Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. The order denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.

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

Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and

defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.

After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion

for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.

Moreover, the Civil Court properly determined that the 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]; 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]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]). While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.

Accordingly, the order is affirmed.

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

Decision Date: August 20, 2014

[*1]

Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co.

2014 NY Slip Op 51322(U) [44 Misc 3d 142(A)]

Decided on August 20, 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 August 20, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-653 K C

Delta Diagnostic Radiology, P.C. as Assignee of JEAN BROUARD, Respondent,

against

National Liability & Fire Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary

judgment dismissing the complaint on the ground that plaintiff’s assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

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 implicit determination with respect thereto.

The papers submitted by defendant were sufficient to establish 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]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.

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: August 20, 2014

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 18, 2013. The order implicitly 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.

Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.

The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the 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]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.

Accordingly, the order is affirmed.

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

Decision Date: August 20, 2014

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 3, 2012, deemed from a judgment of the same court entered September 28, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 3, 2012 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion to, among other things, disqualify defendant’s law firm from representing defendant in this action, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). 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 entered August 3, 2012 granting defendant’s motion and denying plaintiff’s cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

As to defendant’s motion for summary judgment, we find that, contrary to plaintiff’s arguments on appeal, defendant submitted sufficient proof to show that the EUO scheduling letters and the denial of claim form 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]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). Therefore, and as plaintiff’s remaining contentions with respect to this motion lack merit, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

In light of the foregoing, plaintiff’s request that defendant’s law firm be disqualified based [*2]on the attorney/witness rule is “moot since, summary judgment having been granted, there will be no trial of this matter” (Quiros v Mount St. Michael Academy, 303 AD2d 185, 186 [2003]; see also Lombino v Town Bd. of Town of Rye, 206 AD2d 462 [1994]). In any event, plaintiff failed to establish that disqualification of defendant’s law firm was warranted (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; see also e.g. Magnus v Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608 [2004]; Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]; Matter of Cowen & Co. v Tecnoconsult Holdings, 234 AD2d 86 [1996]; Talvy v American Red Cross in Greater NY, 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).

Accordingly, the judgment is affirmed.

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

Decision Date: August 20, 2014

[*1]

Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2014 NY Slip Op 51310(U) [44 Misc 3d 141(A)]

Decided on August 20, 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 August 20, 2014

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-947 K C

Natural Therapy Acupuncture, P.C. as Assignee of FRANTZ PRAMPIN, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 14, 2012. 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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (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]), and the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear. Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed.

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

Decision Date: August 20, 2014

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 26, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made 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 plaintiff’s favor 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, among other things, summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is premature due to plaintiff’s failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and limited the issues for trial.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 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. Plaintiff did not oppose defendant’s cross motion. Contrary to the Civil Court’s statement, there is nothing in the record which would require defendant to prove that the copies of the verification letters annexed to defendant’s cross motion had not been tampered with or altered (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 [1994]; People v Dicks, 100 AD3d 528 [2012]; Rotanelli v Longo, 210 AD2d 392 [1994]). As the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [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]), plaintiff’s action is premature.

Accordingly, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: August 20, 2014

Matter of Unitrin Direct/Warner Ins. Co. v Brand

2014 NY Slip Op 05887 [120 AD3d 698]

August 20, 2014

Appellate Division, Second Department

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

As corrected through Wednesday, September 24, 2014

[*1]

In the Matter of Unitrin Direct/Warner Insurance Company, Respondent, v Joseph Brand, Appellant.

Elovich & Adell, Long Beach, N.Y. (A. Trudy Adell, Mitchel Sommer, and Darryn Solotoff of counsel), for appellant.

Breen & Clancy, Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for respondent.

In a proceeding pursuant to CPLR 7503 to permanently stay arbitration of a claim for supplementary uninsured/underinsured motorist benefits, Joseph Brand appeals from an order of the Supreme Court, Nassau County (Diamond, J.), dated November 15, 2012, which granted the petition.

Ordered that the order is affirmed, with costs.

