Decided on July 1, 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 (Anna Culley, J.), entered March 5, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for services that it had allegedly provided to its assignor from October 19, 2000 through April 10, 2001. Upon receiving, on September 26, 2008, a document from plaintiff entitled amended complaint, bearing the caption “Dyckman Medical Diag. Treatment, P.C. A/A/O Juana Hernandez against Granite State Insurance Company” and index number 062375/03, defendant served its answer along with discovery demands. Thereafter, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the six-year statute of limitations had expired prior to the commencement of the action. By order entered March 5, 2011, the Civil Court, among other things, denied this branch of defendant’s motion, determining that the action had been timely commenced. Defendant appeals from this portion of the order.

A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). Here, in support of the branch of its motion seeking summary judgment, defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. However, in opposition to the motion, plaintiff proffered a copy of an affidavit of service of the summons and complaint in this action, which indicated that defendant had been served with the summons and complaint on March 25, 2003 at a New York City office. At that time, an action in the Civil Court was commenced by service of the summons (CCA former 400), and service was deemed complete immediately upon personal delivery to the defendant within the City of New York (CCA former 410). The record contains a copy of the summons and complaint, bearing index number 62375, as well as a copy of the affidavit of service, which were both filed with the Civil Court on April 7, 2003. As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service (see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d [*2]983 [2010]). As a result, defendant did not meet its burden of establishing that the six-year statute of limitations applicable here (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the commencement of the action.

Defendant’s claim that this action had, in fact, been previously dismissed is not substantiated by the record on appeal. It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d 709 [1988]; Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

Civil Court of the City of New York, Richmond County, June 24, 2014

APPEARANCES OF COUNSEL

Cassandra & Gullo, PLLC, Brooklyn (Dominick Gullo of counsel), for plaintiff.

Law Offices of James F. Sullivan, P.C., New York City (Eric Wahrburg of counsel), for defendant.

Plaintiff Forest Rehabilitation Medicine PC commenced the instant action against defendant [*2]insurance carrier to recover $3,490 in payment for the rendering of first-party no-fault medical benefit services to its assignor, Tracy Fertitta, pursuant to article 51 of the Insurance Law. The sole issue for this court’s determination is the medical necessity of “Calmare pain therapy,” also known as “scrambler therapy,” a relatively new and controversial form of treatment that has divided the medical field. Indeed, after a review of the testimony adduced at trial and the exhibits admitted in evidence, the apparent first impression question that must be determined is whether this form of therapy is merely another form of “junk science,” or a revolutionary form of pain management that demands and deserves acceptance.

Background

A bench trial was held before this court on February 10, 2014. Due to scheduling difficulties, said trial continued and culminated on May 14, 2014. Prior to the commencement of testimony, the parties stipulated to the establishment of plaintiff’s prima facie case, noting that defendant issued a timely denial of the claims asserting medical necessity as its defense. Additionally, the parties stipulated to various exhibits being admitted in evidence, including the claim forms, treatment records, medical records, defendant’s denials, and the peer review of Dr. Ayman Hadhoud. Neither party requested a Frye hearing, pursuant to Frye v United States (293 F 1013 [DC Cir 1923]).

The assignor, Tracy Fertitta, 35 years of age, was involved in a motor vehicle accident on May 12, 2011. Subsequent to the accident, she complained of pain in her neck, right arm, lower back, right leg, right shoulder and right knee. She eventually came under the care of Dr. Christopher Perez, M.D., a founding partner along with Jack D’Angelo, M.D., of plaintiff Forest Rehabilitation Medicine PC. Dr. Perez’s diagnosis relevant to the instant action was essentially right sided cervical and lumbar radiculopathy. His examination of Ms. Fertitta’s cervical spine, lumbosacral spine and right shoulder revealed tenderness and limited range of motion in all three areas. Consequently, Dr. Perez ordered an EMG of the upper extremities, advised Ms.{**44 Misc 3d at 478} Fertitta to engage in a course of physical therapy, to perform various home exercises, and to take analgesics as necessary. On December 21, 2011, Ms. Fertitta met with Dr. Perez to discuss the potential efficacy of treatment utilizing MC-5A Calmare pain therapy to treat her lumbar and cervical regions.

While the witnesses proffered by both plaintiff and defendant attempted to explain the specifics of the subject therapy, the court found a more precise explanation contained in a document entitled “Letter of Medical Necessity for Scrambler Therapy data submission based on New York State Insurance Commission Guidelines and insurance carrier requirements,” contained in a packet of documents admitted into evidence as plaintiff’s exhibit No. 1. Said document was prepared presumably for insurance purposes.

