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 January 11, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, limited the issues for trial to the timeliness and propriety of defendant’s denial of claim forms and to the defenses preserved in such denials (see CPLR 3212 [g]).

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied the motion, but limited the issues for trial to the timeliness and propriety of defendant’s denial of claim forms and to the defenses preserved in such denials. Defendant argues on appeal that the Civil Court, in effect, granted plaintiff’s motion for summary judgment, and that it should not have made CPLR 3212 (g) findings in plaintiff’s favor.

Contrary to defendant’s position on appeal, the court did not grant plaintiff’s motion for summary judgment. Rather, the court limited the issues of fact for trial, which it is permitted to do when a motion for summary judgment is denied or partially denied (see CPLR 3212 [g]).

Defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), dated December 7, 2010. The order, insofar as appealed from, upon granting renewal of the branches of plaintiffs’ motion seeking summary judgment on the complaint, except as to claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) for which plaintiffs had previously been awarded summary judgment, denied those branches of plaintiffs’ motion and granted defendant’s cross motion for summary judgment dismissing the remaining portion of the complaint.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor had been injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied the motion and cross motion without prejudice and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction.

Plaintiffs appealed from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance. By order dated June 18, 2009, this court modified the District Court’s order “by striking the provision denying without prejudice plaintiffs’ motion for summary judgment, by providing that so much of plaintiffs’ motion as sought summary judgment upon claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) is granted and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon, and by remitting so much of plaintiffs’ motion as sought summary judgment with respect to the remaining claims to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation [*2]Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny so much of plaintiffs’ motion as related to the remaining claims and grant reverse summary judgment in favor of defendant dismissing the complaint with respect to the remaining claims unless plaintiffs show good cause why the complaint with respect to the remaining claims should not be dismissed” (A.B. Med. Servs., PLC v American Tr. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51263[U], *1-2 [App Term, 9th & 10th Jud Dists 2009] see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Thereafter, plaintiffs moved for, among other things, leave to renew so much of their prior motion for summary judgment as had been denied. Defendant opposed plaintiffs’ motion and cross-moved for summary judgment dismissing the remaining claims asserted in plaintiff’s complaint pursuant to this court’s June 18, 2009 order. By order dated December 7, 2010, the District Court, insofar as is relevant to this appeal, adhered to its prior determination denying summary judgment upon plaintiff’s remaining claims and granted defendant’s cross motion for summary judgment dismissing those remaining claims, finding that a proper application to the Board, pursuant to this court’s June 18, 2009 order, had not been made.

Since plaintiffs did not demonstrate that a proper application for workers’ compensation benefits had been made in accordance with the Workers’ Compensation Law (see e.g. Workers’ Compensation Law § 33) within the time provisions set forth in this court’s order dated June 18, 2009, and they otherwise did not show good cause why the remaining claims asserted in plaintiff’s complaint should not be dismissed, the order, insofar as appealed from, is affirmed.

The decision and order of this court dated August 6, 2012 (36 Misc 3d 142[A], 2012 NY Slip Op 51505[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Nicolai, P.J., and Iannacci, J., concur.

Molia, J., taking no part.
Decision Date: April 02, 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 (Barry A. Schwartz, J.), entered August 13, 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, defendant moved for summary judgment dismissing the complaint, contending that the New York City Civil Court lacked personal jurisdiction over it. Defendant further asserted that, in the event the court finds that it had acquired jurisdiction over defendant, summary judgment should be awarded to defendant based upon the collateral estoppel effect of a Michigan declaratory judgment which had determined that Michigan law applies to the matter and that the insurance policy at issue had been voided. In an affidavit in support of the motion, defendant’s officer asserted, among other things, that defendant, a Michigan insurance company, is not authorized to conduct business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York and does not provide goods or services in the State of New York. In opposition to the motion, plaintiff submitted an affirmation by its counsel, who argued, among other things, that defendant had failed to establish that the Civil Court lacked jurisdiction, because the affidavit of defendant’s officer was executed in Michigan and was not accompanied by a certificate of conformity. The Civil Court did not address defendant’s jurisdictional argument and granted defendant’s motion on the ground of the collateral estoppel effect of the Michigan declaratory judgment. This appeal by plaintiff ensued.