On October 17, 2011, Joseph Brand was operating a bicycle on Rockley Boulevard in Sarasota, Florida, when he was struck by a motor vehicle owned and operated by Thomas Collins. Brand sustained multiple serious injuries. Collins is a resident of Florida and his motor vehicle is registered in Florida. Brand is a resident of New York.

At the time of the accident, Collins maintained automobile liability insurance in Florida with Allstate Insurance Company with liability limits for bodily injury in the amount of $100,000 per person/$300,000 per occurrence and supplementary uninsured/underinsured motorist (hereinafter SUM) coverage for bodily injury in the amount of $100,000 per person/$300,000 per occurrence. Allstate tendered the bodily injury policy limit in the amount of $100,000 in settlement of Brand’s claim.

At the time of the accident, Brand maintained automobile insurance coverage with the petitioner Unitrin Direct/Warner Insurance Company (hereinafter Unitrin) with policy limits for bodily injury also of $100,000 per person/$300,000 per occurrence and SUM coverage for bodily injury also of $100,000 per person/$300,000 per occurrence. Brand claimed that his injuries exceeded the limits of Collins’ policy, and demanded from the American Arbitration Association in New York arbitration of a claim for SUM benefits under his Unitrin policy. In response to Brand’s demand for arbitration, Unitrin moved for a permanent stay of arbitration on the ground that the SUM coverage was not triggered under New York law because the offending vehicle was not underinsured since Collins’ bodily injury liability coverage under the Allstate policy equaled Brand’s bodily injury liability coverage under the Unitrin policy. Unitrin argues that the “center of [*2]gravity”/”grouping of contacts” analysis demonstrates that New York is the forum that has the most significant contact to the dispute such that New York law should govern this matter. Brand contends, however, that under the “center of gravity”/”grouping of contacts” analysis, Florida law should control.

It is undisputed that this conflict of law question, although arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). Generally, “the courts apply the more flexible ‘center of gravity’ or ‘grouping of contacts’ inquiry, which permits consideration of the ‘spectrum of significant contacts’ in order to determine which State has the most significant contacts to the particular contract dispute” (id. at 58-59, quoting Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]). “In general, significant contacts in a case involving contracts, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties” (id. at 59). As to insurance contracts specifically, significance has been attached to the “ ’local law of the state which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 [of the Restatement] to the transaction and the parties’ ” (Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 318 [1994], quoting Restatement [Second] of Conflict of Laws § 193). In the case of a noncommercial vehicle, which is by its nature mobile, the principal location of the insured risk is the place where the vehicle is to be principally garaged (Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 59).

Here, as the Supreme Court correctly noted, the insurance contract at issue was written to conform to the laws, rules and regulations of New York State, and was obtained in New York by Brand, a New York resident, from an insurance company doing business in New York. Furthermore, Brand served the demand for SUM arbitration upon the American Arbitration Association in New York. Applying the grouping of contacts inquiry to these facts, New York has the most significant contacts with the parties and the contract. Indeed, such a conclusion would be in conformity with the reasonable expectations of the contracting parties.

Brand’s reliance on Florida as the situs of the accident confuses the contacts that might be significant in a tort case with those that are material in a contract dispute (see Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]). New York law applies herein.

Under New York law, SUM coverage is only triggered where the bodily injury liability insurance limits of the policy covering the tortfeasor’s vehicle are less than the liability limits of the policy under which a party is seeking SUM benefits (see Insurance Law § 3420 [f] [2] [A]; Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 607-608 [2009]; Matter of AIU Ins. Co. v Hibbert, 85 AD3d 779 [2011]). Here, Collins’ Allstate policy limits for bodily injury were identical to Brand’s Unitrin policy limits for bodily injury. Hence, Collins does not qualify as an underinsured driver.

Accordingly, the Supreme Court properly granted the petitioner’s application to permanently stay arbitration of a claim for SUM benefits.