Under the phrase “Technology Description,” it states:

“[T]he MC-5A, using Scrambler Therapy Technology, Calmare Pain Therapy Treatment is a non-invasive method for rapid treatment of high-intensity oncologic, neuropathic, and drug resistant pain through a biophysical rather than a biochemical manner. The method incorporates a multiprocessor apparatus for electronic nerve stimulation, and uses the nerve fibers as a passive means to convey a message of normality to the nervous system by a procedure defined as scrambling or tricking of information, which then enables the nervous system to modify the reflex adaptive responses—referred to as TEMPR—Transcutaneous Electrical Modulation Pain Reprocessor . . . . In neuropathies there are [*3]complex reactions that modify the homeostatic equilibrium of pain system. In such a context, the Scrambler Therapy (ST5) interferes with the pain signal transmission, by mixing ‘non-pain’ information into the nerve fibers. The ST5 consists of a multiprocessor apparatus able to stimulate 5 artificial neurons by the application of surface electrodes on skin pain areas.”

The subject assignor, Ms. Fertitta, received one treatment on each of the following days: December 12, 2011, December 13, 2011, December 14, 2011, December 15, 2011, December 16, 2011, December 19, 2011, December 20, 2011, December 21, 2011, December 22, 2011 and December 23, 2011. The billed amount for each day was $349. The treatments were submitted to Allstate under code 64999, which is the category utilized for an “unlisted neurological procedure.”

{**44 Misc 3d at 479}Defendant called Dr. Ayman Hadhoud, a board certified specialist in the field of physical medicine and rehabilitation, as its sole witness. Initially, Dr. Hadhoud explained that the name “Calmare” is the name of a scientist responsible for the development of this therapy, whose name was then adopted by the manufacturer as the name for the particular mechanical device used in conjunction with the administration of the subject treatments. The court takes judicial notice that in the Italian language, the term “calmare” means “to soothe.” Dr. Hadhoud also testified that this subject course of treatment has mainly been used in treating patients receiving chemotherapy, a fact which he felt rendered it inapplicable in a clinical context. Thus, he testified that he reviewed all the available data concerning the treatment of Ms. Fertitta as a result of the accident, and concluded that the Calmare scrambler pain therapy treatment was not medically necessary. He also indicated that he found the subject treatment medically questionable in that Ms. Fertitta’s symptoms could be appropriately and sufficiently treated with basic physical therapy, and that pain and inflammation relief could easily be achieved with the use of regular oral analgesics.

Additionally, Dr. Hadhoud testified that because a no-pain message is transmitted to the nerve via the application of electrodes to the skin in close proximity to the area of pain, the subject treatment is merely just another form of physical therapy, wherein the primary goal is to reduce pain and inflammation. Thus, the numerous mechanisms, i.e., whirlpool, heat, and electric stimulation, which are regularly applied in physical therapy sessions would clearly be preferable and cheaper forms of treatment. Moreover, Dr. Hadhoud opined that since Calmare scrambler pain therapy is essentially physical therapy, any bills generated from its usage should be included in a fixed physical therapy fee.

Lastly, and most importantly, Dr. Hadhoud recited the definition of “medical necessity,” promulgated by the American Medical Association Policy Statement H-320.953 (Oct. 2000):

“services or products that a prudent physician would provide to a patient for the purpose of preventing, diagnosing, or treating an illness, injury, or its symptoms in a manner that is: (1) in accordance with generally accepted standards of medical practice; (2) clinically appropriate in terms of type, frequency, extent, site, and duration; and (3) not{**44 Misc 3d at 480} primarily for the convenience of the patient, physician, or other health care provider.”

In response to Dr. Hadhoud’s testimony, plaintiff called a rebuttal witness, Jack D’Angelo, M.D., whose area of expertise is also physical medicine and rehabilitation. Dr. D’Angelo testified that Calmare scrambler pain therapy can be simplistically described as a computerized device which uses a biophysical in lieu of a biochemical approach. A “no pain” message is transmitted to the nerves via disposable surface electrodes applied to the skin in the area of the patient’s source of [*4]pain. Scrambler therapy synthesizes 16 different types of nerve patterns which override chronically aberrant signals of chronic pain with normal signals emanating from the brain. Hence, the no-pain message replaces the pain message, essentially cancelling out the pain message.

Dr. D’Angelo further testified that the goal of said therapy is to reduce a patient’s level of pain to a zero level/zone. Dr. D’Angelo conceded the fact that this type of therapy is essentially new. Nevertheless, he emphatically asserted that it has gained wide acceptance in the medical community, and has received approval by the Food and Drug Administration (FDA), for use in chemotherapy induced neuropathy as well as diabetic neuropathy. Moreover, he testified that the Calmare device has also been a European CE marked certified pain therapy medical device for the noninvasive treatment of neuropathic and oncologic pain. Dr. D’Angelo also testified that one third of Calmare devices are currently being utilized by the military, and independent studies are in the process of being conducted by the Mayo Clinic as well as Stanford University. More responsive to the concept of no-fault benefits, he testified that said device has also been approved by the Workers’ Compensation Medical Fee Schedule on a case by case basis.

