[*1]

Michael Palmeri, M.D., PLLC v Allstate Ins. Co.

2015 NY Slip Op 51130(U) [48 Misc 3d 136(A)]

Decided on July 27, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-2368 Q C

Michael Palmeri, M.D., PLLC as Assignee of WILDA MAYARD, Respondent,

against

Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 17, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied, as untimely, defendant’s motion for summary judgment dismissing the complaint.

Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578 [2013]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d, 11th & 13th Jud Dists 2014]).

We note that we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

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

Decision Date: July 27, 2015

[*1]

Tam Med. Supply Corp. v Lancer Ins. Co.

2015 NY Slip Op 51126(U) [48 Misc 3d 136(A)]

Decided on July 27, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1240 Q C

Tam Medical Supply Corp. as Assignee of MAGALIE DAMIS, Appellant,

against

Lancer Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2013. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for, in effect, 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, in effect, summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had not provided verification as requested by defendant.

Since a claim need not be paid or denied until all demanded verification with respect thereto is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). In support of its motion, defendant demonstrated that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, upon a review of the record, we find that defendant did not demonstrate, prima facie, that it had not received the requested verification. Consequently, defendant is not entitled to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, we need not reach defendant’s remaining contention.

Accordingly, the order is reversed and defendant’s motion for, in effect, summary judgment dismissing the complaint is denied.

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

Decision Date: July 27, 2015

Acuhealth Acupuncture, PC a/a/o/ ANDRE MASON, Plaintiff, against Country-Wide Insurance Company, Defendants.

15621/12

Attorney For Petitioner: Acuhealth Acupuncture, P.C.
Gary Tsirelman, P.C.
129 Livingston Street
Brooklyn, New York 11201

Attorney For Respondent: Country-Wide Insurance Company
Jaffe & Koumourdas
40 Wall Street – 12th Floor
New York, New York 10005

Ellen M. Spodek, J.

PapersNumbered

Notice of Motion and Affidavit………………………………………………..____1_____

Notice of Cross Motion and Affidavit ……………………………..____2_____

Answering Affidavits ……………………………………………………………..____3_____

Replying Affidavits ………………………………………………………………..____4_____

Exhibits …………………………………………………………………………………____5_____

Other .__________

Upon the foregoing papers, petitioner ACUHEALTH ACUPUNCTURE, PC moves for an order to vacate the Master Arbitrator’s award, pursuant to CPLR § 7511. Respondent COUNTRY-WIDE INSURANCE COMPANY opposes the motion and moves for an order to confirm the Master Arbitrator’s award, pursuant to CPLR § 7510.

This case arises out of an automobile accident with petitioner’s assignor on August 8, 2010. At the time of the accident, there was an existing No-Fault policy issued by the Respondent. Petitioner rendered health services to the assignor for the personal injuries sustained in the car accident. When petitioner did not receive full reimbursement for the services provided, the matter proceeded to arbitration. Respondent denied payment for acupuncture services on the contention that petitioner was owned and controlled by a person who is contrary to the New York State No-Fault law requirements, which states that “A provider of health care services is not eligible for reimbursement . . . if the provider fails to meet any applicable New York State . . . licensing requirement necessary to perform such service in New York.” 11 NYCRR § 65-3.16(a)(12). Respondent provided evidence that ACUHEALTH ACUPUNCTURE, PC was owned, controlled, and operated by Andrey Anikeyev, who is not a licensed medical practitioner. Petitioner submitted an affidavit from Natalya Kornilova stating that she is the sole owner of petitioner. As Ms. Kornilova was ill at the time of the arbitration, Arbitrator Weiner dismissed the petitioner’s claim without prejudice to afford respondent the opportunity to subpoena Ms. Kornilova and examine her under oath during the proceedings. Petitioner appealed and Master Arbitrator D’Ammora affirmed.

