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

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 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are granted; 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 Civil Court denying defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit from the chiropractor who was to perform the IMEs, which affidavit was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first through fourth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s fifth through ninth causes of action, the affidavit of defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (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]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the fifth through ninth causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first through fourth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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 January 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second, and fifth through eighth causes of action are granted; 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 Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit from the chiropractor who was to perform the IMEs, which affidavit was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first, second, fifth, sixth, seventh and eighth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s third and fourth causes of action, the affidavit by defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (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]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the third and fourth causes of action.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first, second, and fifth through eighth causes of action are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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 January 13, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating 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 claim 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 form was 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.
Decision Date: March 17, 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 (Robin Kelly Sheares, J.), entered December 20, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

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

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Thus, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004] D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff’s action is premature. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014