Brand’s contention that Unitrin’s payment of first party benefits constituted an agreement that Florida law controls is without merit, as Unitrin’s payment of first party benefits in the first instance was required pursuant to 11 NYCRR 65-3.12 (a) (3) and (b). To the extent there was a dispute between Unitrin and Allstate as to the priority of first party benefits, that is a matter to be resolved between the insurers (see Insurance Law § 5105; 11 NYCRR 65-3.12 [b]; 65-4.11).

Brand’s remaining contentions are without merit. Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.

New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co.

2014 NY Slip Op 24277 [45 Misc 3d 758]

August 14, 2014

Lebovits, J.

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

As corrected through Wednesday, November 26, 2014

[*1]

New Capital Supply, Inc., as Assignee of Jacques Gladys, Plaintiff, v State Farm Mutual Automobile Ins. Co., Defendant.

Civil Court of the City of New York, New York County, August 14, 2014

APPEARANCES OF COUNSEL

Rivkin Radler LLP, Uniondale (Shana Slawitsky of counsel), for defendant.

Gary Tsirelman P.C., Brooklyn (Irena Golodkeyer of counsel), for plaintiff.

Gerald Lebovits, J.

Plaintiff brought this no-fault benefits action seeking {**45 Misc 3d at 759}reimbursement for $844.13 for medical services rendered to assignor, Jacques Gladys. Plaintiff submitted to defendant one bill for date of service May 31, 2011. Defendant denied the claim on the basis that the medical provider failed to appear for two scheduled examinations under oath (EUOs).

Defendant moves for summary judgment under CPLR 3212 on the ground that the medical provider failed to appear for two scheduled EUOs and, thus, that plaintiff breached a condition precedent to coverage. Plaintiff’s most persuasive argument in opposition is that defendant failed to prove the provider’s nonappearance for the EUOs. Plaintiff argues that Michael Sirignano’s affirmation is insufficient because, plaintiff argues, he has no personal knowledge of the provider’s nonappearance for the EUOs. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Without moving for disclosure, plaintiff seeks disclosure about defendant’s special investigation unit (SIU) file and its SIU investigation and claims practices before, it urges, it can properly oppose defendant’s summary judgment motion. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 16.)

[*2]

After oral argument, the court asked the parties to submit memorandums of law about whether Sirignano’s affirmation comports with an Appellate Term, Second Department decision: Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Mar. 21, 2013]). Since oral argument, only defendant submitted a memorandum of law on this issue.

In Alrof, the court determined that the “affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff.” (Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.) The court held that “[i]t is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR 3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment.” (Id. at *1-2.)

The proof the Alrof court considered was an affidavit from Vincent F. Gerbino, a partner at Bruno, Gerbino & Soriano, LLP. In his affidavit, Gerbino states that he has “personal knowledge of the facts at issue . . . based on [his] review of the file and [his] knowledge of office practices and procedures.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino states that {**45 Misc 3d at 760}the “office mailed correspondence to Jonathan Rosario [the assignor] notifying that he was scheduled for an EUO on July 18, 2008, at 10:00 AM. He did not appear on this date. Therefore, . . . this office . . . re-scheduled . . . [the] EUO on July 30, 2008, at 1:00PM.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.) Gerbino thus states that “Jonathan Rosario failed to appear at both . . . EUO’s.” (Exhibit 2, Gerbino aff, Mar. 23, 2009, ¶ 3.)

Since Alrof, the court revisited the issue of the sufficiency of an attorney’s affirmation to prove nonappearance at EUOs in Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (40 Misc 3d 130[A], 2013 NY Slip Op 51123[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, July 5, 2013]). In Bright Med., the court held the court below properly denied defendant’s summary judgment motion because “defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question.” (Id., citing Alrof, 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U], *1.)

The proof the Bright Med. court considered was the affirmation of Michael A. Callinan. (Defendant’s reply affirmation, exhibit 9.) Callinan states that the

“EUO for July 14, 2009, was scheduled at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747. I was present at your affiant’s office . . . on July 14, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶¶ 15-16.)

Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff failed to appear for a scheduled EUO on July 14, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan’s office scheduled the second EUO on August 10, 2009. (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 16.) Callinan states that he “was present at your affiant’s office, located at 445 Broad Hollow Road, Melville, New York 11747, the location of the scheduled EUO, on August 10, 2009, the date of the scheduled EUO. Further, had the EUO proceeded, I would likely have been the attorney assigned to conduct said [*3]EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Callinan states that “[b]ased on this personal knowledge, as well as a review of the file maintained by our office . . . I know that Plaintiff, Bright Medical Supply Co., failed to appear for a scheduled EUO on August 10, 2009.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.)

{**45 Misc 3d at 761}Since Bright Med., the court determined that the affirmation of defendant’s attorney “who was present in his office to conduct plaintiff’s EUO on the scheduled dates . . . was sufficient to establish that plaintiff had failed to appear.” (Natural Therapy Accupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, Jan. 28, 2014].) In Natural Therapy, the court considered the affirmation of Elizabeth Adels, a partner at McDonnell & Adels, PLLC. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 1.) Adels states that on “April 29, 2010, Plaintiff was scheduled to submit to an EUO . . . . I was present in the office on this date in order to conduct the EUO of Plaintiff. No one affiliated with Plaintiff appeared for the EUO scheduled for April 29, 2010.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states that defendant rescheduled the EUO for May 25, 2010. (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.) Adels states

“I was present in the office on this date in order to conduct the rescheduled EUO of plaintiff. Once again, no one affiliated with Plaintiff appeared for the EUO rescheduled for May 25, 2010. If Plaintiff had appeared for the scheduled EUOs, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Defendant’s additional submission, Adels affirmation, Oct. 12, 2011, ¶ 3.)

This court must decide whether Michael Sirignano’s affirmation is sufficient, under Alrof and its progeny,^[FN*] to prove the provider’s nonappearance for the EUOs. Also, this court must also determine whether Sirignano has personal knowledge of the provider’s nonappearance at the EUOs.

Sirignano’s affirmation is sufficient to prove the provider’s nonappearance for the two EUOs. Sirignano has personal knowledge of the provider’s nonappearance at the EUOs. Sirignano states the following:{**45 Misc 3d at 762}

“3. On July 27, 2011, plaintiff was scheduled to submit to an EUO at the offices of Rivkin Radler located 926 RXR Plaza, Uniondale, New York 11556, at 10:00 o’clock in the forenoon of that day [sic]. I was present in the office on this date. No one affiliated with the Plaintiff appeared for the scheduled EUO. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO [*4]of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.

“4. Thereafter, State Farm rescheduled the EUO for August 30, 2011. I was present in the office on this date. Again, no one affiliated with the Plaintiff appeared for the scheduled EUO on August 30, 2011. If Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs to conduct the EUO of Plaintiff.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶¶ 3-4.)

Sirignano has personal knowledge: He was present on both dates, July 27, 2011 and August 30, 2011. Plaintiff did not appear on either date. Like the attorney in Natural Therapy, Sirignano was present on both dates that plaintiff was scheduled for the EUO. Had plaintiff appeared, Sirignano would have conducted plaintiff’s EUO. Or, he would have assigned one of the other attorneys responsible for conducting EUOs to conduct plaintiff’s EUO.

Unlike the attorney in Alrof who explained in conclusory language that plaintiff failed to appear for EUOs, Sirignano explains his basis for knowing that plaintiff failed to appear for two EUOs.

Sirignano does not equivocate like the attorney in Bright Med. did: “I would likely have been the attorney assigned to conduct said EUO.” (Exhibit 9, Callinan affirmation, July 28, 2010, ¶ 17.) Sirignano states that “[i]f Plaintiff had appeared for the scheduled EUO, I would have conducted the EUO of Plaintiff or assigned one of the other attorneys responsible for conducting EUOs.” (Notice of motion, exhibit 3, Sirignano affirmation, July 11, 2012, ¶ 4.)

Plaintiff argues that Sirignano’s “potential assignment [of plaintiff’s EUO] diminishes [his] credibility as to his personal knowledge that no one affiliated with Plaintiff appeared for the{**45 Misc 3d at 763} scheduled EUOs.” (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano’s statement does not diminish his credibility, in fact it highlights his credibility.

