Decided on May 29, 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 February 28, 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 reversed, with $30 costs, 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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations. The court stated that the only issue for trial was “the proper mailing of the denials.”

In support of its motion, defendant submitted an affidavit by its no-fault litigation examiner which established that the denial of claim forms had been timely mailed in accordance with defendant’s standard mailing 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]). 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 Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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

Decided on May 29, 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 February 28, 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 the brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. The court stated that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).

A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claims after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim forms were untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

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

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

Decided on May 29, 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 (Pamela L. Fisher, J.), entered January 31, 2012. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

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 claim at issue based on a lack of medical necessity. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

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. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

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

Decided on May 29, 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 (Nancy M. Bannon, J.), entered November 15, 2011. 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 moved for 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). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (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]; 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 order is affirmed.

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

Decided on May 29, 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 (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered January 20, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, 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, plaintiff appeals from an order of the Civil Court which granted defendant’s 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]).

Contrary to plaintiff’s sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant’s motion were sufficient to establish that 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]; see also CPLR 4518). Plaintiff’s contention that one of the affidavits submitted by defendant should not have been considered because it did not comply with CPLR 2309 (c) was not raised below and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is affirmed.

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

[*1]

Teresa M. Spina, Woodbury, N.Y. (P. Stephanie Estevez and Jeanne M. Ortega of counsel), for appellant.

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

In an action to recover no-fault benefits under two insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered September 21, 2011, as, upon reargument, in effect, vacated the determination in a prior order of the same court entered June 21, 2011, denying that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action and thereupon granted that branch of the plaintiffs’ motion.

Ordered that the order entered September 21, 2011, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the determination in the order entered June 21, 2011, denying that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is adhered to.

The plaintiffs commenced this action to recover, inter alia, the amounts billed to the defendant for medical services rendered to nonparty Chetanaben Patel, who assigned her no-fault insurance benefits to the plaintiff New York University Hospital-Tisch Institute. Only the first cause of action, related to the Patel claim, is at issue here. The plaintiffs moved for summary judgment on the complaint and, in an order entered June 21, 2011, the Supreme Court denied that branch of the motion which was for summary judgment on the first cause of action. The plaintiffs moved for leave to reargue. The Supreme Court granted the plaintiffs’ motion for leave to reargue, and, upon reargument, granted that branch of their prior motion which was for summary judgment on the first cause of action. The court concluded, upon reargument, that the defendant’s peer review report was “fatally defective” because it failed to satisfy the affirmation requirements of CPLR 2106, and that, in the absence of the peer review report or any other medical evidence, the defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ motion. The defendant appeals.

The plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting proof demonstrating that the prescribed billing forms were mailed to and received by [*2]the defendant insurer, and that the insurer failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]).

In opposition to the plaintiffs’ prima facie showing, however, the defendant insurer raised a triable issue of fact. A defendant-insurer is required either to pay or deny a claim for no-fault benefits within 30 days of “proof of claim, which shall include verification of all of the relevant information requested” (11 NYCRR 65-3.8 [a] [1]; see Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). “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” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2013]; see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). “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” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 163; see 11 NYCRR 65-3.5 [b]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317). A proper request for verification will serve to toll the 30-day statutory time period for payment of the claim (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d at 493; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]). Here, the evidence submitted by the defendant demonstrated that it received the last of the responses to its requests for additional verification on December 21, 2010, at which time the 30-day period within which it was required to pay or deny the claim began to run. The defendant issued a denial of claim dated January 19, 2011, 29 days later. Thus, in opposition to the plaintiffs’ prima facie showing, the defendant raised a triable issue of fact as to whether it denied the plaintiffs’ claim within the requisite 30-day period, as tolled by its requests for additional verification (see generally Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 163; see also 11 NYCRR 65-3.5 [b]). Contrary to the Supreme Court’s determination, the defendant was not required to set forth a medical rationale in its denial of claim form or, in the absence of a written request, to furnish a copy of the peer review report, in admissible form or otherwise (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 832-833 [2007]; see also A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780-781 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; 11 NYCRR 65-3.8 [b] [4]).

Accordingly, the Supreme Court, upon reargument, should have adhered to its prior determination denying that branch of the plaintiffs’ prior motion which was for summary judgment on the first cause of action. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.

