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, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

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

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.) dated September 6, 2012, which denied its motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment on the complaint is granted.

The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by “demonstrating that the necessary billing documents were mailed to, and received by, [the defendant insurer] and that payment of no-fault benefits was overdue” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164-165 [2013]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2d Dept 2013]), since “the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed either to pay or deny the claim within the requisite 30-day period” (Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306 [2012]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). Contrary to the defendant’s contention, the papers submitted in support of the plaintiff’s motion were in sufficient evidentiary form to warrant the granting of summary judgment in favor of the plaintiff (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).

In opposition, the defendant failed to raise a triable issue of fact. The defendant acknowledged that it received the billing form on November 4, 2011. Neither the letter that the defendant describes as a request for a verification, dated December 6, 2011, nor its later denial of claim form dated December 20, 2011, was sent within the 30-day post-receipt-of-claim period (see id.; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 164; see also 11 NYCRR 65-3.5 [b]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]).

Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint. Mastro, J.P., Dickerson, Chambers and Roman, JJ., concur.

—[*1] McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for appellant.

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

In an action to recover no-fault benefits under three separate policies of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered December 1, 2011, which, upon an order of the same court dated October 21, 2011, granting that branch of the plaintiffs’ motion which was for summary judgment on the second cause of action, is in favor of the plaintiff Richmond University Medical Center, as assignee of Arnold Sealey, and against it in the total sum of $6,698.56.

Ordered that the judgment is affirmed, with costs.

By failing to timely contest, at the claims stage, the adequacy of the claim forms used by the plaintiff Richmond University Medical Center, as assignee of Arnold Sealey, to establish proof of claim, the defendant waived its right to rely on any deficiencies in those forms at the litigation stage (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2nd Dept 2013]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984, 984 [2007]). Accordingly, by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the second cause of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]).

We note that the defendant does not contend on appeal that it raised a triable issue of fact in opposition to the plaintiffs’ prima facie showing, but only that the plaintiffs failed to meet their prima facie burden. Therefore, we do not address the issue of whether the defendant raised a triable issue of fact in opposition.

Accordingly, we affirm the judgment appealed from. Dillon, J.P., Balkin and Chambers, JJ., concur.

Miller, J., concurs in the result on constraint of this Court’s opinion and order in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (114 AD3d 33 [2d Dept 2013]).

—[*1] McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y. (Mark A. Green of counsel), for respondents.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered February 10, 2012, as granted the plaintiffs’ motion for summary judgment on the first cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs’ submissions included a postal receipt indicating that the prescribed NF-5 statutory billing form corresponding to the no-fault claim at issue, and related documents, were received by the defendant on May 26, 2011. The person who mailed the NF-5 form averred, in support of the plaintiffs’ motion, that the defendant neither paid nor properly denied the claim within 30 days. This initial showing was sufficient to demonstrate the plaintiffs’ prima facie entitlement to judgment as a matter of law on the first cause of action (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely paid or denied the claim, or requested additional verification within the time frame set forth in the no fault regulations (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]).

Accordingly, the Supreme Court properly granted the plaintiffs’ motion for summary judgment on the first cause of action. Mastro, J.P., Chambers, Hall and Lott, JJ., concur. [Prior Case History: 2012 NY Slip Op 30418(U).]

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

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

In an action to recover no-fault benefits under two separate policies of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), entered October 13, 2011, which, upon an order of the same court entered August 2, 2011, granting the plaintiffs’ motion for summary judgment on the complaint and denying its cross motion, inter alia, for summary judgment dismissing the complaint, is in favor of the plaintiffs and against it in the sum of $66,682.29.

Ordered that the judgment is modified, on the law, by deleting the provision thereof, in effect, awarding the plaintiffs damages in the sum of $7,354.28 on the first cause of action and substituting therefor a provision dismissing that cause of action; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is denied, that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action is granted, the order entered August 2, 2011, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.

The plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on the second cause of action, which related to the claim submitted by Westchester Medical Center in connection with the injuries allegedly sustained by its assignor, Robert de los Santos, by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 2013 NY Slip Op 08430 [2d Dept 2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984 [2012]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082 [2011]). A medical provider is not required, as part of its prima facie showing, to demonstrate the admissibility of its billing records or to prove the truth of their content under the business records exception to the hearsay rule (see CPLR 4518 [a]; Viviane [*2]Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 45 [2013]). In opposition to the plaintiffs’ showing in connection with the second cause of action, the defendant failed to raise a triable issue of fact as to whether it properly requested further verification of that claim (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d at 1083; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]). By failing to timely contest, at the claims stage, the adequacy of the claim forms employed by Westchester Medical Center to establish proof of the claim it submitted on behalf of de los Santos, the defendant waived its right to rely on any deficiencies in those forms at the litigation stage (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013]). Similarly, on its cross motion for summary judgment, the defendant failed to establish, prima facie, that it properly requested verification of that claim (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676 [2007]). Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the second cause of action and properly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the second cause of action (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 754 [2007]).