Plaintiff’s other arguments are also unpersuasive. That the EUO scheduling letters indicate that the EUOs were scheduled at Rivkin Radler LLP’s office in Uniondale, New York, “Attn. Barry Levy, Esq.” is of no consequence. (See notice of motion, exhibit 1.) Plaintiff’s argument—that based on the EUO letters Barry Levy, Esq. was the attorney who would conduct the EUO—is misplaced. (Golodkeyer affirmation, Sept. 12, 2013, ¶ 24.) Sirignano states that he was responsible for plaintiff’s EUO.

That the EUO scheduling letters indicate that the plaintiff call “JUDY AUBIN . . . no later than seven days prior to this examination to confirm your attendance” is also of no consequence. Sirignano states that he was responsible for plaintiff’s EUO. In any event, plaintiff does not allege that it attempted to confirm the EUO appointments with Ms. Aubin or anyone else at Rivkin Radler LLP.

Nor is it significant that Sirignano does not describe the “check-in procedure that is followed by the law firm regarding EUO attendance.” (Golodkeyer affirmation, Sept. 12, [*5]2013, ¶ 25.) Sirignano need not describe the firm’s check-in procedure for EUOs. Sirignano need only demonstrate, through his personal knowledge, that the plaintiff failed to appear for two scheduled EUOs.

Plaintiff did not respond to defendant’s request for EUOs. (See Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists, Dec. 20, 2013] [“(P)laintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs . . . defendant is entitled to summary judgment”], citing Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011].)

Plaintiff’s request for defendant’s special investigation unit file, the SIU investigation, and its claims practices is not necessary to oppose defendant’s summary judgment motion: “Since plaintiff does not claim to have responded in any way to the EUO request, its objections regarding the EUO requests will not now be heard . . . and therefore discovery relevant to the {**45 Misc 3d at 764}reasonableness of the EUO requests was not necessary to oppose the motion.” (Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 39 Misc 3d 142[A], 2013 NY Slip Op 50763[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, May 6, 2013], citing CPLR 3212 [f] and Crescent Radiology, 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U], *1; Natural Therapy, 42 Misc 3d 137[A], 2014 NY Slip Op 50134[U], *1.) Plaintiff did not respond to defendant’s EUO requests; therefore, plaintiff cannot now object to defendant’s EUO requests. Also, plaintiff did not move to compel disclosure. Plaintiff’s request, raised only in its opposition papers, is denied.

Defendant proved that it timely and properly mailed the EUO letters to plaintiff. Defendant proved that plaintiff failed to appear for the EUOs on July 27, 2011, and August 30, 2011. Defendant also proved that it timely and properly mailed the denial, NF-10, to plaintiff.

Plaintiff’s counsel’s affirmation, coming from an individual without personal knowledge, has no probative value. Plaintiff’s counsel’s affirmation creates no material issue of fact for trial.

Defendant’s motion is granted.

Footnotes

Footnote *:One of the cases defendant attaches to its memorandum of law pre-dates Alrof. (Exhibit 1, Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 130[A], 2012 NY Slip Op 51276[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012].) Also, in the cases defendant attaches on the Alrof issue—the sufficiency of an affirmation or affidavit to demonstrate personal knowledge of the assignor’s or the provider’s nonappearance at an EUO—the parties never raised the Alrof issue on appeal. (Exhibit 4.)

Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 05779 [120 AD3d 561]

August 13, 2014

Appellate Division, Second Department

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

As corrected through Wednesday, September 24, 2014

[*1]

Mount Sinai Hospital, as Assignee of Ana Rodriguez, Appellant, v New York Central Mutual Fire Insurance Company, Respondent.

