[*1]

Supreme Court, New York County, October 8, 2013

APPEARANCES OF COUNSEL

Law Offices of James F. Sullivan, P.C., New York City (Giovanna Tuttolomondo of counsel), for plaintiff.

Law Offices of Robert E. Dash, P.C., Melville (Melissa R. Abraham-Lofurno of counsel), for Stand-Up MRI of the Bronx, P.C., defendant.

I. Background

Plaintiff moves for a default judgment against all defendants except Five Boro Psychological and Licensed Master Social Work{**45 Misc 3d at 173} Services, PLLC, Lincoln Medical and Mental Health Center, New York City Health and Hospitals Corporation, Stand-Up MRI of the Bronx, P.C., and Transcare Ambulance Services. (CPLR 3215.) Plaintiff moves for summary judgment against Stand-Up MRI. (CPLR 3212 [b].) On each ground, against both Stand-Up MRI and the remaining nine defendants, plaintiff’s motion seeks a judgment declaring that plaintiff owes no duty to compensate them pursuant to Insurance Law § 5103 for expenses incurred from a collision November 15, 2009, involving defendant Curry and a motor [*2]vehicle for which plaintiff issued an insurance policy. (CPLR 3001, 3212 [b]; 3215 [e].) For the reasons explained below, the court denies all the relief sought by plaintiff’s motion.

Plaintiff bases both prongs of its motion on Curry’s nonappearance for an examination under oath (EUO), to which plaintiff is entitled under the policy. (See 11 NYCRR 65-1.1 [d].) The policy’s mandatory personal injury protection provisions condition the insurer’s payment of a claim on “full compliance with the terms of this coverage.” (Id.) Upon the insurer’s request, “the eligible injured person or that person’s assignee or representative shall . . . as may reasonably be required submit to examinations under oath . . . .” (Id.)

II. Plaintiff Scheduled the EUO at Reasonably Convenient Times

[1] 11 NYCRR 65-3.5 (e) requires that an EUO be “held at a place and time reasonably convenient to the applicant” for insurance coverage. Plaintiff scheduled Curry’s EUO at two different times on different days of the week, both during business hours. Although business hours may be inconvenient for applicants who work during those hours, section 65-3.5 (e) also required plaintiff to notify Curry, as it did, that she would be reimbursed for any earnings lost by complying with the EUO request. Plaintiff notified her further that, if she advised plaintiff that the scheduled time was in fact inconvenient, plaintiff would reschedule the EUO. In light of these available accommodations, and absent any notice from Curry that the scheduled time was inconvenient, the scheduling during business hours was reasonable.

III. The Missing Evidence

[2] Yet 11 NYCRR 65-3.5 (e) requires further that plaintiff’s request for the EUO, to establish Curry’s or her assignee’s{**45 Misc 3d at 174} claim, “must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.” Nowhere do plaintiff’s admissible documents or its witnesses, including the claims representative assigned to defendants’ claims for coverage and a supervisor of plaintiff’s legal department, responsible for EUO requests, indicate any justification, need, or explanation for Curry’s EUO. The director of plaintiff’s special investigations unit (SIU) attests simply that it “was requested to conduct an investigation” of the motor vehicle collision in which Curry was involved. (Aff in support of Giovanna Tuttolomondo, exhibit J, ¶ 6.) “As part of SIU’s investigation,” an SIU investigator “attempted to examine the claimant, CHRISTINA CURRY, under oath.” (Id.)

Moreover, even though only four months elapsed between when Curry provided her address on her application for insurance coverage and plaintiff mailed its EUO requests to that address, no witness attests that Curry did not notify plaintiff of an address change in the interim. Nor does plaintiff present any evidence that the applicant was notified of any obligation to inform the insurer of her change in address, particularly when she has assigned her rights to insurance benefits to her medical care providers and retains no more interest in obtaining benefits paid to her. This incomplete record leaves a question whether plaintiff mailed its EUO requests to Curry’s current address and whether she ever received them.

