Reported in New York Official Reports at Right Solution Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51860(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
NY Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 15, 2012, deemed from a judgment of the same court entered June 13, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 15, 2012 order granting the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denying the branches of defendant’s motion seeking summary judgment dismissing those causes of action, awarded plaintiff the principal sum of $2,958.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 15, 2012 as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action are denied, and the branches of defendant’s motion seeking summary judgment dismissing those causes of action are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see [*2]CPLR 5501 [c]).
The branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second and third causes of action, were supported by an affidavit executed by defendant’s litigation examiner which sufficiently described defendant’s standard mailing practices and procedures so as to establish the timely mailing of defendant’s request for additional 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]). In addition, the affidavit demonstrated that, after defendant had received the requested additional verification, defendant had timely denied the claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) on the ground that plaintiff had failed to appear for duly scheduled independent medical examinations (IMEs). Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second and third causes of action should have been granted.
With respect to plaintiff’s first cause of action, the affidavit of defendant’s litigation examiner established that defendant had timely mailed verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of this action. Consequently, 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]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2007]), and, thus, plaintiff’s first cause of action is premature. As a result, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action should also have been granted.
Accordingly, the judgment is reversed, so much of the order entered May 15, 2012 as granted the branches of plaintiff’s cross motion seeking summary judgment upon the first, second and third causes of action and denied the branch of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s cross motion seeking summary judgment upon the first, second, and third causes of action are denied and the branches of defendant’s motion seeking summary judgment dismissing those causes of action are granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 19, 2014
Reported in New York Official Reports at Coney Is. Physician Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51859(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered April 18, 2012. The order, insofar as appealed from, 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.
An affidavit submitted by defendant’s no-fault claims examiner established that, with respect to two bills for services rendered on December 22, 2009, a bill for services rendered on December 23, 2009, and a bill for $340 for services rendered from January 15, 2010 to January 21, 2010, defendant had timely mailed verification requests and follow-up verification requests (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 [*2]Jud Dists 2007]). Defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such verification had been provided to defendant. Consequently, the 30-day period within which defendant was required to pay or deny those claims 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]), and so much of the complaint as sought to recover upon those claims should have been dismissed as premature.
With respect to the remaining claims at issue, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims should have been granted.
Accordingly, 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: December 19, 2014
Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))
| Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. |
| 2014 NY Slip Op 51858(U) [46 Misc 3d 133(A)] |
| Decided on December 19, 2014 |
| 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 December 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1062 Q C
against
Ameriprise Auto & Home Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2012, deemed from a judgment of the same court entered April 4, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 7, 2012 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 $1,019.62.
ORDERED that the judgment is affirmed, with $25 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.
Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However, [*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50952[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the judgment is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 19, 2014
Reported in New York Official Reports at Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))
| Flatlands Med., P.C. v Travelers Ins. Co. |
| 2014 NY Slip Op 51856(U) [46 Misc 3d 133(A)] |
| Decided on December 19, 2014 |
| 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 December 19, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-891 K C
against
Travelers Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 7, 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 plaintiff’s first through seventh 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 appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.
It is undisputed that the claims underlying plaintiff’s first through sixth causes of action were denied well over 30 days after they had been received by defendant. Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, that it had properly tolled its time to pay or deny these claims (see 11 NYCRR 65—3.5 [b]). Consequently, defendant was not entitled to summary judgment dismissing these causes of action.
As to plaintiff’s seventh cause of action, defendant concedes on appeal that it untimely denied the claim upon which that cause of action is based and that, therefore, it is not entitled to [*2]summary judgment on this cause of action.
Finally, as to plaintiff’s eighth and ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the examination under oath scheduling letters and the denial of claim forms had been timely mailed (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]). As plaintiff raises no other issue on appeal with respect to these claims, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing these causes of action.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through seventh causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 19, 2014
Reported in New York Official Reports at EMC Health Prods., Inc. v Geico Ins. Co. (2014 NY Slip Op 51834(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 13, 2012. 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 reversed, with $30 costs, the CPLR 3212 (g) findings in favor of plaintiff are vacated, and defendant’s cross motion for summary judgment dismissing the complaint 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 on the ground that the action was premature because defendant had timely and properly requested verification and plaintiff had not responded. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, 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 whether plaintiff had responded to defendant’s verification requests.
As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims 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]) and, thus, plaintiff’s action is premature.
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 cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Reported in New York Official Reports at Skymed Med., P.C. v Tri-State Consumer Ins. (2014 NY Slip Op 51833(U))
| Skymed Med., P.C. v Tri-State Consumer Ins. |
| 2014 NY Slip Op 51833(U) [46 Misc 3d 132(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2229 Q C
against
Tri-State Consumer Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 11, 2012. The order denied 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 granted.
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 defendant’s motion for summary judgment dismissing the complaint.
The affidavits submitted by defendant in support of its motion established that defendant had timely mailed requests and follow-up requests for verification related to the claim at issue (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]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims 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]), and, thus, plaintiff’s action is premature.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Reported in New York Official Reports at Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))
| Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. |
| 2014 NY Slip Op 51832(U) [46 Misc 3d 132(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2135 K C
against
Clarendon National Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 27, 2012. The order, insofar as appealed from, 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (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]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Defendant also 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 services at issue. Plaintiff did not rebut defendant’s prima facie showing. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 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]).
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Reported in New York Official Reports at Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))
| Health Needles Acupuncture, P.C. v Praetorian Ins. Co. |
| 2014 NY Slip Op 51831(U) [46 Misc 3d 132(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2086 Q C
against
Praetorian Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 13, 2012. 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 branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action 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, arguing that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. On appeal, plaintiff argues that its motion should have been granted and that defendant’s cross motion should have been denied.
Contrary to plaintiff’s argument on appeal, defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).
However, plaintiff correctly argues that the branch of its motion seeking summary judgment on its first cause of action should have been granted, and the branch of defendant’s cross motion seeking to dismiss that cause of action should have been denied. The affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment, as it demonstrated that the claim form upon which that cause of action was based had been mailed to and received by defendant, which failed to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition, defendant did not demonstrate that it had timely denied that claim. While defendant argues that it tolled its time to pay or deny the claim at issue by requesting verification, the sole letter submitted by defendant in support of this contention merely notified plaintiff that defendant was delaying consideration of the claim pending an independent medical examination and an examination under oath of plaintiff’s assignor. Contrary to defendant’s argument on appeal, this letter did not toll the statutory time [*2]period within which defendant was required to pay or deny the claim (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch
of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Reported in New York Official Reports at Medical Assoc., P.C. v Geico Gen. Ins. Co. (2014 NY Slip Op 51829(U))
| Medical Assoc., P.C. v Geico Gen. Ins. Co. |
| 2014 NY Slip Op 51829(U) [46 Misc 3d 131(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2000 K C
against
Geico General Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for
summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
Defendant’s moving papers established that defendant had timely denied the claim at issue (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]) based on a lack of medical necessity. However, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
Reported in New York Official Reports at Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U))
| Cherkin v Praetorian Ins. Co. |
| 2014 NY Slip Op 51828(U) [46 Misc 3d 131(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1980 Q C
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 12, 2012. The order denied 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
Defendant sufficiently established the timely mailing of the denial of claim forms (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 there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014