We note at the outset that where an issue of jurisdiction is raised as one among other grounds for dismissal, the jurisdictional issue must be determined first (cf. Citibank, N.A. v Keller, 133 AD2d 63 [1987]).

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court’s exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant’s motion papers demonstrated its entitlement to summary judgment dismissing the complaint for lack of jurisdiction, as defendant has done none of the acts enumerated in CCA 404 within the City of New York so as to bring it within the Civil Court’s long-arm jurisdiction (see Flatlands Med., P.C. v AAA Ins., ___ Misc 3d ___, 2014 NY Slip Op [*2]24048 [App Term, 2d, 11th & 13th Jud Dists 2014]). The ultimate burden of proof as to jurisdiction rests with the party asserting jurisdiction (see Fischbarg v Doucet, 9 NY3d 375 [2007] Sanchez v Major, 289 AD2d 320 [2001] Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In the present case, plaintiff failed to meet its burden. Furthermore, contrary to plaintiff’s contention, defendant’s failure to submit a certificate of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Flatlands Med., P.C. v AAA Ins., ___ Misc 3d ___, 2014 NY Slip Op 24048).

Accordingly, the order is affirmed, albeit on a ground other than that stated by the Civil Court. In view of the foregoing, we reach no other issue.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered July 5, 2011. The judgment, entered upon the denial of plaintiff’s motion pursuant to CPLR 4401 for judgment as a matter of law or, in the alternative, to declare a mistrial; upon a jury verdict; and upon an order of the same court dated October 27, 2006 denying plaintiff’s motion to set aside the verdict as contrary to the weight of the evidence and for a new trial, dismissed the complaint.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated October 27, 2006 is deemed a premature notice of appeal from the judgment entered July 5, 2011 (see CPLR 5520 [c]); and it is further,

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. Prior to trial, the parties stipulated that the sole question for the jury’s determination was whether the motor vehicle collision at issue was the result of an intentionally caused event. An investigator from defendant’s Special Investigation Unit was the only witness called to testify. Thereafter, plaintiff moved, pursuant to CPLR 4401, for judgment as a matter of law or, in the alternative, to declare a mistrial. Defendant opposed, and the Civil Court denied plaintiff’s motion. The jury unanimously returned a verdict in favor of defendant, finding that the motor vehicle collision was the result of an intentionally caused event. Following the verdict, plaintiff moved to set aside the verdict as contrary to the weight of the evidence and for a new trial. Defendant opposed, and, by order dated October 27, 2006, the Civil Court denied plaintiff’s motion. We deem plaintiff’s notice of appeal from the October 27, 2006 order to be a premature notice of appeal from the judgment dismissing the complaint entered July 5, 2011 (see CPLR 5520 [c]).

“[A]n untimely [claim] denial does not preclude a defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme” (Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 53, 54 [App Term, 2d & 11th Jud Dists 2004] see also Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005] Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002] V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, contrary to plaintiff’s contention, the testimony proffered by defendant’s witness was relevant to [*2]defendant’s defense that there was no coverage because “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, the branch of plaintiff’s motion seeking the declaration of a mistrial was properly denied by the Civil Court (see Mussari v Davidson, 93 AD2d 996 [1983]).

Furthermore, a fair interpretation of the evidence presented at trial (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995] Cohen v Hallmark Cards, 45 NY2d 493 [1978] DiGiacomo v County of Westchester, 112 AD3d 779 [2013]) supports the jury’s finding that the collision at issue was the result of an intentionally caused event (see Central Gen. Hosp., 90 NY2d at 199; Matter of Eagle Ins. Co., 22 AD3d 846; Matter of Allstate Ins. Co. v Massre, 14 AD3d 610 [2005] State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003] Matter of Metro Med. Diagnostics, 293 AD2d 751; V.S. Med. Servs., P.C., 25 Misc 3d 39). Thus, the branch of plaintiff’s motion seeking judgment as a matter of law and the motion to set aside the verdict as contrary to the weight of the evidence and for a new trial were properly denied by the Civil Court. We note that we do not consider those factual assertions contained in plaintiff’s brief, or the materials annexed thereto, which, there being no record of their having been presented to the Civil Court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated August 17, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