More importantly, no witness attests to Curry’s nonappearance at either of the scheduled EUOs. The director of plaintiff’s SIU just lays the foundation for the admissibility of business records that he claims show her nonappearances. While these records may be admissible, plaintiff does not present them. The SIU director’s recitation of their contents is hearsay. (E.g. People v Joseph, 86 NY2d 565, 570 [1995]; Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 [1st Dept 2008]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2d Dept 2004]; Wagman v Bradshaw, 292 AD2d 84, 87-88 [2d Dept 2002]; see Giordano v Berisha, 45 AD3d 416, 417 [1st Dept 2007]; Washington v Montefiore Med. Ctr., 9 AD3d 271, 272 [1st Dept 2004]; Marina Towers Assoc. v National States Elec. Corp., 203 AD2d 49, 50 [1st Dept 1994].)

IV. Conclusion

The absence of justification for the EUO as required by 11 NYCRR 65-3.5 (e) and of admissible evidence that the eligible injured person Curry actually failed to appear for the EUOs{**45 Misc 3d at 175} requested by plaintiff (see 11 NYCRR 65-1.1 [d]), precludes a summary declaratory judgment to plaintiff at this stage. (Ahead Realty LLC v India House, Inc., 92 AD3d 424, 425 [1st Dept [*3]2012]; Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 100-101 [1st Dept 2009]; Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 254 [1st Dept 2006]; see United States Fire Ins. Co. v American Home Assur. Co., 19 AD3d 191, 192 [1st Dept 2005]; 319 McKibben St. Corp. v General Star Natl. Ins. Co., 245 AD2d 26, 29-30 [1st Dept 1997].) Absent a showing of plaintiff’s compliance with the governing regulation (11 NYCRR 65-3.5 [e]), and Curry’s noncompliance with the regulations and policy (11 NYCRR. 65-1.1 [d]; 65-3.5 [e]), plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI (CPLR 3212 [b]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]; Chubb Natl. Ins. Co. v Platinum Customcraft Corp., 38 AD3d 244, 245 [1st Dept 2007]; Atlantic Mut. Ins. Co. v Joyce Intl., Inc., 31 AD3d 352 [1st Dept 2006]), or a default judgment as sought against the nine other defendants. (CPLR 3215 [f]; Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]; Martinez v Reiner, 104 AD3d 477, 478 [1st Dept 2013]; Utak v Commerce Bank Inc., 88 AD3d 522, 523 [1st Dept 2011]; Mejia-Ortiz v Inoa, 71 AD3d 517 [1st Dept 2010].)

Consequently, the court denies plaintiff’s motion for a default declaratory judgment and for a summary declaratory judgment. (CPLR 3001, 3212 [b]; 3215 [f].) This decision constitutes the court’s order.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 8, 2013

APPEARANCES OF COUNSEL

Moshe D. Fuld, P.C., Brooklyn (David Karp and Cheryl Scher of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for respondent.

{**42 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms in question and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 3}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In an order entered August 17, 2011, the Civil Court found that defendant had established, for all purposes in the action, that defendant had issued timely and proper denials, and limited the trial to plaintiff’s “prima facie case” and the issue of medical necessity. Plaintiff appeals, as limited by the brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.

As plaintiff argues, it proved the submission of the relevant claim forms to defendant by annexing the denials, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Moreover, contrary to defendant’s argument on appeal, plaintiff established the fact and the amount of the loss sustained by demonstrating that its claim forms were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences [*2]and/or events recorded therein, and defendant did not rebut that showing. Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 4}

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 2013

Supreme Court, New York County

109003/11

Plaintiff:

Law office of James F. Sullivan

52 Duane Street, 7th Floor

New York, New York 10007

Defendant:

Melanie B. Nolan

80 Marcus Drive

Melville, New York 11747

Jazmine L. Rodriguez – pro se

351 Chester Street, Apt. 2F

Brooklyn, New York 11212

The Rybak Law, PLLC – for Deng Acupuncture, Compas Medical, New Way Medical,

and T & J Chiropractic

1810 Voorhies Avenue, 3rd Floor

Brooklyn, New York 11235

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the “Medical Provider Defendants”). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.

Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff’s motion for summary judgment.

DISCUSSION

Default Judgment

CPLR 3215 provides that “[w]hen a defendant has failed to appear, . . . the plaintiff may seek a default judgment against him. . . . The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v Brannigan, 232 AD2d 206, 206 (1st Dep’t 1996). [*2]

Here, plaintiff’s motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff’s complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff’s motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff’s motion.

Summary Judgment

The Court of Appeals has stated, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Mfrs.,Inc., 46 NY2d 1065, 1067-1068 (1979); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Under the above standard, plaintiff’s motion for summary judgment is denied. In support of its motion, plaintiff proffers the affirmation of its attorney, Kaitlin Williams, which states alleged terms of the insurance policy requiring the eligible injured person to submit to examinations under oath at the reasonable request of the insurance company. However, such policy was not annexed to the affirmation, or provided in support of plaintiff’s motion. While plaintiff’s attorney’s affirmation conclusorily states certain condition precedents required by the insurance policy, which were allegedly breached by defendant Rodriguez, such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d at 1067. It is well settled that a “bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep’t 1981), aff’d 54 NY2d 715 (1981). As such, plaintiff has failed to establish prima facie entitlement to summary judgment as a matter of law. Moreover, the affidavits with regards to mailing and service, attached to petitioner’s motion, do not establish, as a matter of law, the terms of the insurance policy, or that defendant Rodriguez breached such terms. Thus, plaintiff’s motion for summary judgment is denied, without prejudice to move for summary judgment within 60 days of the filing of the note of issue, upon completion of discovery.

Accordingly, it is

ORDERED that the portion of plaintiff’s motion seeking a default judgment is granted, as against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C.; plaintiff shall settle order/judgment upon notice, in accordance with 22 NYCRR 202.48, returnable to room 119A; and it is further [*3]

ORDERED that the portion of plaintiff’s motion for summary judgment is denied, without prejudice to move after the completion of disclosure in accordance with this decision/order; and it is further

ORDERED that, within thirty days of entry, provider defendants shall serve a copy of this order upon all parties, together with notice of entry; and it is further

ORDERED that documentary discovery shall be exchanged and completed within 30 days; and it is further

ORDERED that depositions of the parties to commence on or before November 25, 2013, and completed on or before December 31, 2013; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, January 9, 2014 at 10:00 A.M., in Room 428, 60 Centre Street, New York, NY ^[FN1]

This constitutes the Decision and Order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

Check one:[ ] FINAL DISPOSITION[ X ] NON-FINAL DISPOSITION

Check if Appropriate: [ ] DO NOT POST C:HTFormatf5163030.txt

Footnotes

Footnote 1: The October 17, 2013 conference is adjourned to January 9, 2014 at 10:00 A.M.

[*1]

District Court of Suffolk County, Third District, September 30, 2013

APPEARANCES OF COUNSEL

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Garden City (Edward A. Cespedes of counsel), for plaintiff. Abrams, Cohen & Associates, New York City (David P. Turchi of counsel), for defendant.

{**41 Misc 3d at 984} OPINION OF THE COURT

C. Stephen Hackeling, J.

The above-captioned medical service provider plaintiff brings this action pursuant to the provisions of section 5106 of the Insurance Law to recover $1,876.76 of “no-fault” claim benefits after the defendant timely denied same upon the grounds that the claim was not “properly rated” and that the fees were in excess of the workers’ compensation fee [*2]schedule.

