Decided on August 8, 2014

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 (Katherine A. Levine, J.), entered June 24, 2010. 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 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 summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity and the workers’ compensation fee schedule. 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 medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff. 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 (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., Weston and Aliotta, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 12, 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 moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied based upon plaintiff’s failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion, arguing that defendant had failed to timely request EUOs and timely deny the claims, and that defendant did not demonstrate a good reason for requesting the verification. The Civil Court denied defendant’s motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.

The affidavit submitted by defendant’s attorney in support of defendant’s motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (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]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olemur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, the affidavit by defendant’s litigation examiner established, based upon her personal knowledge, that defendant’s procedures for mailing (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C., 17 Misc 3d at 17-18) denial of claim forms had been followed.

To the extent that plaintiff argued that defendant’s EUO scheduling letters had been untimely, a review of the record reveals that defendant received the claim form which sought reimbursement in the amount of $574.65 on April 4, 2011 and mailed its first EUO scheduling letter on May 3, 2011, 21 business days later. Requests for additional verification are untimely if [*2]not made within 15 business days of the insurer’s receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). Since the first EUO request was six days late, defendant’s time to pay or deny this claim was reduced from 30 calendar days to 24 calendar days (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [l]). Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed its denial of claim form 11 days after plaintiff had failed to appear for the final scheduled EUO. With respect to the claim which sought reimbursement in the amount of $963.24, defendant demonstrated that it had received that claim on April 11, 2011 and had mailed the initial EUO scheduling letter on May 3, 2011, 16 business days later. Consequently, defendant’s time to pay or deny this claim was reduced to 29 calendar days. Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed the denial of the $963.24 claim 11 days after plaintiff had failed to appear for the final scheduled EUO. Finally, defendant received the claim which sought reimbursement in the amount of $1,150 on May 19, 2011 and denied it on June 13, 2011. Consequently, each of defendant’s denial of claim forms was timely mailed.

Furthermore, inasmuch as defendant demonstrated that plaintiff had failed to respond in any way to defendant’s requests for EUOs, the reasonableness of these requests will not be considered (see e.g. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Morris Med., P.C. v Amex Assur. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52260[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51711[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

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

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

Decided on July 28, 2014

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 (Richard G. Latin, J.), entered January 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, defendant appeals, as limited by its brief, from so much of an order as denied defendant’s cross motion for summary judgment dismissing the complaint.

While defendant sought summary judgment on the grounds that plaintiff’s assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.^[FN1] As result, contrary to defendant’s contention on appeal, the record does not demonstrate that defendant is entitled to summary judgment dismissing the complaint on either of these grounds (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). To the extent that defendant also sought summary judgment on the ground of lack of medical necessity, we find, upon a review of the record, that defendant is also not entitled to summary judgment on that ground.

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

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

Decision Date: July 28, 2014

Footnotes

Footnote 1: We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [g] [eff Apr. 1, 2013]).

Decided on July 28, 2014

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

Decided on July 24, 2014

[*1]

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

Burke, Gordon & Conway, White Plains (Philip J. Dillon of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 22, 2013, which, insofar as appealed from as limited by the briefs, granted so much of plaintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured, defendant Gregory Huff (defendants Alleviation Medical Services, P.C. and Great Health Care Chiropractic P.C.’s assignor), based, inter alia, on Huff’s breach of a condition precedent to coverage under the policy, and a permanent stay of any arbitration or court hearing for no-fault benefits arising from the underlying alleged accident involving Huff, and declared, among other things, that the disclaimer is proper, unanimously affirmed, with costs.

The instant action arises out of an automobile accident that occurred on or about April 28, 2011, involving a vehicle insured by plaintiff. The vehicle’s owner and driver, defendant Gregory Huff, assigned his no-fault insurance benefits to defendant medical providers. Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.

We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.

In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2d Dept 2011], lv denied 17 NY3d 703 [2011]). Even if this were not the case, the affidavit of plaintiff’s investigator confirms that Huff did not seek another EUO, a fact the insured does not dispute. Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.

An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Constr. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2d Dept 2003]). Concur—Sweeny, J.P., Renwick, Andrias, Richter and Kapnick, JJ.

Decided on July 16, 2014

Defendant, as limited by its brief, appeals from so much of an amended order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), dated July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Amended order (Joseph E. Capella, J.), dated July 3, 2013, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

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 his counsel, 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]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (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]). Plaintiff’s remaining arguments, to the extent properly considered, are lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

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

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

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered October 2, 2013, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint, in which the plaintiff sought to recover no-fault medical payments from the defendant, by tendering proof that the claim was neither paid nor denied within 30 days of the defendant’s receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on the alleged intoxication of the plaintiff’s assignor at the time of the accident by the issuance of a denial within 30 days of the receipt of additional verification it requested concerning the claim (see Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 660 [2008]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017). Although, as the defendant acknowledges, some of the evidence it submitted was not in admissible form, it proffered an “acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897, 899 [2011]; cf. Oddo v Edo Mar. Air, 34 AD3d 774, 775 [2006]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Mastro, J.P., Chambers, Lott and Roman, JJ., concur.