ORDERED that the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

The court properly denied defendant’s motion for summary judgment dismissing the complaint, but improperly granted summary judgment to plaintiff, as there is a triable issue of fact as to whether verification is outstanding (see Cassidy v Allstate Ins. Co., 63 AD3d 869 [2009] Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673 [2006]).

Accordingly, the order is modified by striking the provision which, upon a search of the record, granted summary judgment to plaintiff.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: March 27, 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 (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, in effect, denied, as untimely, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

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, in effect, denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5), on the ground that it had been served late. As defendant’s cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant’s cross motion (see Comprehensive Psychiatric Care, P.C. v Clarendon Natl. Ins. Co., 42 Misc 3d 140[A], 2014 NY Slip Op 50184[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 27, 2014

[*1]

District Court of Nassau County, First District, March 26, 2014

APPEARANCES OF COUNSEL

Law Office of Rhonda Barry for defendant.

Israel, Israel & Purdy for plaintiff.

Background

This motion for summary judgment raises the issue of whether there must be a connection between an independent{**43 Misc 3d at 803} medical examination (IME) that a claimant fails to attend and the treatment in question for the failure to attend the IME to serve as a basis for denying a no-fault claim and dismissing this action.

Boulevard Multispec Medical, P.C. (Boulevard) sues as assignee of Phillip Sansone (Sansone) to recover first-party no-fault benefits for a functional capacity evaluation performed on March 11, 2013 and chiropractic and physical therapy treatment provided to Sansone on March 1 and March 8, 2013.

Defendant Tri-State Consumer Insurance Company (Tri-State) timely denied all three claims on the grounds the treatment was not medically necessary based upon the IME report of J. Serge Parisien, M.D. conducted on February 12, 2013. Dr. Parisien found Sansone had a resolved sprain/strain of the cervical spine and a resolved sprain of the left shoulder. Dr. Parisien concluded Sansone did not need any further orthopedic treatment, physical or massage therapy and any further diagnostic testing.

Prior to the dates of the treatment in question, Tri-State had requested Sansone appear for an IME to be performed by Dr. Alain Delachapelle, a psychiatrist. Dr. Delachapelle states he was in his office on the dates the IMEs were supposed to be conducted, and Sansone never appeared for the IME.

Tri-State timely denied Boulevard’s claims for the aforementioned services on the grounds the services were not medically necessary and on the grounds Sansone had failed to appear for the psychiatric IME to be conducted by Dr. Delachapelle.

Boulevard submits an affirmation from Gordon Davis, D.O. in opposition to the motion in which Dr. Davis states he has reviewed the medical reports for the treatment and testing involved in this action, prior treatment provided by Boulevard to Sansone and the IME report of Dr. Parisien and concludes the treatment and testing were medically appropriate.

Discussion

A. Medical Necessity

An insurer establishes an entitlement to summary judgment on the grounds medical treatment and/or testing were not medically necessary by presenting proof in evidentiary form establishing a factual basis and medical rationale for concluding the treatment and testing was not medically necessary. (Total Equip., LLC v Mercury Cas. Co., 42 Misc 3d 131[A], 2013 NY{**43 Misc 3d at 804} Slip Op 52220[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52003[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)

If the insurer presents such evidence, the burden of proof shifts to the plaintiff to present proof in evidentiary form rebutting the proof of lack 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].)

Even if the court finds Dr. Parisien’s IME report sufficient to meet defendant’s burden, the affirmation of Dr. Davis is sufficient to establish a factual basis and medical rationale for the testing and treatment. (Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50189[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Vincent Med. Servs., P.C. v GEICO Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52153[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010].)

