Reported in New York Official Reports at New York Community Hosp. of Brooklyn v Mercury Cas. Co. (2016 NY Slip Op 50900(U))
[*1]| New York Community Hosp. of Brooklyn v Mercury Cas. Co. |
| 2016 NY Slip Op 50900(U) [52 Misc 3d 126(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2575 Q C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered October 10, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.
ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Plaintiff opposed the motion on the ground that defendant had failed to respond to discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). The Civil Court denied defendant’s motion.
In support of its motion for summary judgment, defendant alleged that it had timely denied plaintiff’s claims on the ground of lack of medical necessity based on an affirmed peer review report. In opposition to defendant’s motion, plaintiff demonstrated that it had requested from defendant, but had not received, the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer. Defendant’s contention that the branch of defendant’s motion seeking summary judgment is not premature since plaintiff already possessed its own medical records upon which the peer reviewer relied lacks merit. As a result, under the circumstances of this case, defendant is not entitled to summary judgment at this time (see CPLR 3212 [f]; Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this [*2]action on the ground that the services rendered lacked medical necessity, and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Kanter v Mercury Cas. Co. (2016 NY Slip Op 50908(U))
Reported in New York Official Reports at Kanter v Mercury Cas. Co. (2016 NY Slip Op 50908(U))
[*1]| Kanter v Mercury Cas. Co. |
| 2016 NY Slip Op 50908(U) [52 Misc 3d 127(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1574 Q C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 2, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without 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 of lack of medical necessity or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment. The Civil Court denied both motions, but, in effect, limited the issues for trial, pursuant to CPLR 3212 (g), to defendant’s defense of lack of medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.
Contrary to defendant’s contention, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity, and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination is material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50909(U))
Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50909(U))
[*1]| Alleviation Med. Servs., P.C. v Hertz Co. |
| 2016 NY Slip Op 50909(U) [52 Misc 3d 127(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1689 Q C
against
Hertz Co., Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 17, 2013. The judgment, entered pursuant to a July 8, 2013 order of the same court 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 $4,148.69.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 8, 2013 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from judgment of the Civil Court entered July 17, 2013 awarding plaintiff the principal sum of $4,148.69. The judgment was entered pursuant to a July 8, 2013 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.
Contrary to defendant’s contention, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff failed to establish, as a matter of law, defendant’s entitlement to summary judgment dismissing the complaint, as defendant’s cross-moving papers did not contain proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as plaintiff did not establish that defendant’s defense lacked merit as a matter of law (see 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 Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment is reversed, so much of the order entered July 8, 2013 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Reliable Physical Therapy, P.C. v MVAIC (2016 NY Slip Op 50919(U))
Reported in New York Official Reports at Reliable Physical Therapy, P.C. v MVAIC (2016 NY Slip Op 50919(U))
[*1]| Reliable Physical Therapy, P.C. v MVAIC |
| 2016 NY Slip Op 50919(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2101 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 20, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied MVAIC’s motion for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired.
As MVAIC moved for summary judgment dismissing the complaint on the ground that the action was barred by the statute of limitations, it bore 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]). MVAIC’s moving papers established that the action had been commenced after the expiration of the three-year statute of limitations. In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U))
Reported in New York Official Reports at Compas Med., P.C. v Farmington Cas. Co. (2016 NY Slip Op 50925(U))
[*1]| Compas Med., P.C. v Farmington Cas. Co. |
| 2016 NY Slip Op 50925(U) [52 Misc 3d 128(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2155 Q C
against
Farmington Casualty Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered August 9, 2013. 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, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing, as premature, so much of the complaint as sought to recover upon a claim for $198, because plaintiff had failed to provide requested verification, and granted the branches of defendant’s motion seeking summary judgment dismissing the remainder of the complaint due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs).
In support of the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the $198 claim, defendant demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s attempt to recover upon this claim is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly granted the branch of defendant’s motion addressed to this claim.
Plaintiff’s contention—that defendant failed to establish the mailing of the denial of claims forms, which denied plaintiff’s remaining claims due to the failure of plaintiff’s assignor to appear for IMEs—lacks merit, as defendant established that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Natural Therapy Acupuncture, P.C. v Travelers Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51713[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Raymond Cecora, P.T., P.C. v Mercury Cas. Co. (2016 NY Slip Op 50930(U))
Reported in New York Official Reports at Raymond Cecora, P.T., P.C. v Mercury Cas. Co. (2016 NY Slip Op 50930(U))
[*1]| Raymond Cecora, P.T., P.C. v Mercury Cas. Co. |
| 2016 NY Slip Op 50930(U) [52 Misc 3d 129(A)] |
| Decided on June 6, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 6, 2016
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2406 Q C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and plaintiff’s cross motion but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), stating that “the sole issue for trial shall be the defense of lack of medical necessity.” As limited by its brief, defendant appeals from so much of the order as denied its motion.
