CPLR 3123 [a]). We note that plaintiff’s remaining contention lacks merit (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). As a result, the branches of defendant’s motion seeking summary judgment dismissing the first, second and fifth causes of action should have been denied.

As plaintiff raised no challenge to the stipulation of settlement, the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action should have been deemed an application to mark those causes of action discontinued with prejudice and the application should have been granted.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, second and fifth causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing the third, fourth and sixth causes of action are deemed an application to mark those causes of action discontinued with prejudice, and the application is granted.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decided on September 30, 2015

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

Decided on September 29, 2015

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered July 17, 2014, which, upon reargument, adhered to its prior order entered November 4, 2013 (same court and Judge), denying defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered July 17, 2014, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to Civil Court’s determination, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home and Auto Ins. Co. 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U][App Term, 1st Dept 2015]).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied [*2]the claims on different grounds (see Unitrin, 82 AD3d at 560).

The order purporting to deny defendant’s motion to reargue addressed the merits and, in doing so, in effect, granted defendant’s motion and, therefore, the appeal taken therefrom is properly before this Court (see Jackson v Leung, 99 AD3d 489, 490 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on September 17, 2015

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

Decided on September 17, 2015

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