Decided on October 5, 2016

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, Kings County (Robin S. Garson, J.), entered March 11, 2014. 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.

For the reasons stated in High Quality Med. Supplies, Inc., as Assignee of Charles Botwee v Mercury Ins. Group (— Misc 3d —, 2016 NY Slip Op — [appeal No. 2014-1081 K C], decided herewith), defendant has not demonstrated its entitlement to summary judgment dismissing the first cause of action.

Defendant sought summary judgment dismissing the remaining two causes of action on the ground that plaintiff’s attempt to recover upon the claims underlying these causes of action is premature because verification is outstanding (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, the affidavits submitted by defendant were insufficient to establish as a matter of law that defendant had mailed verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant has not demonstrated its entitlement to summary judgment dismissing the second and third causes of action.

Accordingly, the order is affirmed.

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

Decided on October 5, 2016

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 (Ulysses Bernard Leverett, J.), entered March 18, 2014. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the sixth through eighth causes of 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, plaintiff appeals, as limited by its brief, from so much an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the sixth through eighth causes of action on the ground that plaintiff had failed to provide requested verification.

For the reasons stated in Compas Med., P.C., as Assignee of Kevin Jacques v Travelers Ins. Co. (— Misc 3d —, 2016 NY Slip Op — [appeal No. 2014-766 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on October 5, 2016

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 (Ulysses Bernard Leverett, J.), entered March 18, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant was not required to pay or deny plaintiff’s claims upon receipt of a “partial response” to defendant’s verification requests (see 11 NYCRR 65-3.8 [a] [1]; [b] [3]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004] [“A claim need not be paid or denied until all demanded verification is provided”]). To the extent that plaintiff asserts that certain of defendant’s requests were inappropriate, that argument also lacks merit, as plaintiff did not allege, much less demonstrate, that it objected to such requests during claims processing (see Rogy Med., P.C. v Clarendon Natl. Ins. Co., 43 Misc 3d 133[A], 2014 NY Slip Op 50629[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [“inaction is an improper response to a verification request, and therefore plaintiff’s objections regarding the requests will not now be heard”]).

Contrary to plaintiff’s remaining contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the initial and follow-up verification requests had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that defendant had not received the requested verification.

Accordingly, the order is affirmed.

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

Decided on September 28, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated August 18, 2015, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), August 18, 2015, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action 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 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]). Defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts 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).

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]).

We have considered plaintiff’s remaining arguments and find them to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on September 28, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered February 19, 2014. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms at issue.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms at issue is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity or, in the alternative, for “partial summary judgment on the issue of Defendant’s timely denials.” Plaintiff cross-moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms at issue. In an order entered February 19, 2014, the Civil Court denied plaintiff’s cross motion in its entirety, but, in effect, granted the branch of defendant’s motion implicitly seeking a finding, pursuant to CPLR 3212 (g), that defendant had issued timely denials, and limited the trial to plaintiff’s “prima facie burden” and the issue of medical necessity. Plaintiff appeals, as limited by its brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission of the claim forms to defendant.

As plaintiff argues, the submission of the claim forms at issue to defendant was established by the denials, annexed by both defendant and plaintiff, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Thus, in the particular circumstances of this case, including the fact that the Civil Court has made an implicit CPLR 3212 (g) finding as to the timely mailing of the denials and has limited the issues for trial, we find that the court should also have made a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission of the claim forms to defendant (see New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co., 42 Misc 3d 1 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms 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 (Carmen R. Velasquez, J.), entered April 10, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without 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 denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action.

Contrary to plaintiff’s argument as to the first and fifth causes of action, the proof submitted by defendant was sufficient to demonstrate that defendant had not received requested verification and, thus, that these causes of action are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit by plaintiff’s owner, submitted in opposition to defendant’s cross motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Contrary to plaintiff’s argument with respect to the branch of its motion seeking summary judgment on its second cause of action, defendant sufficiently described its practices and procedures for the receipt of mail so as to raise an issue of fact as to whether it ever received the claim underlying the second cause of action.

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

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