In support of the branch of its motion seeking summary judgment, defendant submitted an affirmed independent medical examination (IME) report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff submitted an affidavit which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). 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 the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists [*2]2007]).
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2016Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50873(U))
Reported in New York Official Reports at Ji Sung Kim Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50873(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 3, 2013. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much thereof as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, or, in the alternative, to compel plaintiff to appear for an examination before trial.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, are granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff’s treating doctor to appear for an examination before trial. Plaintiff cross-moved for summary judgment. By order entered October 3, 2013, the Civil Court denied defendant’s motion, granted the branch of plaintiff’s cross motion seeking summary judgment upon a claim for dates of service February 23-24, 2011, and denied the remainder of plaintiff’s cross motion. The Civil Court held that with respect to all of the remaining claims, the sole issue for trial was defendant’s defense of lack of medical necessity.
Defendant’s appellate brief states that defendant is not appealing from so much of the order as granted plaintiff’s cross motion for summary judgment upon the claim for dates of service February 23-24, 2011 and concedes that defendant owes plaintiff the additional sum sought of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011.
In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. In opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner who had treated plaintiff, which failed to meaningfully refer to, [*2]let alone sufficiently rebut, the conclusions set forth in the doctor’s report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). 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 the branches of defendant’s motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon a claim for dates of service February 23-24, 2011 and as sought to recover the sum of $248.64 for claims relating to dates of service February 18, 21, 25, and 28, 2011, and March 2-4, 9-11, and 14, 2011, are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))
| New Quality Med., P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 50872(U) [51 Misc 3d 152(A)] |
| Decided on June 3, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1944 K C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 1, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
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). In opposition to defendant’s motion, plaintiff argued, among other things, that defendant had not established plaintiff’s failure to appear for the EUOs. By order entered July 1, 2013, the Civil Court granted 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 should have been denied (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In light of the foregoing, we reach no other issue.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50871(U))
| New Quality Med., P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 50871(U) [51 Misc 3d 152(A)] |
| Decided on June 3, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1908 Q C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 29, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
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, alleging that the claim at issue had been timely and properly denied based upon plaintiff’s failure to appear at duly scheduled examinations under oath (EUOs). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to sufficiently establish plaintiff’s failure to appear for EUOs.
Since defendant raises no issue on appeal with regard to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).
Defendant’s contention that its cross motion for summary judgment should have been granted due to plaintiff’s failure to appear for duly scheduled EUOs lacks merit, as the Civil Court correctly found that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Since defendant failed to raise a triable issue of fact as to whether it had timely denied plaintiff’s claims (see 11 NYCRR 65-3.8 [a]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s contention that its papers were sufficient, at least, to raise a triable issue of fact as to whether plaintiff had failed to appear for the scheduled EUOs is irrelevant.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at Provek Plus, Inc. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50870(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Tri-State Consumer Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered July 8, 2013. The order denied defendant’s motion for leave to renew its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered April 23, 2013.
ORDERED that the order entered July 8, 2013 is reversed, with $30 costs, the branch of defendant’s motion seeking leave to renew is granted, and, upon renewal, the order entered April 23, 2013 is vacated and defendant’s prior motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered April 23, 2013, the Civil Court denied defendant’s unopposed motion, finding that the affidavit of defendant’s mail clerk demonstrated the existence of a triable issue of fact. Immediately thereafter, defendant moved for leave to renew based upon an affidavit which set forth that the mail clerk’s affidavit had contained an inadvertent typographical error, and, upon renewal, for summary judgment dismissing the complaint. By order entered July 8, 2013, the Civil Court denied defendant’s unopposed motion.
A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and . . . shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [2], [3]; see Empire State Conglomerates v Mahbur, 105 AD3d 898, 899 [2013]). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585-586 [2012]). Here, defendant submitted an affidavit explaining that the affidavit of defendant’s mail clerk, which was submitted in support of defendant’s prior motion for summary judgment, contained an inadvertent typographical error with respect to the date on which the mail clerk was first employed by defendant. As a result, leave to renew should have been granted (see Miller v Duffy, 162 AD2d 438 [1990]; Olean Urban Renewal Agency v Herman, 101 AD2d 712 [*2][1984]).
The papers submitted by defendant in support of its motion were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the verification requests and denial of claim forms at issue, which denied plaintiff’s claims on the ground that the supplies furnished to plaintiff’s assignor lacked medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the determination of defendant’s doctor that there was no medical necessity for the supplies furnished. As defendant’s prima facie showing was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).
Accordingly, the order entered July 8, 2013 is reversed, the branch of defendant’s motion seeking leave to renew is granted, and, upon renewal, the order entered April 23, 2013 is vacated and defendant’s prior motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016