The different opinions expressed by the medical experts regarding the medical necessity for the chiropractic treatment, physical therapy and medical testing are sufficient to raise questions of fact mandating denial of the motion for summary judgment on the grounds the treatment was not medically necessary. (Vinings Spinal Diagnostic, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51897[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010].)

B. Failure to Appear for an Independent Medical Examination

One of the primary purposes of the No-Fault Law is to ensure prompt payment of medical claims for necessary medical treatment or testing provided to persons injured in motor vehicle accidents. (See Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003].) Insurance Law § 5102 (a) (1) requires the insurer to pay for all necessary expenses incurred for medical treatment and testing incurred by one injured in a motor vehicle accident.

Despite this stated purpose, an insurer may deny a claim for medical services provided to a person injured in a motor vehicle accident without reaching the issue of the medical necessity of the treatment if the injured party fails to appear for a properly and timely scheduled IME. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) In order{**43 Misc 3d at 805} to deny a claim on the grounds the injured party failed to appear for an IME, the insurer must timely deny the claim asserting failure to appear for an IME as the grounds for the denial. (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 713 [2009].)

This simplistic rule does not take into account the purpose and function of an IME. The provision of 11 NYCRR 65-1.1 (d) (Section I, Conditions, Proof of Claim) requiring an injured party “shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require,” is the provision the courts found made appearance at an IME a condition precedent to coverage. (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.; Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 42 Misc 3d 131[A], 2013 NY Slip Op 52225[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].)

However, other provisions of the regulations treat appearance at an IME as part of the process of verification of the claim. 11 NYCRR 65-3.5 (d) provides if the additional verification demanded is a medical examination, the insurer must schedule the medical examination within 30 days of receipt of the claim. 11 NYCRR 65-3.8 (a) requires an insurer to pay or deny all no-fault claims within 30 days of receipt including all verification requested under 11 NYCRR 65-3.5. Where the verification requested was an IME, the verification is deemed to have been received by the insurer on the date the IME was performed. (11 NYCRR 65-3.8 [a].)

The purpose of an IME is to permit the insurer to verify the person’s injuries, to determine the injured party’s condition and to determine if the injured party needs any additional treatment or testing for those conditions and injuries. (Mangione v Jacobs, 37 Misc 3d 711 [Sup Ct, Queens County 2012].) In no-fault cases, the purpose of the IME is to assist the carrier in determining the extent of the injured party’s disability and that person’s need for additional and continued benefits. (See Rowe v Wahnow, 26 Misc 3d 8, 10 [App Term, 1st Dept 2009, McKeon, P.J., dissenting].) Thus, the purpose of an IME is not to determine whether coverage exists, but is to permit the insurer to determine the nature and extent of the injured party’s injuries, whether the injured party needs additional treatment or testing for those injuries and for how much longer such treatment might be needed.

In many if not most instances, the relationship between the IME and the treatment is apparent. For example, should the{**43 Misc 3d at 806} injured party fail to appear for a duly and timely noticed orthopedic IME, the insurer could deny all future benefits for orthopedic care and testing and treatment ordered by the orthopedist.

In this case, the insurer requested Sansone appear for a chiropractic, orthopedic, [*3]psychiatric and neurological IME within a one-week period. Sansone appeared for the orthopedic IME conducted by Dr. Parisien. Sansone did not appear for the psychiatric examination to be conducted by Dr. Delachapelle.

If one of the fundamental purposes of the No-Fault Law is to provide for prompt payment of claims for persons injured in motor vehicle accidents, then that purpose is not served by cutting off all no-fault benefits as a result of the injured party’s failure to appear for an IME in a discipline or specialty unrelated to the treatment in issue.

Put in the context of this action, the IME that serves as the basis of the denial of the claim is the failure of the party to appear for an IME to be performed by a psychiatrist. There is no evidence in the record to establish Sansone sustained any psychiatric injuries or received any psychiatric treatment for the injuries caused by the motor vehicle accident that gives rise to this no-fault claim. The treatment in question is medical testing involving the patient’s physical fitness to return to work as a bus driver, chiropractic treatment and physical therapy. None of this treatment or testing appears to be in any way related to Sansone’s psychiatric condition.