“An arbitration award can be vacated by a court pursuant CPLR § 7511(b) on only three narrow grounds: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator’s power.” Matter of Erin Constr. & Dev. Co., Inc. v. Meltzer, 58 AD3d 729 (2009). Even if the arbitrator commits errors of fact or law, the [*2]court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). In this case, Arbitrator Weiner’s ruling and Master Arbitrator D’Ammora’s affirmation do not meet the three narrow grounds for the Court to vacate the award pursuant to CPLR § 7511. The award is not against public policy of any kind, it is not irrational, and it does not exceed the powers of the arbitrator in any capacity. As such, the Court has no recourse but to affirm the arbitrator’s award.

Petitioner argues that the respondent should be estopped from litigating this case since a similar case was litigated in prior proceedings in this Court. “The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue.” Luscher v. Arrua, 21 AD3d 1005, 1007 (2005). However, petitioner does not provide the Court with any evidence or details of the prior rulings of Judge King or Judge Bayne. Their decisions only state that the case be remanded. In order for collateral estoppel to apply, this Court would need details of the reasoning behind the prior decisions of Judge King and Judge Bayne to determine whether the issues in this case were previously decided. As such details were not provided by the petitioner, respondent is not estopped from litigating this issue.

Petitioner argues that Arbitrator Weiner acted impermissibly and incorrectly as a matter of law by raising the issue of subpoenaing Natalya Kornilova sua sponte. However, an “arbitrator . . . may subpoena witnesses . . . upon the arbitrator’s own initiative or upon the request of any party, when the issues to be resolved require such witnesses.” 11 NYCRR § 65-4.5(o)(2), (see also NY CPLR § 7505, 11 NYCRR § 65-4.4 [e]). Petitioner cites a case, Matter of Health & Endurance Med., P.C. v. Deerbrook Ins. Co., 44 AD3d 857 (2007), which has no relevance to this matter. In that case, the arbitrator raised an issue not relevant for determination of the issues. In this case, the contents of Ms. Kornilova’s deposition were integral to the determination of the issues in question, namely the ownership of the petitioner. As such, the Arbitrator was well within his power to issue a subpoena to Ms. Kornilova.

Petitioner argues that Arbitrator Weiner impermissibly dismissed the case without prejudice. Petitioner contends that a dismissal without prejudice is only warranted when the filing is premature. However, petitioner does not provide any case law to support this proposition. To the contrary, an arbitrator can dismiss a case without prejudice when a party “has failed to establish a prima facie case, but it appears that proof which would support a prima facie case is available.” Kilduff v. Donna Oil Corp., 74 AD2d 562, 563 (1980). A dismissal without prejudice indicates that there was no final determination on the merits and a subsequent action should not be barred. Id. In this case, petitioner is still entitled to bring their claim to an arbitrator at a time Ms. Kornilova is healthy enough to be examined under oath by respondent. As such, the dismissal without prejudice was permissible.

Petitioner further contends that Arbitrator Weiner’s findings were arbitrary and capricious or incorrect as a matter of law regarding the question of whether Petitioner is fraudulently incorporated. As indicated earlier, “even if the arbitrator commits errors of fact or law, the court should not vacate the arbitrator’s award.” Wien & Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471 (2006). Arbitrator Weiner’s findings were not so egregious or against public policy as to vacate the award. As explained in Arbitrator D’Ammora’s affirmation, “Arbitrator Weiner could have reached several different results in his decision.” See Affirmation in Opposition, Exhibit B. Arbitrator Weiner’s decision was logical and reasonable and does not warrant the Court vacating the award.

The Court finds that petitioner has failed to provide any evidence to demonstrate that Arbitrator Weiner and Arbitrator D’Ammora acted in any way that was against public policy, completely irrational, or manifestly exceeded a specific enumerated limit on the arbitrator’s powers. Petitioner’s motion to vacate or remand the arbitration award is denied. Pursuant to CPLR § 7510, Master Arbitrator D’Ammora’s award dated October 28, 2014 is confirmed.

This constitutes the decision and order of the Court.

