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 (Reginald A. Boddie, J.), entered October 18, 2011. The order denied defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendants’ motion for summary judgment dismissing the complaint is granted.

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

In support of their motion, defendants proffered an affidavit by their claims examiner which was sufficient to establish that defendants’ denial of claim form 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]) and that plaintiff had submitted its claims to defendants more than 45 days after the date the services had been rendered to plaintiff’s assignor (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Defendants’ denial of claim form adequately advised plaintiff of the basis for the denial, and it further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Plaintiff failed to offer any explanation for the delay.

Accordingly, the order is reversed and defendants’ motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 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 (Pamela L. Fisher, J.), entered June 13, 2011. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint, finding that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant’s denial of the claims was untimely.

The claim forms at issue were received by defendant on November 23, 2009 and November 24, 2009, respectively. It is undisputed that defendant did not deny the claims until January 12, 2010. Defendant demonstrated that, on November 19, 2009, prior to its receipt of the claim forms at issue, it had mailed a letter scheduling an EUO for December 4, 2009 to plaintiff’s assignor. (It is noted defendant has established that all mailings in this case were done 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)]). Consequently, a toll of defendant’s time to pay or deny the claims at issue went into effect at the time they were submitted (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 further showed that it had mailed a second letter rescheduling the EUO for December 10, 2009 at plaintiff’s assignor’s request, and a follow-up letter within 10 days after plaintiff’s assignors had failed to appear on December 10, 2009, scheduling the EUO for January 8, 2010. However, defendant was also required, at the same time it mailed its final EUO scheduling letter, to inform plaintiff of the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (Insurance Department Regulations [*2][NYCRR] § 65-3.6 [b]). As argued by plaintiff on appeal, defendant’s December 11, 2009 letter to plaintiff failed to specifically identify the party from whom the EUO had been requested. Since defendant failed to demonstrate that it had complied with Insurance Department Regulations (NYCRR) § 65-3.6 (b), it lost the benefit of the toll. As a result, defendant failed to demonstrate that its denial of claim form had been timely mailed, and it was therefore not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 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 (Patricia Anne Williams, J.), entered July 8, 2011. The order granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery.

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 to vacate the notice of trial, to compel plaintiff to provide complete responses to defendant’s discovery demands, and to produce plaintiff’s owner, Viviane Etienne, M.D., for an examination before trial.

Defendant established that the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. Moreover, defendant’s outstanding discovery demands seek to ascertain whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and in light of the fact that defendant set forth specific and detailed reasons for seeking the discovery at issue, the Civil Court properly granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; see also Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139[A], 2011 NY Slip Op 51551[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff’s remaining contention lacks merit, the order is affirmed (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 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 (Alan L. Lebowitz, J.H.O.), entered July 26, 2010. The order granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial, and denied the branch of plaintiff’s cross motion seeking a protective order.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s
discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial (EBT), and denied the branch of plaintiff’s cross motion seeking a protective order.

While plaintiff argues that defendant is not entitled to the discovery ordered by the court, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s demand for document production (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]; see also Benfeld v Fleming Props., LLC, 44 AD3d 599 [2007]). Here, defendant failed to demonstrate that plaintiff’s tax returns were properly discoverable and, as a result, at this juncture, defendant’s request for such documentation should have been denied. Defendant, however, established its [*2]entitlement to depose Dr. Wilkins Williams (see CPLR 3101 [a]; see also All Boro Psychological Servs., P.C., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U]). In light of the foregoing, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff’s cross motion seeking a protective order.

Plaintiff’s contentions concerning those branches of its cross motion which sought to compel defendant to produce its special investigator and claims examiner for EBTs and to produce all documentation connected to its Special Investigation Unit’s investigation are not properly before this court. Since the Civil Court did not address these branches of plaintiff’s cross motion, they remain pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Young Chool Yoo v Rui Dong Wang, 88 AD3d 991 [2011]; Katz v Katz, 68 AD2d 536, 542-543 [1979]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 15, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 24, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 24, 2012, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the chiropractic services underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 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 (Pamela L. Fisher, J.), entered November 1, 2011, deemed from a judgment of the same court entered December 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted affidavits by its claims representatives which sufficiently established the timely mailing of the denial of claim forms (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 claims had been denied on the ground that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, an affidavit by defendant’s claims representative established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmation of plaintiff’s attorney did not raise a triable issue of fact in opposition to defendant’s motion.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal. Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 08, 2013

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 26, 2011. The order, insofar as appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint. The order, insofar as cross-appealed from by plaintiff, denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, with $25 costs to defendant.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground, among others, that defendant was precluded from offering any evidence in support of its defenses because it had failed to timely comply with a so-ordered discovery stipulation. Defendant cross-moved for summary judgment dismissing the complaint on the grounds of lack of medical necessity and outstanding verification. The Civil Court denied both motions; found, among other things, that defendant had established timely denials of the claims at issue; and limited the trial to medical necessity. This appeal and cross appeal ensued.

Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.

As to two of the three claims at issue in this case, defendant submitted affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s [*2]determinations that there was a lack of medical necessity for the services. In opposition, plaintiff failed to submit any medical evidence to rebut the peer review reports. Since plaintiff has not challenged the Civil Court’s finding that, in effect, defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these two claims should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; 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]).

As to the remaining claim, the affidavits submitted by defendant were sufficient to establish that defendant had timely mailed requests and follow-up requests for verification (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]), and that plaintiff had failed to respond to the verification requests prior to the commencement of this action. Plaintiff offered no evidence in opposition. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing as premature so much of the complaint as sought to recover upon this claim should also have been granted, as defendant’s time to pay or deny the claim had not yet elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 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 (Pamela L. Fisher, J.), entered November 1, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its treating chiropractor for a deposition. Plaintiff cross-moved for summary judgment. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U][App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant is defending this action on the ground, among others, that the services rendered lacked medical necessity, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 08, 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 (Robin S. Garson, J.), entered June 21, 2011. The order denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint.

ORDERED that the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint, finding that defendant had established that it had paid the subject claims at the highest rate available for acupuncture services as set forth in the chiropractic fee schedule.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to plaintiff’s claims for acupuncture services billed under codes 97810 and 97811, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the Civil Court’s order as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover for services billed under those codes. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99203, defendant should not have been awarded summary judgment [*2]dismissing so much of the complaint as sought to recover the $75.11 that had been billed under that code.

As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 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 (Ingrid Joseph, J.), entered August 2, 2010. The order denied plaintiff’s motion for summary judgment and granted 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant sufficiently demonstrated that it addressed the letters to plaintiff’s assignor, defendant’s insured, at the address provided to it by its insured. In addition, defendant demonstrated that copies of the IME scheduling letters had been addressed to, and received by, plaintiff’s assignor’s attorney (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013