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 (Richard G. Latin, J.), entered June 13, 2011. 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 reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, 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 medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d [*2]136[A], 2009 NY Slip Op 51502[U] [App Term, 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 & 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 & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Dawn Jimenez Salta, J.), entered August 10, 2011. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the services at issue were not medically necessary. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 August 18, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009 and a claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009, which claim defendant alleged it had never received, and a claim for $42.02, which was the balance found to be due after defendant had allegedly paid plaintiff for services rendered from December 31, 2008 to January 28, 2009 pursuant to the worker’s compensation fee schedule. The court otherwise denied plaintiff’s cross motion for summary judgment.

On appeal, defendant argues that its motion for summary judgment dismissing the complaint should have been granted because it demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to
appear for duly scheduled examinations under oath (EUOs). Defendant had raised this defense in the Civil Court with regard to a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for services rendered on January 28, 2009, a claim for $249.96 for services rendered on January 19, 2009 and a claim for $272.92 for services rendered on February 17, 2009. Defendant did not raise this defense in the Civil Court with respect to the claim for $319.97 for services rendered on February 17, 2009 and the claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009, nor did it establish that it had timely denied the latter claims on that ground. Since defendant did not, in its appellate brief, proffer any argument as to why the Civil Court’s award of summary judgment to plaintiff on these claims was in error, we do not disturb the part of the order appealed from that granted summary judgment to plaintiff with respect to so much of the complaint as sought to recover upon these two claims.

Defendant demonstrated that the first four claims listed above had been denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for duly scheduled EUOs. The affidavits submitted by defendant established that its EUO scheduling letters had been mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that the EUOs had been properly scheduled (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant also established that plaintiff had failed to appear at the duly scheduled EUOs, through both an affidavit by the investigator who had been assigned to conduct the EUOs, and statements made on the record by the same investigator (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint [*3]as sought to recover upon a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 February 15, 2011. 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 reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion.

In support of its cross motion, defendant submitted an affidavit by a supervisor of Media Referral, Inc., a company retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests had been timely mailed (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, among other things, an affidavit by the doctor who was to perform the physiatrist/PMR IMEs, as well as an affidavit by the chiropractor who was to perform the chiropractic IMEs, which were sufficient to establish that plaintiff’s assignor had [*2]failed to appear for those 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 claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Carmen R. Velasquez, J.), entered March 1, 2011. 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 moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely denied because the medical supplies at issue were not medically necessary. Defendant appeals from an order of the Civil Court which denied its motion.

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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supplies at issue. In [*2]opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant’s motion for summary judgment dismissing the complaint should have been granted (see 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 & 11th Jud Dists 2007]).

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: November 26, 2013

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 (Richard G. Latin, J.), entered March 25, 2011. 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 reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding that plaintiff had established its prima facie entitlement to summary judgment, that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and that defendant had timely and properly requested IMEs. Thus, the only issue for trial was “the no-show of the assignor at the IMEs.”

In support of its cross motion, defendant submitted an affidavit by the healthcare professional retained to perform the IMEs which established that plaintiff’s assignor had failed to appear at IMEs on June 12, 2009 and June 25, 2009. As an appearance at an IME is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 [*2]NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Cheree A. Buggs, J.), entered December 8, 2010. 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, the Civil Court denied defendant’s motion for summary judgment, finding that plaintiff had raised a triable issue of fact and stating that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supplies at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, and as [*2]plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see 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 & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Margaret A. Pui Yee Chan, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of the order as denied the branches of defendant’s motion seeking to dismiss so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

Defendant established that it had timely denied the claims at issue (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]) on the ground that each assignor had failed to appear for examinations under oath (EUOs). It [*2]further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is reversed and the branches
of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

Pesce, P.J., and Solomon, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath. Consequently, in my opinion, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes were properly denied.