Dr. D’Angelo explained that with scrambler therapy, the usual protocol is to start with 10 45-minute treatments applied to the “problem area.” He testified that Ms. Fertitta’s pain level was closely monitored after each session. When she initially began treatment, her pain level was five to six. However, upon the completion of said therapy, her pain level had actually been reduced to a three. It should be noted that Dr. D’Angelo conceded that it was too early to be able to render an opinion as to the potential long-term benefits of Calmare scrambler therapy.{**44 Misc 3d at 481}

Conclusions of Law

A denial of no-fault coverage premised on a lack of medical necessity must be supported by competent evidence, such as an independent medical examination or peer review, or other proof, which sets forth a factual basis and a medical rationale for denying the claim (see Healing Hands Chiropractic, P.C. v Nationwide Assur. Co., 5 Misc 3d 975 [Civ Ct, NY County 2004]; Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]).

Where a plaintiff provider proves that it timely submitted completed no-fault claim forms setting forth the facts and amount of the loss sustained, and that payment of the no-fault benefits are overdue, the provider establishes a prima facie case of medical necessity (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). However, “[w]here the defendant insurer presents sufficient evidence to establish a defense based on the lack of medical necessity, the burden shifts to the plaintiff which must then present its own evidence of medical necessity” (2006 NY Slip Op 51871[U], *2, citing Prince, Richardson on Evidence §§ 3-104, 3-202 [Farrell 11th ed 1995]; see also Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

It has been held that a peer review’s medical rationale is insufficient if it is unsupported by or controverted by evidence of medical standards or generally accepted practice (see Bajaj v Progressive Ins. Co., 14 Misc 3d 1202[A], 2006 NY Slip Op 52387[U] [Civ Ct, Queens County 2006]; CityWide Social Work & Psychological Servs. v Travelers Indem. Co., 3 Misc 3d 608 [Civ Ct, Kings County 2004]; Nir v Allstate Ins. Co., 7 Misc 3d 544 [Civ Ct, Kings County 2005]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values [*5]that define its calling” (CityWide Social Work & Psychological Servs. v Travelers Indem. Co. at 616).

In the instant case, the court finds that despite the fact that Dr. Hadhoud’s expert testimony included a factual basis and a medical rationale for his opinion, this is insufficient to establish a lack of medical necessity for the Calmare pain therapy rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. v Maryland Cas. Co., 32{**44 Misc 3d at 482} Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). It seems that Dr. Hadhoud’s main problem with Calmare pain therapy is that it is not cost effective.

The court, despite extensive research, was unable to locate any reported cases involving the issue of the medical necessity of Calmare scrambler therapy. In order to ascertain the medical necessity of Calmare scrambler therapy, the court must determine if it is generally accepted as reliable science.

The Court in Marsh v Smyth (12 AD3d 307, 310 [1st Dept 2004]) instructed that

“[t]he important purpose of the Frye test is to ensure that courts do not rely upon an expert’s testimony regarding a novel procedure, methodology or theory unless it has been ‘generally accepted’ within the relevant scientific community as leading to reliable results (see People v Angelo, 88 NY2d 217, 223 [1996]). The focus of the Frye test is to distinguish between scientific principles which are ‘demonstrable’ and those which are ‘experimental’ (see People v Wesley, 83 NY2d 417, 422 [1994], quoting Frye, 293 F at 1014). The Wesley court went on to emphasize that ‘the particular procedure need not be “unanimously indorsed” by the scientific community but must be “generally acceptable as reliable” ’ (83 NY2d at 423, quoting People v Middleton, 54 NY2d 42, 49 [1981])” (see also Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 56 [2d Dept 2011]).

Therefore, this court in applying the Frye standard finds that the evidence presented by the experts regarding Calmare scrambler therapy is reliable.