Decided on May 22, 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 (Carolyn E. Wade, J.), entered March 16, 2012. 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 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. 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 held that the only remaining issue for trial was medical necessity.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted three affirmed peer review reports, each of 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. Although the parties’ appellate briefs indicate that, in opposition to defendant’s cross motion, plaintiff may have served papers which included an affidavit purportedly rebutting the peer review reports, the order appealed from recites that the sole papers considered by the court were plaintiff’s motion and defendant’s cross motion. This court’s review is limited to the papers considered by the Civil Court (see A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50115[U] [App Term, 2d & 11th Jud Dists 2005]), and plaintiff did not submit any medical evidence in support of its motion for summary judgment which might have raised a triable issue of fact as to medical necessity.

Thus, as plaintiff did not rebut defendant’s prima facie showing of a lack of medical necessity 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, the CPLR 3212 (g) findings in plaintiff’s favor are vacated as academic, and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v [*2]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.

Decided on May 22, 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 (William A. Viscovich, J.), entered March 2, 2012. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s $305.36 claim and the $583.56 unpaid portion of plaintiff’s $1,291.96 claim are granted; 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s litigation examiner established that defendant had timely denied the claims 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 also demonstrated that its denial of $583.56 of plaintiff’s $1,291.96 claim was based on the workers’ compensation fee schedule, pursuant to which plaintiff was entitled to only $708.40, which sum defendant had paid. Defendant further showed that it had properly denied plaintiff’s $305.36 claim in accordance with the workers’ compensation fee schedule because plaintiff’s claim was contrary to Physical Medicine Ground Rule 11. As plaintiff failed to raise a triable issue of fact with respect to defendant’s application of the workers’ compensation fee schedule, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

To the extent that defendant timely denied the remaining claims on the ground of lack of medical necessity, the affirmation from the doctor who performed an independent medical examination (IME) on defendant’s behalf was sufficient to establish defendant’s prima facie entitlement to summary judgment dismissing these claims. However, in opposition to defendant’s cross motion, plaintiff submitted an affirmation from plaintiff’s assignor’s treating [*2]doctor who stated that he had examined the assignor six days after the IME. His findings contradicted the findings of defendant’s IME doctor and was sufficient to raise a triable issue of fact as to the medical necessity of the remaining claims (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s $305.36 claim and the $583.56 unpaid portion of plaintiff’s $1,291.96 claim are granted.

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

Decided on May 22, 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 (Carol Ruth Feinman, J.), entered December 13, 2011. The order denied plaintiff’s motion for an order of preclusion.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion for an order of preclusion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation, dated February 14, 2011, pursuant to which defendant was to serve responses to plaintiff’s discovery demands within 30 days or be “precluded from offering items that were requested by plaintiff in its discovery demands, but were not provided by defendant, in this action.” By notice of motion dated April 18, 2011, plaintiff moved for an order of preclusion, alleging that defendant had failed to comply with the discovery stipulation. On June 22, 2011, the parties stipulated to adjourn the motion until December 13, 2011, and that opposition to the motion was to be served by October 13, 2011. Defendant did not submit written opposition to the motion. Nevertheless, the Civil Court denied plaintiff’s motion, stating that “respondent served discovery responses in May 2011.”

Plaintiff established that discovery responses had not been served within the stipulated time period, and defendant failed to submit written opposition to plaintiff’s motion either within the stipulated time frame for the service of opposition papers, or at all. Under these circumstances, plaintiff’s motion should have been granted.

Accordingly, the order is reversed and plaintiff’s motion for an order of preclusion is granted.

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

Decided on May 22, 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 (Peter Paul Sweeney, J.), entered September 29, 2009. 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 reversed, with $30 costs, plaintiff’s motion for summary judgment is denied 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 seeks to recover on a bill for $172.81 and the $27.19 balance of a bill for $55.69. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. At issue is defendant’s application of a $200 deductible to the claims in question.

The affidavits submitted by 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]), that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6), and that defendant had denied the claims at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Plaintiff’s contention that defendant improperly based its motion upon an out-of-state affidavit that was not in compliance with CPLR 2309 (c) was improperly raised for the first time on appeal and, thus, was waived (see Talley v Peck, 23 Misc 3d 141[A], 2009 NY Slip Op 51028[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In any event, defendant’s affidavit which alleged facts concerning the applicability of the deductible was notarized in New York State, and the out-of-state affidavit establishing the proper mailing of the denial of claim forms was accompanied by a proper certificate of conformity (see CPLR 2309 [c]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Pesce, P.J., Aliotta and Solomon, JJ., concur.