Accordingly, I would affirm the order, insofar as appealed from.
Decision Date: November 21, 2013

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 (Dawn Jimenez Salta, J.), entered November 26, 2010. The order denied defendant’s motion to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied as to so much of the complaint as seeks to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14, and by further providing that defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial solely with respect to the issue of plaintiff’s billing practices; 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 to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy, plaintiff’s owner and the treating provider, respectively, for examinations before trial (EBTs) regarding plaintiff’s “treatment” and “billing practices,” and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied [*2]plaintiff’s claims on the ground that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

With respect to plaintiff’s claims for the sums of $114, $300.32, and $931.68, it is undisputed that these claims were not paid or denied within 30 days of their receipt. Nor does defendant assert that the EUOs of Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy were requested, or pending, during that time. We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate that these three claims had been timely denied and therefore did not establish that its defenses as to these three claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to so much of the complaint as sought to recover upon these claims.

In opposition to the remaining branches of plaintiff’s motion, defendant established that the EUO scheduling letters had been timely mailed (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]; ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for the EUOs (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]) and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14 are denied.

With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.” However, as defendant’s denial of claim form did not raise any defense based on “treatment,” defendant is precluded from raising any such defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs solely with respect to the issue of plaintiff’s billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]; Arco Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 21, 2013

Civil Court of the City of New Y ork, Kings County

003036/11

Attorneys for Plaintiff NATURAL THERAPY ACUPUNCTURE, P.C. a/a/o ADA OKIKA

The Rybak Firm, PLLC

1810 Voorhies Avenue, 3rd Floor

Brooklyn, NY 11235

Attorneys for Defendant STATE FARM MUTUAL INSURANCE COMPANY

McDonnell & Adels, PLLC

401 Franklin Avenue

Garden City, NY 11530

Carol Ruth Feinman, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this Notice of Motion for Summary Judgment:

PapersNumbered

Notice of Motion and Affidavits Annexed (Plaintiff)………..1 & 2 [Exh. 1-5]

Opposition and Affidavits Annexed …….(Defendant)…………3 [Exh. 1-6]

Notice of Motion and Affidavits Annexed..(Defendant)…….. 4 & 5 [Exh. 1-10]

Opposition and Affidavits Annexe (Plaintiff)…………………..6 [Exh. 1-8]

Replying Affidavits (Defendant) ……………………………7 [Exh. E-M]

Other………Plaintiff Post-Motion Memorandum……………..8 [Exh. 1]

Defendant Post-Motion Memorandum9 [Exh. M,N,O,P,L]

Upon the foregoing cited papers and after oral argument, the Decision/Order on [*2]the defendant’s motion seeking Summary Judgment and the plaintiff’s motion seeking Summary Judgment are decided herein as follows:

Plaintiff health service provider brought the within no-fault insurance action against the defendant insurance company to recover first-party no-fault benefits for medical services rendered, pursuant to §5106 of the New York State Insurance Law (hereforth “Insurance Law”) and Regulations of the New York State Insurance Department [11 N.Y.C.R.R. §65-1.1 et. seq.]. Plaintiff is seeking to recover no-fault benefits in the total amount of $600, including statutory interest and attorney fees, for services rendered to its assignor, Ada Okika, between March 9, 2010 to April 16, 2010, relating to injuries allegedly arising out of a motor vehicle accident which occurred on February 13, 2010. Plaintiff seeks reimbursement for no-fault benefits for the following invoices:

a. $535.00 for services rendered between March 9, 2010 and April 10, 2010; and

b. $65.00 for services rendered on April 16, 2010.

Defendant moves herein for an order granting summary judgment and dismissing plaintiff’s complaint as a matter of law, on the grounds that plaintiff failed to establish its prima facie entitlement to no-fault payments, that plaintiff breached a condition precedent to coverage, to wit, its failure to appear for an examination under oath (hereinafter “EUO”), pursuant to 11 N.Y.C.R.R §65-1.1 and §65-3.5, and that plaintiff is fraudulently incorporated, thus arguing that plaintiff is not entitled to receive no-fault payment.

Plaintiff opposes defendant’s application, arguing the reasonableness of defendant’s EUO request, and that such notices and denials from defendant were neither properly generated nor timely mailed.

Plaintiff subsequently also moves herein for an order granting summary judgment as a matter of law, on the grounds that it has established its prima facie case, in that Ada Okika assigned her “no-fault” benefits to plaintiff health service provider pursuant to the terms of the insurance policies sold by the defendant, and plaintiff timely submitted invoices and/or bills to defendant in accordance with the New York State Insurance Law. The plaintiff asserts herein that the defendant failed to properly pay or deny the various claims within thirty (30) days of receipt, as required by the New York State Insurance Law and Regulations.