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Freiberg, Peck & Kang, LLP, Armonk, N.Y. (Yilo J. Kang of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated October 16, 2012, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

In March 2011, Ana Rodriguez, who was insured under a policy of automobile insurance issued by the defendant, New York Central Mutual Fire Insurance Company (hereinafter New York Central), allegedly was injured in an automobile accident. In November 2011, she received treatment at a hospital facility of the plaintiff, Mount Sinai Hospital (hereinafter Mount Sinai). In early December 2011, a few days after Mount Sinai rendered this treatment, it sought payment for it. Mount Sinai’s third-party biller, The Outsource Group (hereinafter Outsource), sent a Form UB-04 and a letter requesting payment to New York Central. Twenty days after New York Central received the request, it requested verification of Mount Sinai’s claim. Approximately one week after New York Central sent the verification request, it received from Outsource more than 100 pages of documents, including records of Rodriguez’s treatment at Mount Sinai and various forms Rodriguez had completed there. New York Central did not request further verification. On January 27, 2012, less than 30 days after it received these records, New York Central issued a denial of the claim on a Form NF-10. The Form NF-10 was, in all substantial respects, complete.

Two months later, on March 26, 2012, Mount Sinai, which was now represented by a different third-party biller, issued another request for payment of its bill for the treatment it had rendered to Rodriguez. This time, Mount Sinai’s third-party biller issued the request on a Form NF-5. New York Central ignored this request for payment, and, in May 2012, Mount Sinai, as assignee of Rodriguez, commenced this action seeking payment. Mount Sinai eventually moved for summary judgment on the complaint, and New York Central cross-moved for summary judgment dismissing [*2]the complaint. The Supreme Court denied Mount Sinai’s motion and granted New York Central’s cross motion. Mount Sinai appeals. We reverse.

In Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (106 AD3d 157 [2013]), this Court summarized the claim procedure under New York’s “no-fault” insurance scheme:

“Pursuant to the regulations promulgated by the Superintendent of Insurance to implement the No-Fault Law (Insurance Law art 51), an injured party, or that person’s assignee, must submit a written notice of claim to an insurer no later than 45 days after services are rendered (11 NYCRR 65-2.4). The written notice required to obtain first party benefits ‘shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS Form N-F 2) . . . or by the insurer’s receipt of a completed hospital facility form (NYS Form N-F 5)’ (11 NYCRR 65-3.3 [d]). ‘[P]roof of claim . . . shall include verification of all of the relevant information requested’ (11 NYCRR 65-3.8 [a] [1]). ‘An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form’ (11 NYCRR 65-3.5 [f]). However, 11 NYCRR 65-3.5 (g) provides that ‘[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant [NYS Form N-F 2] and a verification of hospital treatment (NYS form NF-4), an insurer shall accept a completed hospital facility form (NYS form NF-5) (or an NF-5 and uniform billing form [UBF-1] which together supply all the information requested by the NF-5) submitted by a provider of health services with respect to the claim of such provider.’

“Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). A no-fault insurance carrier waives its defenses, other than those based on the complete absence of coverage (e.g., a defense to the effect that it never wrote a policy for the claimant), if it fails to deny a no-fault claim, or seek verification, within 30 calendar days after having received proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c] . . . ).

“When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer’s receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it. Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). Where there is a timely original request for verification, but no response to the request for verification is received [*3]within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must decide whether to pay or deny the claim is indefinitely tolled. Thus, when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim is tolled and does not begin to run. Accordingly, any claim for payment by the medical service provider after two timely requests for verification have been sent by the insurer subsequent to its receipt of an N-F 5 form from the medical service provider is premature, if the provider has not responded to the requests. Nothing in the rules requires a second follow-up, that is, a third request for verification.

“However, a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim. The ‘UBF-1’ form referred to in 11 NYCRR 65-3.5 (g) is the predecessor of the current ‘UB-04’ form. Under 11 NYCRR 65-3.5 (g), a UBF-1/UB-04 form together with an N-F 5 form must be accepted by a no-fault insurer. The regulation does not state that a UBF-1/UB-04 form alone must be treated as the ‘functional equivalent’ of an N-F 5 form” (id. at 162-164 [citations omitted]).