The court is not unduly concerned by the fact that Dr. D’Angelo testified that he could not comment with any semblance of certainty as to the long-term effects of Calmare scrambler therapy treatments. Nor is the court unduly concerned with the current lack of information concerning the potential adverse effects of prolonged treatments. It is common knowledge that most if not every type of medication on the market has potential adverse side effects. Indeed, every commercial on television advertising medication for various ailments comes replete with unnerving warnings about the potential adverse side effects of said medication. After viewing some of these commercials, one has to wonder if the ailment might not be preferable to the cure.{**44 Misc 3d at 483}

In all frankness, the court is fascinated with the entire concept of Calmare scrambler therapy. It has found that the Calmare device is approved by the FDA for marketing in the United States. According to the official FDA website, an FDA 510 (k) classification essentially clears a medical device for commercial distribution. For a medical device to be approved by the FDA, pursuant to 21 USC § 360c (a) (3) (A):

“the effectiveness of a device is, for purposes of this section . . . to be determined, in accordance with regulations promulgated by the Secretary, on the basis of well-controlled investigations, including 1 or more clinical investigations where appropriate, by experts qualified by training and experience to evaluate the effectiveness of the device, from which investigations it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to [*6]have under the conditions of use prescribed, recommended, or suggested in the labeling of the device.”

Furthermore, 21 USC § 360c (a) (3) (B) provides:

“If the Secretary determines that there exists valid scientific evidence . . .

“(i) which is sufficient to determine the effectiveness of a device, and

“(ii) from which it can fairly and responsibly be concluded by qualified experts that the device will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling of the device,

“then, for purposes of this section . . . the Secretary may authorize the effectiveness of the device to be determined on the basis of such evidence.”

Additionally, the FDA, pursuant to 21 USC § 360c (a) (3) (A) and (B), also requires the individual or entity seeking approval of a device to provide adequate, well-controlled investigations which include clinical investigations by qualified experts who, by possessing the necessary training and expertise, can conclude that the device in question will have the effect it purports to have when used as directed (see also 21 USC § 355 [d] [setting forth the “substantial evidence” required for approval of a new drug]).

The court finds unavailing the fact that no specific evidence that Calmare scrambler pain therapy is widely accepted in the medical field for the treatment of neurological pain has been{**44 Misc 3d at 484} presented. The court notes that no real evidence of nonacceptance has been presented. What is significant and noteworthy is that evidence of independent testing was presented which demonstrated that Ms. Fertitta’s pain level decreased following the administration of Calmare scrambler pain therapy treatments.

The court certainly recognizes that anything new, whether it be a mechanical device or a scientific theory, will inevitably have “kinks” which need to be worked out over time. However, this fact should not fuel any unreasonable fear or disapproval of a device which has the potential to literally revolutionize how the medical field addresses and combats chronic pain.

Therefore, in consideration of this, the court finds no reason to deny the instant claim for reimbursement. The court finds that Calmare scrambler therapy, in the instant action, was a medical necessity for Ms. Fertitta’s pain management.

Accordingly, it is hereby ordered that judgment in the amount of $3,490, in addition to attorney’s fees and statutory interest, is awarded to plaintiff Forest Rehabilitation Medicine PC as assignee of Tracy Fertitta.

Decided on June 13, 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 November 1, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).

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

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

Decided on June 9, 2014

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered September 26, 2013, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ruben Franco, J.), entered September 26, 2013, reversed, with $10 costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting competent evidence establishing the proper and timely mailing of the notices scheduling the assignor’s independent medical examinations and examinations under oath, as well as the assignor’s failure to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). With respect to the latter, defendant’s moving submission, including the sworn affidavits of the scheduled examining physicians, set forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the duly scheduled IMEs, and the affiants’ actions, “in the ordinary course of business,” in advising defendants’ third-party biller of such nonappearance. As to defendant’s mailing of the EUO notices, we note that the assignor’s address as listed in the notices was consistent with that appearing on the claim form submitted by the plaintiff medical provider, which, notably, offered no persuasive explanation, either below or on appeal, as to why the notices were returned to defendant as “unclaimed.” 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 30, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). 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]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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 (Carol Ruth Feinman, J.), entered February 23, 2012, deemed from a judgment of the same court entered March 30, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $5,365.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits,

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond 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 submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. [*2]v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) for the first through thirteenth causes of action.

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of plaintiff’s motion seeking summary judgment on those 13 causes of action should have been denied, and the branches of defendant’s cross motion for summary judgment seeking to dismiss those causes of action should have been granted.

However, defendant did not deny the claim upon which plaintiff’s 14th cause of action was based until October 21, 2010, which was more than two months after plaintiff’s assignor had failed to appear for his second scheduled IME and more than three months after defendant’s receipt of the claim. While defendant alleges that it tolled its 30-day period to pay or deny the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) by timely requesting written verification (see id. at § 65-3.5 [b]), the letters sent by defendant to plaintiff were insufficient to constitute verification requests (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, defendant failed to demonstrate that this claim had been timely denied. In view of the foregoing, we do not disturb so much of the order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment on the 14th cause of action and denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action. Accordingly, the judgment is reversed, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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 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.