In connection with that branch of its cross motion which was for summary judgment dismissing the first cause of action, however, the defendant established, prima facie, that payment on the claim made by the plaintiff New York Hospital Medical Center of Queens on behalf of its assignor, Khushi Robinson, was not overdue since there were verification requests that remained outstanding with respect to that claim (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). In opposition, the plaintiffs failed to raise a triable issue of fact (see id.). Specifically, the defendant submitted evidence that it timely and properly requested further verification of that claim and timely and properly followed up on that request, but that New York Hospital Medical Center of Queens did not respond (see Westchester Med. Ctr. v Country Wide Ins. Co., 84 AD3d 790, 791 [2011]; St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517, 518 [2008]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, and granted that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action. Balkin, J.P., Roman, Sgroi and Cohen, JJ., concur.

—[*1] John C. Buratti & Associates, New York (Julie M. Sherwood of counsel), for appellant.

Marshall & Marshall, PLLC, Jericho (Jeffrey Kadushin of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about October 3, 2012, which, after a framed issue hearing, found that defendant Farmers Insurance Company is obligated to provide plaintiff with coverage for the subject accident, unanimously affirmed, with costs.

Mandatory arbitration is the sole available remedy pursuant to 11 NYCRR 65-4.11 and Insurance Law §§ 5105 and 5221 (b) (6) in order to determine issues of coverage between insurance carriers and defendant Motor Vehicle Accident Indemnification Corporation (MVAIC). The fact that appellant submitted its “contentions,” which included the affirmative defense of no coverage due to cancellation of the policy, establishes that it was aware of the arbitration proceeding, and yet did not appear, seek an adjournment to present the necessary documentation regarding the cancellation, or file a petition to vacate the arbitration award pursuant to CPLR 7511. Thus, appellant had a “full and fair opportunity to contest the decision” (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184, 192 [1977] [emphasis omitted]), and failed to do so.

The issue in both actions was the alleged cancellation of the insurance policy, which was decided by the arbitrator. The fact that plaintiff now seeks bodily injury benefits does not alter [*2]this result, as there is no evidence that the parties arbitrated under an agreement to limit the preclusive effect of the arbitration decision (cf. Kerins v Prudential Prop. & Cas., 185 AD2d 403, 404 [3d Dept 1992]). Concur—Tom, J.P., Friedman, DeGrasse, Feinman and Gische, JJ.

—[*1] Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Harlan S. Budin of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered April 30, 2012, which granted the petition to vacate the arbitration awards, and remanded the matter for a new arbitration before a new arbitrator, unanimously reversed, on the law, without costs, and the arbitration awards reinstated.

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled law, and therefore should have been confirmed. Respondent insurer’s disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-2.4 [c]).

We have considered the parties’ remaining arguments and find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Manzanet-Daniels and Gische, JJ.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, appeals from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 23, 2012, as denied that branch of its motion which was for summary judgment on its first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff Westchester Medical Center, as assignee of Arianna Thrasher, which was for summary judgment on its first cause of action is granted.

The plaintiff Westchester Medical Center, as assignee of Arianna Thrasher (hereinafter the appellant), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence in admissible form that the prescribed statutory billing form had been mailed to and received by the respondent insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984, 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

Contrary to the Supreme Court’s determination, the respondent, in opposition to the appellant’s prima facie showing, failed to raise a triable issue of fact.

The respondent’s contention that there was a complete absence of coverage that could be asserted as a basis for disclaimer notwithstanding its failure to comply with the 30-day rule set forth in Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (see generally Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Zappone v Home [*2]Ins. Co., 55 NY2d 131 [1982]), is improperly raised for the first time on appeal, and, therefore, is not properly before this Court.

In light of our determination, we need not reach the plaintiff’s remaining contentions. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 17, 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its 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]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012] Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 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 (William A. Viscovich, J.), entered February 7, 2011. The judgment, entered pursuant to a decision of the same court dated October 14, 2010, insofar as appealed from, after a nonjury trial, dismissed the complaint except for so much thereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 14, 2010 is deemed a premature notice of appeal from the judgment entered February 7, 2011 (see CPLR 5520 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of defendant on most of plaintiff’s claims, and a judgment was entered dismissing the complaint except for so muchthereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff raises only evidentiary objections.

Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013] see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014