Here, in reliance on Sound Shore, Mount Sinai contends that its billing through Outsource in December 2011 on a Form UB-04 did not commence the 30-day period in which New York Central was required to pay, deny, or request verification of Mount Sinai’s claim. Instead, Mount Sinai contends, the 30-day period commenced in March 2012, when Mount Sinai submitted a billing request on a Form NF-5. In effect, Mount Sinai contends, New York Central’s denial of claim in January 2012 did not deny anything; there was no claim submitted in December to deny. Finally, inasmuch as Mount Sinai established, prima facie, that New York Central did not pay, deny, or request verification of the March claim within 30 days after receiving it, New York Central had waived its defenses, so summary judgment on the complaint was required (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 41 [2013]).

New York Central, by contrast, contends that the 30-day period commenced when it received the Form UB-04 in December 2011, that it timely requested verification of the claim, and that, after it received the medical records, it timely denied the claim in January 2012. Mount Sinai could not commence the 30-day clock anew by submitting the same claim several months later (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]).

We conclude that the Supreme Court erred in denying Mount Sinai’s motion for summary judgment on the complaint and in granting New York Central’s cross motion for summary judgment dismissing the complaint. Under our decision in Sound Shore, the 30-day period for New York Central to pay or deny the claim did not begin to run until March 26, 2012, when Mount Sinai submitted the Form NF-5, which contained the information needed. Because New York Central did not pay or deny the claim within 30 days thereafter, it was precluded from raising defenses. In other words, the defective “claim” submitted in December 2011 did not start the 30-day clock, so New York Central’s denial in January 2012 was of no effect (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921, 921 [2014]).

In summary, in support of its motion for summary judgment on the complaint, Mount Sinai satisfied its prima facie burden of establishing that New York Central received its Form NF-5 in March 2012 and that payment of the no-fault benefits was overdue because the claim was neither [*4]paid nor denied within 30 days (see Westchester Med. Ctr. v Allstate Ins. Co., 114 AD3d 672, 672-673 [2014]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 40-41). In opposition, New York Central failed to raise a triable issue of fact (see Westchester Med. Ctr. v Allstate Ins. Co., 114 AD3d at 672-673).

Moreover, the Supreme Court should have denied New York Central’s cross motion for summary judgment dismissing the complaint. Mount Sinai’s complaint was predicated solely upon New York Central’s failure to pay or deny the March 2012 claim within 30 days of receipt. New York Central failed to establish, prima facie, that it paid or denied that claim within 30 days after receipt. Accordingly, New York Central was not entitled to summary judgment dismissing the complaint (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; cf. Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d at 442).

In light of our determination, we need not address Mount Sinai’s remaining contention. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.

[*1]

Okslen Acupuncture P.C. v Travco Ins. Co.

2014 NY Slip Op 51209(U) [44 Misc 3d 135(A)]

Decided on August 11, 2014

Appellate Term, First 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 August 11, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570417/13

Okslen Acupuncture P.C., a/a/o Keiana Hardy, Plaintiff-Appellant, –

against

Travco Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered August 16, 2011, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered August 16, 2011, affirmed, with $10 costs.

This action seeks recovery of assigned first-party no-fault benefits arising from acupuncture services provided to plaintiff’s assignor by a licensed acupuncturist. The affidavits submitted by defendant in support of its motion for summary judgment established prima facie that defendant timely and properly denied plaintiff’s no-fault claim to the extent plaintiff sought reimbursement in an amount greater than that authorized by the workers’ compensation fee schedule applicable to physicians who render acupuncture services (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Gen. Ins. Co., 16 Misc 3d 23 [2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the claim denial or the calculation of the fee. With respect to the latter, the affirmation submitted by plaintiff’s counsel did not address the nature of the acupuncture services rendered to plaintiff’s assignor, much less demonstrate that those services were not “similar” to acupuncture services generally provided by physicians, so as to exempt plaintiff from the reach of the physicians’ workers’ compensation fee schedule (see 11 NYCRR 68.5[b]). Accordingly, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – was properly granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: August 11, 2014