The parties stipulated to a framed issue trial and ask the court to direct judgment resolving the issue of whether paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010) limits claims reimbursement to 8.0 units (codes) per day for each provider individually or for all provider claims cumulatively. It is the defendant insurance company’s position that the provisions of 11 NYCRR 65-3.15 require the court to interpret paragraph 11 as an “exhaustion” regulation, similar to the $50,000 claim limitation contained therein, which acts as a bar to all subsequent claimants. The plaintiff’s contention is that the 8-unit rule is applied per claim and is not a bar to subsequent claimants.

The undisputed facts are that the plaintiff medical provider timely submitted claims for assorted code procedures constituting 10 units. It is the defendant’s undisputed contention that prior to the receipt of the plaintiff’s claim (and or verification responses) that the defendant already had reimbursed other providers for 8.0 units of services and it was therefore entitled to deny the plaintiff’s claim.

11 NYCRR 65-3.15 provides as follows:

“Computation of basic economic loss

“When claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor were made to the insurer prior to the exhaustion of the $50,000. If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims. If the insurer receives claims of a number of providers of services, at the same time,{**41 Misc 3d at 985} the payments shall be made in the order of rendition of services.”

Paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010) provides: “Multiple Physical Medicine Procedures and Modalities: When multiple physical medicine procedures and/or modalities are performed on the same day, reimbursement is limited to 8.0 units or the amount billed, whichever is less. The following codes represent the physical medicine procedures and modalities subject to this rule.”

The parties advised the court that the proffered issue is a matter of first impression and that no reported precedent exists which interprets paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule, Physical Medicine (2010). The court’s independent research corroborates this fact.

It is the court’s determination that the claim benefit exhaustion concept described [*3]in regulation 11 NYCRR 65-3.15 is inapplicable to the excessive fee limitations imposed by paragraph 11 of the Official New York Workers’ Compensation Medical Fee Schedule. They are distinct and separate regulatory mechanisms which make no reference to each other. The section 65-3.15 $50,000 policy limit is a “non-waivable” defense which need not be raised in the defendant’s denial of claim. (See New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2d Dept 2004]; Westchester Med. Ctr. v Allstate Ins. Co., 17 Misc 3d 1134[A], 2007 NY Slip Op 52257[U] [Sup Ct, Nassau County 2007].) The paragraph 11 excessive fee schedule defense is waivable and must be timely asserted in its claim denial or it is precluded from being thereafter interposed. (See Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005], citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997].)

The purpose of the workers’ compensation medical fee schedule is to prevent “excessive billing” by each individual provider and not to create an “exhaustion” of benefits competition between claimants as is clearly the intent of section 65-3.15. The fee schedule is a guideline on how to properly fill out and submit a claim. Such a finding is consistent with the Court of Appeals’ direction to interpret “no-fault” regulations in such a manner as to not frustrate the legislative intent of requiring prompt payment of benefits. (See Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007], citing Matter of Medical Socy. {**41 Misc 3d at 986}of State of N.Y. v Serio, 100 NY2d 854 [2003].) Paragraph 11 does not indicate that it regulates benefits for “all” claims on any given day.

The regulating authority could have easily included the phrase “for all claimants,” if that was its intent. The interpretation of regulations must be consistent with its authorizing statute. (See Matter of Luxenberg v Stichman, 208 Misc 706 [Sup Ct, Bronx County 1955], citing Lightbody v Russell, 293 NY 492 [1944]; see also generally Boreali v Axelrod, 71 NY2d 1 [1987].)

Accordingly, the court enters judgment for the plaintiff allowing reimbursement for 8 of its claims’ 10 billing units, in the sum of $1,876.76 plus appropriate statutory interest, attorneys fees and costs.

[*1]

District Court of Nassau County, First District, September 26, 2013

APPEARANCES OF COUNSEL

McCormack & Mattei, P.C., for defendant. Baker, Sanders, LLC, for plaintiff.

{**41 Misc 3d at 997} OPINION OF THE COURT

Fred J. Hirsh, J.

Defendant moves for summary judgment dismissing this action to obtain payment of first-party no-fault benefits.