Defendant opposes Plaintiff’s application, arguing that plaintiff failed to establish its prima facie entitlement to reimbursement, and also that plaintiff fraudulently incorporated its practice.

The court notes that there are two sets of motions filed in the instant action, [*3]referencing the same applications to the court, wherein both parties are seeking relief in their favor. Defendant filed a summary judgment motion seeking relief, in which plaintiff filed opposition papers. Plaintiff also subsequently filed a summary judgment motion seeking relief, in which defendant filed opposition papers. This court, in the interest of judicial economy, shall hereby decide both parties’ motions in this instant decision. The court has considered all submitted documents of both parties herein, along with the additional post-motion briefs the court directed both parties to submit. The court finds that this will cause no prejudice to either party.

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. See, Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Tortello v. Carlin, 260 AD2d 201 [1st Dept. 1999]; Cox v. Kingsboro Medical Group, 214 AD2d 150 [2nd Dept. 1995]. The burden of proof, as well as persuasion, rests with the proponent of the summary judgment motion. Once the burden is satisfied, the opponent of the motion must produce sufficient evidence, in admissible form, establishing the existence of at triable issue of fact. See, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], citing Zuckerman v. City of New York, 49 NY2d 557 [1980].

Pursuant to both the Insurance Law and the Regulations promulgated by the Superintendent of Insurance, an insurer is required to pay or deny a claim for no-fault automobile insurance benefits within thirty (30) days from the date a claimant supplies proof of claim forms. See, Insurance Law §5106(a); 11 N.Y.C.R.R. §65.15(h). Failure to pay benefits within the 30-day requirement renders the benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. See 11 N.Y.C.R.R. §65-3.9(a). In addition, the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See, Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 [1997].

After oral argument previously conducted, this court found that plaintiff had established its prima facie entitlement to no-fault reimbursement. However, the court determined that the remaining issues to be determined were the reasonableness of defendant’s EUO verification request, the timeliness and proper mailing of the EUO verification request, and personal knowledge of the assignor’s appearance or failure of same. The court reserved decision and directed both parties to submit additional briefs regarding these remaining issues, which the court notes it only received additional briefs from defendant. Thus, the court shall render its decision based upon the record herein.

REASONABLENESS OF EUO REQUEST

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person … shall … as may reasonably be required, submit to examinations under oath by any person named by the [insurer] and subscribe to same. Another condition to coverage under this section sets forth that an eligible person shall [*4]submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.” See, 11 N.Y.C.R.R. § 65—1.1(d) [Sec. I. Conditions, Proof of Claim (b) ].

It is well settled that a defendant insurance company is within its rights to request an examination under oath (“EUO”) of a plaintiff provider based upon the fact that all no-fault endorsements issued in the state since April 2002 allow for the taking of same, for the purposes of verifying a claim. Moreover, an EUO of a medical provider has been held to be appropriate where the insurer can demonstrate a valid and necessary reason for doing so. See 11 N.Y.C.R.R. §65-1.1. See also, W & Z Acupuncture, P.C. v Amex Assurance Co., 24 Misc 3d 142(A) [App. Term 2nd, 11th & 13th Jud. Dists. 2009]. Appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay no-fault benefits. See, Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141(A) [App. Term 2nd, 11th and 13th Jud. Dists. 2010].

The regulations provide for an examination under oath. The term “examination under oath” is not defined by the no-fault regulations. Word used in regulations that are not specifically defined in the regulations are to be given their ordinary meaning. See, Oefelein v. Town of Thompson Planning Board, 9 AD3d 556 [3rd Dept.2004]; Parker v. Kelly, 140 AD2d 993, [4th Dept.1988]; McCarter v. Beckwith, 247 App.Div 289 [2nd Dept.1936]. Examination is defined as the questioning of a witness by an attorney. See, Law.Com Law Dictionary. Examination can also be defined as a formal interrogation. See, Webster’s Unabridged Dictionary 2nd Ed., [1998; p. 673]. Therefore, the term “examination under oath” as used in the no-fault regulations means the insurer can request the injured party or the assignee of the injured party appear and give oral testimony after having been sworn or under affirmation.