ENTER,

____________________

JSC

Nationwide Gen. Ins. Co. v Bates

2015 NY Slip Op 06122 [130 AD3d 795]

July 15, 2015

Appellate Division, Second Department

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

As corrected through Wednesday, September 2, 2015

[*1]

Nationwide General Insurance Company, Respondent, v Linwood Bates III et al., Defendants, and Active Care Medical Supply Corp. et al., Appellants.

The Rybak Firm, PLLC, Brooklyn, N.Y. (Damin J. Toell of counsel), for appellants.

McCormack & Mattei, P.C., Garden City, N.Y. (Rosemary E. Ross and Nicole Holler of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay certain no-fault claims submitted to it by the defendants, the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), entered October 21, 2013, as, upon an order of the same court entered August 7, 2013, among other things, granting those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against them, is in favor of the plaintiff and against them declaring that the plaintiff has no duty to provide coverage to them and that the policy issued by the plaintiff to the defendant Linwood Bates III is null and void with respect to them.

Ordered that the judgment is reversed insofar as appealed from, on the law, those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc., are denied, the order is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

The plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to pay no-fault claims submitted to it by the defendants Active Care Medical Supply Corp. and Ultimate Health Products, Inc. (hereinafter together the appellants), in connection with three automobile collisions involving an automobile owned by the defendant Linwood Bates III (hereinafter Bates) and insured by the plaintiff. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that it is not required to pay no-fault claims to certain medical providers in connection with the three collisions on the ground that the collisions were intentional and staged in furtherance of a fraud scheme. The Supreme Court granted the plaintiff’s motion.

“[A]n intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance” (Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]; see Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663, 664 [2015]).

[*2] In support of its motion for summary judgment on the complaint, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. The plaintiff asserted that several defendants failed to attend their scheduled depositions, which was purportedly a breach of Bates’s insurance contract with the plaintiff. The plaintiff, however, failed to submit evidence from someone with personal knowledge of the mailings of the deposition requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). In addition, the uncertified police accident reports submitted by the plaintiff were not admissible (see Adobea v Junel, 114 AD3d 818, 820 [2014]; Cheul Soo Kang v Violante, 60 AD3d 991 [2009]; Gagliano v Vaccaro, 97 AD2d 430, 431 [1983]). Further, the unsigned and unsworn deposition transcript of the defendant Miguel Ortiz was inadmissible (see CPLR 3116; Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 51 [2014]; McDonald v Mauss, 38 AD3d 727, 728 [2007]). The plaintiff submitted an affidavit of its investigator, but the investigator relied, mostly, on inadmissible evidence, and lacked personal knowledge of the facts surrounding the three collisions. Accordingly, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]).

Since the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the appellants, and we need not consider the sufficiency of the appellants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The appellants’ remaining contentions have been rendered academic in light of our determination. Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.

Avenue C Med., P.C. v Encompass Ins. of MA

2015 NY Slip Op 06101 [130 AD3d 764]

July 15, 2015

Appellate Division, Second Department

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

As corrected through Wednesday, September 2, 2015

[*1]

Avenue C Medical, P.C., as Assignee of Alejandro Romero-Garcia, Appellant, v Encompass Insurance of MA, Respondent.

Khavinson & Associates, P.C., Brooklyn, N.Y. (Thomas T. Kranidas of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action, in effect, pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 30, 2013, which granted the defendant’s motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. The complaint, in effect, sought a de novo determination of the plaintiff’s no-fault claim pursuant to Insurance Law § 5106 (c). “The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater” (Green v Liberty Mut. Ins. Co. Trust, 16 AD3d 457, 457 [2005]). Here, the master arbitrator, by vacating the arbitrator’s award in its entirety, effectively made no monetary award, and, because the master arbitrator’s award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo (see id.; General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424, 424 [1989]; Matter of Sansiviero v Royal Globe Ins. Co., 109 AD2d 840, 842 [1985]). Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 1, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on April 25, 2011, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending that plaintiff’s cause of action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from an order of the Civil Court denying its motion and granting defendant’s cross motion.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff and a number of other providers, as well as the allegedly injured assignor. In a judgment entered on default on December 4, 2012, the Supreme Court declared that plaintiff, among others, was not entitled to recover no-fault benefits arising out of the accident on April 25, 2011. In light of the default declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata applies to a judgment taken by default which [as in the present case] has not been vacated” (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

Accordingly, the order is affirmed.