Background

Garden State Anesthesia Associates, PA (GSAA) provided anesthesia services to Angela Gowan-Walker on March 8, 2011, March 29, 2011, April 12, 2011 and June 7, 2011. GSAA took an assignment of benefits from Gowan-Walker and submitted its claims for payment to defendant Progressive Casualty Insurance Company. Progressive acknowledged receipt of the claims for services provided as follows: (1) March 8, 2011 on April 27, 2011; (2) March 29, 2011 on May 9, 2011; (3) April 12, 2011 on May 23, 2011; and (4) June 7, 2011 on July 5, 2011. Progressive has not paid or denied any of these claims.

By letter dated May 4, 2011, Progressive advised GSAA its claim for services provided on March 8, 2011 was being delayed pending Gowan-Walker appearing for an examination under oath (EUO).

Even though Gowan-Walker appeared for an examination under oath on May 27, 2011, Progressive issued a follow-up letter to GSAA dated June 6, 2011 advising GSAA its claim for services provided on March 8, 2011 was being delayed pending Gowan-Walker appearing for an examination under oath.

Progressive sent a letter dated June 17, 2011 to GSAA advising GSAA processing of its claim for medical services provided on March 8, 2011 was being delayed pending receipt of medical records from Garden State Pain Management, Dr. David Brizer, Dr. Rajan Gulati, Dr. Moinhuddin Ahmed, Dr. Jennifer Heinze, Dr. Ralph Bowman, and Dr. Minesh Patel; the complete workers’ compensation file from the workers’ compensation carrier who had paid workers’ compensation benefits to Gowan-Walker in connection with a February 14, 2009 accident; the complete workers’ compensation file from the workers’ compensation carrier who had paid Gowan-Walker with workers’ compensation benefits for a March 22, 2006 accident; the complete injury and treatment records for an April 28, 2011 loss with GEICO; and{**41 Misc 3d at 998} the complete no-fault file from GEICO relating to the April 28, 2011 loss.

Progressive sent a follow-up notice to GSAA dated July 20, 2011 advising GSAA review of its claim for services provided on March 8, 2011 was still being delayed because the information and documentation referenced above had not yet been received.

Progressive sent letters identical to the June 17, 2011 and July 20, 2011 letters to GSAA regarding the claims submitted for services on March 29, 2011, April 12, 2011 and June 7, 2011. The letters relating to the March 29, 2011 and April 12, 2011 claims are dated June 17, 2011 and July 20, 2011. The letters relating to the June 7, 2011 claim are dated July 14, 2011 and August 17, 2011.^[FN1]

The papers do not reflect what information Progressive was able to obtain from the aforementioned medical providers and/or when the medical providers furnished Progressive with the requested information or documentation.

On June 23, 2011, Progressive sent a letter to Gowan-Walker’s attorney copied to Gowan-Walker advising them processing of her no-fault claim was being delayed pending receipt of the records from the abovementioned medical providers and the workers’ compensation files relating to Gowan-Walker’s March 22, 2006 and February 14, 2009 incidents and receipt of the no-fault file relating to Gowan-Walker’s April 28, 2011 motor vehicle incident. This letter also requested Gowan-Walker sign authorizations authorizing Progressive to obtain the files relating to the workers’ compensation matters and April 28, 2011 motor vehicle accident.

By letters dated September 14, 2011, October 20, 2011, December 2, 2011 and January 18, 2012 addressed to Gowan-Walker’s attorney and copied to Gowan-Walker, both were advised Progressive’s processing of Gowan-Walker’s no-fault claim was being delayed because Progressive had not yet received the workers’ compensation files relating to Gowan-Walker’s March 22, 2006 and February 14, 2009 incidents, the no-fault file relating to Gowan-Walker’s April 28, 2011 motor vehicle accident, and an authorization signed by Gowan-Walker authorizing release of those records.{**41 Misc 3d at 999}

None of the aforementioned letters sent by Progressive to Gowan-Walker or her attorney were copied to GSAA.