In the instant record, defendant proffers the Affidavit of Dawn Madalone, an investigator employed in defendant’s Special Investigative Unit. Ms. Madalone attests to her personal knowledge of the instant matter, due to her involvement in the investigation of plaintiff provider. Ms. Madalone sets forth the factors and circumstances which led to defendant insurance company to initially investigate plaintiff. Ms. Madalone also sufficiently substantiates the defendant’s request for an EUO, as a part of defendant’s further investigation and verification of plaintiff no-fault reimbursement claims. Moreover upon further review, defendant insurance company did in fact advise plaintiff provider in the EUO scheduling letters that it requested an EUO based on, inter alia, the “rendition and necessity of [plaintiff’s] billing practices, as well as the patten in the nature and frequency of the medical services.” These letters clearly delineate defendant’s further reasons as to why it sought verification of the claims.

However, despite defendant’s arguments herein for seeking such verification, the regulations do not provide an insurer with the right to obtain written documentation other than such documentation as may be demanded as verification. In addition to [*5]appearing for an examination under oath, the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. See, 11 NYCRR 65—1.1. The regulations also do not give the insurer to right to ask an assignee to produce documents relating to the corporate structure or finances of a medical provider. See, 11 NYCRR 65—3.5(a). Upon receipt of the completed verification form, the insurer can request additional verification. See, 11 NYCRR 65—3.5(b). The regulations only permit the insurer to obtain written information to verify the claim. See, 11 NYCRR 65—3.5(c); See also, generally, V.M.V. Management Co., Inc. v. Peerless Ins., 15 AD3d 647 [2nd Dept., 2005]. Nothing in the No—Fault regulations permits an insurer to request an assignee to produce corporate organizational and financial documents a week in advance of an EUO.

However, before this court can refuse to accept defendant’s arguments in favor of its verifications requests seeking EUOs, plaintiff must first establish that it had objected to or responded to such requests indicating and specifying the claims of unreasonableness. In the present case, the plaintiff provider has in no way established that it ever objected to any part of the defendant’s EUO notices. The Appellate Term has clearly decided that due to such a failure by a plaintiff provider to submit any objections prior to an application to the court, it will decline to consider the plaintiff’s argument. See for example, Viviane Etienne Medical Care, P.C. v State Farm Mutual Ins. Co., 35 Misc 3d 127(A) [App. Term 2nd Dept. 2012]; Crescent Radiology v. American Transit, 31 Misc 3d 134(A) [App. Term 2nd Dept. 2011]; See also, Westchester Medical Center v New York Central Fire, 262 AD2d 553 [2nd Dept. 1999]. Thus, this court, in following precedent, will also decline to consider the instant plaintiff’s argument.

In light of the findings above, plaintiff’s application seeking summary judgment is hereby denied.

TIMELY AND PROPER MAILING OF EUO and PERSONAL KNOWLEDGE OF FAILURE TO APPEAR

In order to establish that the claimant failed to appear for the scheduled EUOs, the defendant is required to establish that the EUO scheduled letters were mailed. See for example, Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept. 2006]. There are three distinct methods to demonstrate proof of mailing: (1) provide an affidavit from an individual with personal knowledge of the actual mailing (see for example, Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139(A) [N.Y.Dist.Ct. 2008]); (2) acknowledgment by the adverse party that it received the subject document (see for example, A.B. Medical Services v. New York Central Mutual Fire Ins. Co., 3 Misc 3d 136(A) [App. Term 2nd & 11th Jud. Dists. 2004]); and (3) where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed (see for example, Lenox Hill Radiology, P.C. v. Tri State Consumer Ins. Co.,31 Misc 3d 13 [App. Term 1st Dept. 2010]). [*6]

Additionally, the defendant must also meet the burden of establishing with an affidavit by a person with personal knowledge that the plaintiff’s assignor failed to appear for the scheduled EUOs (see, Infinity Health Products, LTD., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007].