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

Decision Date: July 14, 2015

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2013. The order, insofar as appealed from, upon granting the branch of defendant’s motion seeking to consolidate three actions for purposes of disposition of the branch of defendant’s motion seeking summary judgment dismissing the complaints therein, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint in the above-captioned action.

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 for services rendered to its assignor, who had allegedly sustained injuries in a motor vehicle accident on February 19, 2011, defendant moved to consolidate the instant action with two other actions and for summary judgment dismissing the complaint in each of the three actions, contending that each action is barred by virtue of a default judgment in a Supreme Court declaratory judgment action. Plaintiff appeals from so much of an order of the Civil Court as, upon consolidating the three actions for purposes of disposition of the motion, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint in the above-captioned action.

The record indicates that defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against plaintiff and a number of other providers, as well as a number of allegedly injured assignors, asserting a fraudulent insurance scheme involving three separate car accidents, including the accident on February 19, 2011. In a judgment entered on default on April 16, 2012, the Supreme Court declared that plaintiff and a number of other providers were not entitled to recover no-fault benefits arising out of the three accidents. In light of the default declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). “[A] declaratory judgment is a conclusive final determination, notwithstanding that it was entered on default, since res judicata [*2]applies to a judgment taken by default which [as in the present case] has not been vacated” (EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d at 3).

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

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

Decision Date: July 14, 2015

Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated January 23, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action are denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth, and twenty-first through thirty-sixth causes of action.

In support of its motion, defendant submitted, among other things, two independent medical examination reports, one from a chiropractor and one from an orthopedist, which set forth a factual basis and a medical rationale for the examiners’ determination that there was a lack of medical necessity for the respective services provided (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]). However, the medical affidavits submitted by plaintiffs in opposition were sufficient to raise a triable issue of fact as to the medical necessity of the claims at issue (see Huntington Med. Plaza, P.C. v Travelers Indem. Co., 43 Misc 3d 129[A], 2014 NY Slip Op 50527[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Brooklyn Chiropractic & Sports Therapy, P.C. v A. Cent. Ins. Co., 39 Misc 3d 148[A], 2013 NY Slip Op 50904[U] [App Term, 9th & 10th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing plaintiffs’ first through eighteenth and twenty-first through thirty-sixth causes of action are denied.

Tolbert, J.P., Marano and Connolly, JJ., concur.

Decision Date: July 13, 2015

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 6, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint. In support of its motion, defendant

submitted an affidavit by a third-party claims adjuster, who described her office’s procedure for generating and mailing denial of claim forms for defendant, and established that the NF-10 forms which denied the claims at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Defendant also proffered an affirmed medical report by the doctor who had performed an independent medical examination (IME) on defendant’s behalf, which report set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]).

In opposition, plaintiff failed to submit medical evidence sufficient to raise a triable issue of fact as to medical necessity (see e.g. Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 9th & 10th Jud Dists 2013]). Contrary to the determination of the District Court, the opposing affirmation of plaintiff’s doctor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc [*2]3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 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 & 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 & 11th Jud Dists 2007]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2015

[*1]

Healthy Way Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 51049(U)

Decided on July 7, 2015

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 July 7, 2015

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

PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-2164 Q C

Healthy Way Acupuncture, P.C. as Assignee of ELSIE CAMBERO, Appellant, July 7, 2015

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 12, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s cross motion to, among other things, disqualify defendant’s law firm.

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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and implicitly denying plaintiff’s cross motion.

For the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51315[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), the order is affirmed.

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

Decision Date: July 07, 2015