In order for the failure to appear for an IME to provide a basis for the denial of the claim, there must be some relationship between the IME for which the injured party failed to appear and the treatment in issue.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered August 1, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered August 1, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers’ compensation fee schedule (see Akita Medical Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] {App Term, 1st Dept 2013]), triable issues remain with respect to the claims denied outright by defendant on the stated basis that the CPT codes billed under were “outside the scope of the provider’s specialty.” Even assuming, without deciding, that defendant’s affiant, a claims examiner, may fairly be considered an expert qualified to render an opinion on such matters (but cf. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21-22 [2009]), the conclusory assertions set forth in her moving affidavit were insufficient to eliminate all triable issues of fact concerning the provider’s “specialty.” Defendant’s failure to meet that evidentiary burden mandates the denial of its motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 21, 2014

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 21, 2014

APPEARANCES OF COUNSEL

Skenderis & Cornacchia, P.C., Long Island City (Anupama Karumanchi of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Bentancourt of counsel), for respondent.

Ordered that the order, insofar as appealed from, is reversed, without costs, and plaintiffs’ cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiffs cross-moved for summary judgment. The Civil Court denied defendant’s motion on the ground that it was not made within 120 days of the filing of the notice of trial (see CPLR 3212 [a]), but granted plaintiffs’ cross motion, which was made several months later. Defendant appeals, as limited by its brief, from so much of the order as granted plaintiffs’ cross motion for summary judgment.

It was improper for the Civil Court to consider plaintiffs’ untimely cross motion for summary judgment in the absence of a showing by plaintiffs of good cause for not serving the motion within 120 days of the filing of the notice of trial, the Civil Court equivalent of a note of issue (see Chimbay v Palma, 14 Misc 3d 130[A], 2007 NY Slip Op 50019[U]; [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), as required by CPLR 3212 (a) (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]). Indeed, the deadline imposed by CPLR 3212 (a) is strictly enforced, and without a showing of good cause, the court has no discretion to entertain the motion, regardless of its merit or lack of prejudice to the opposing party (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d at 726; Brill v City of New York, 2 NY3d at 652-653; Richman v Obiakor Obstetrics & Gynecology, P.C., 32 Misc 3d 135[A], 2011 NY Slip Op 51461[U]; [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

To the extent plaintiffs contend that defendant never objected to their cross motion as untimely, we conclude that the absence of an objection does not constitute good cause to consider an otherwise untimely motion. As noted, the 120-day time limit specified in CPLR 3212 (a) is strict and serves to eliminate the “sloppy practice” of late summary judgment motions and promote “a habit of compliance with the statutory deadlines” for such motions (Brill v City of New York, 2 NY3d at 653-654).{**43 Misc 3d at 77} Thus, plaintiffs, having successfully opposed defendant’s summary judgment motion as untimely, cannot escape the consequences of their own untimely cross motion, which was made four months later. In these circumstances, the Civil Court should have denied plaintiffs’ cross motion, as it did defendant’s, as untimely.

Accordingly, the order, insofar as appealed from, is reversed, and plaintiffs’ cross motion for summary judgment is denied.

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

[*2]

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about November 3, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $3,045.08.

Per Curiam.

Judgment (Raul Cruz, J.), entered on or about November 3, 2010, affirmed, with $25 costs.

We agree that defendant failed to meet its evidentiary burden of establishing the lack of medical necessity of the diagnostic testing giving rise to plaintiff’s claim for assigned first-party no-fault benefits. The trial court was entitled to reject the sparse and confusing opinion testimony offered by defendant’s medical expert — which reflected the expert’s confessed lack of knowledge as to the assignor’s medical condition at the time of testing — even though the expert’s testimony was unopposed (see Chabourne & Parke, LLP v HGK Assets Mgt., Inc., 295 AD2d 208, 209 [2002]). Any misstatement in the court’s written decision as to the source of the medical records reviewed by defendant’s expert does not serve to undermine the court’s otherwise proper resolution of the matter.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014