In support of its motion, defendant submitted herein both the Affidavit of Dawn Madalone and the Affidavit of Neil Gahl, Claims Representatives employed by defendant insurance company. Contrary to plaintiff’s contentions, the court finds that such affidavits of Ms. Madalone and Mr. Gahl sufficiently establishe the standard office procedures and practices for the preparation and generation of verification letters and NF-10 denial of claim forms in which defendant institutes. Specifically, both Affidavits sufficiently establish the process defendant institutes regarding all incoming mail of proof of claims, as well as the process defendant institutes regarding all out-going mail, including but not limited to the verification request letters and NF-10 denials (of which are previously prepared by a designated claims representative). In addition, both Affidavits sufficiently establish the process of mailing of same by way of daily pick up by a U.S. Postal Service. Both Affidavits assert that defendant received plaintiff’s first proof of claim invoice on April 19, 2010, and that an EUO verification request/delay letter was thereafter issued and mailed on May 4, 2010, directing the plaintiff to appear for the EUO on June 1, 2010. Additionally, upon defendant’s receipt of an additional proof of claim on April 30, 2010, an additional verification request/delay letter was issued and mailed on May 14, 2010. Both Affidavits indicated that upon plaintiff’s failure to appear for the initial EUO scheduled date of June 1, 2010, a follow-up EUO request was issued and mailed to plaintiff on June 7, 2010, directing plaintiff to appear for the EUO on June 29, 2010. Both Affidavits also indicated that upon plaintiff’s failure to appear for the re-scheduled EUO of June 29, 2010, a denial of no-fault reimbursement was thus issued, based upon plaintiff’s failure to satisfy a condition precedent of attending the EUO.

In addition, the defendant’s presentation herein of a copy of its mail receipt by United States Postal Service is not only additional prima facie proof of mailing, but is key to creating the presumption of receipt. See, Hernandez v. Merchants Mutual Ins. Co., 14 Misc 3d 1215(A) [Civ. Ct. Bronx Co. 2006].

The defendant further submitted herein the Affirmation of Joseph A. Schwarzenberg,

Esq. , who attested he was employed as an attorney at the law offices of McDonnell & Afels, PLLC, which represents the defendant herein. Mr. Schwarzenberg asserted that he was assigned to handle the EUO, and was present in the office where the EUOs were scheduled to be conducted, on both dates of June 1, 2010 and June 29, 2010, wherein [*7]plaintiff failed to appear on either date. The Court finds that such Affirmation of Mr. Schwarzenberg sufficiently attests to having personal knowledge of the plaintiff’s failure to appear for three duly scheduled EUOs. See, Infinity Health Products, Ltd., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007]; Chi Acupuncture, P.C. v. Kemper Auto & Home Ins. Co., 14 Misc 3d 141(A) [App. Term 9th & 10th Jud. Dists. 2007].

In reviewing the contentions made by the plaintiff within its opposition to defendant’s application for summary judgment, the court finds that it has failed to rebut the presumption of defendant’s prima facie timely mailing of the EUO verification requests and denials, and plaintiff’s failure to appear for either of the properly scheduled EUOs. In light of such, the Court finds that the plaintiff’s submissions in opposition are insufficient to raise a triable issue of fact as to whether the defendant timely issued a denial of its outstanding claims. See for example, Zuckerman v. City of New York, 49 NY2d 557 [1980].

In light of the this condition precedent, it is clear that plaintiff’s failure to comply (or even properly object to preserve its objection for court review) with a condition precedent to coverage voids the policy contract ab initio, and defendant is not obligated to pay the claim, regardless of whether defendant issued denials beyond the thirty (30) day period. See for example, Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept. 2011]; see also, Neomy Medical, P.C., v American Transit Ins. Co., 31 Misc 3d 1208(A) [Kings County Civ. Ct.]. This court finds, based upon the foregoing analysis, that the plaintiff has failed to establish its entitlement to summary judgment, and the defendant has sufficiently established its entitlement to summary judgment herein regarding the plaintiff’s claims. See, Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980].

Based upon the foregoing, the plaintiff’s application seeking summary judgment is hereby denied. In addition, the defendant’s application seeking summary judgment against the plaintiff is hereby granted, and the matter is dismissed.

This constitutes the Decision and Order of this Court.

DATED:November ___, 2013

Brooklyn, New York

_____________________

CAROL RUTH FEINMAN

Judge, Civil Court