Progressive has never requested any verification or information directly from GSAA regarding its claims.

Discussion

An insurer must pay or deny a no-fault claim within 30 days of receipt unless its time to pay the claim is tolled or extended. (11 NYCRR 65-3.8 [a], [c].)

An insurer has 15 business days from receipt of a claim to request verification. (11 NYCRR 65-3.5 [b].) If an insurer does not receive the requested verification within 30 days of the original request, the insurer must, within 10 calendar days, issue a follow-up verification request to the party from whom verification is requested. (11 NYCRR 65-3.6 [b].)

An insurer does not have to pay or deny a claim until it receives all timely requested verification. (St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517 [2d Dept 2008]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2d Dept 2006].)

Where the verification requested is an examination under oath, the verification is deemed to have been received on the day the EUO was conducted. (11 NYCRR 65-3.8 [a].)

The EUO of Gowan-Walker was conducted on May 27, 2011. Therefore, Progressive had 30 days from that date to pay or deny GSAA’s claims unless its time to pay or deny the claims was otherwise tolled or extended.

Actions brought before an insurer has received all timely requested verification are premature and are subject to dismissal. (St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599 [2d Dept 2011]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 38 Misc 3d 134[A], 2013 NY Slip Op 50069[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)

Issuance of a delay letter that does not request verification does not toll the statutory time in which a claim must be paid or denied. (Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010].)

The purpose of verification is to permit the carrier to obtain and review all information relevant and appropriate to a claim{**41 Misc 3d at 1000} submitted by the provider so the carrier can determine if the claim should be paid or denied in whole or in part. (See Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; 11 NYCRR 65-3.5 [b].)

Verification should be requested only when there is a good reason to do so and should be done as expeditiously as possible. (11 NYCRR 65-3.2 [c].)

The term “verification” is not defined by the no-fault regulations. The appellate courts have not provided a workable definition of verification or a clear statement of what information or documentation can be obtained by verification. The no-fault regulations and case law do not clearly establish whether the carrier obtains an extension of time to pay a claim of all no-fault claims when there is any outstanding verification or whether the extension can be obtained if the requested verification is relevant or related to the specific claim.

A reading of the transcript of the EUO indicates much of the information sought relates to treatment provided to Gowan-Walker by doctors who were treating her for migraines and Multiple Sclerosis. GSAA provided anesthesia for diagnostic and therapeutic nerve blocks and injections.

In order to obtain a toll or extension to pay a no-fault claim because of outstanding verification, the information requested must have some rational or reasonable relationship to the specific provider’s claim. In some cases, the relationship between the requested verification and the claimant’s claim is obvious, e.g. requests for medical records for the treatment in question, letters of medical necessity for the testing or treatment, copies of X ray or MRI films or test results. In other cases, such as this one, the relationship between the requested verification and the claim is not apparent. In such cases, in order to obtain the extension of time to pay or deny the claim the insurer must offer some explanation regarding the nexus or relationship between the requested verification and the claim being reviewed.

An insurer does not obtain an extension of time to pay a no-fault claim when the verification requested and outstanding is not related or relevant to the insurer’s review and evaluation of the specific provider’s claim. Otherwise, an insurer could obtain a toll or extension of time to pay any no-fault claim by requesting verification from all providers or claimants and then not paying or denying the claim until all verification, related or unrelated to the specific claim, had been received. Permitting an{**41 Misc 3d at 1001} insurer to obtain a toll or extension of time to pay a no-fault claim until it receives verification that is unrelated and irrelevant to the insurer’s evaluation of the specific claim would be contrary to the stated purpose of the no-fault law which is to insure prompt payment of claims for medical treatment provided to motor vehicle accident victims regardless of fault. (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; 11 NYCRR 65-3.2 [a].)^[FN2]

The lack of merit of Progressive’s position can be gleaned from the affirmation of Progressive’s counsel that states “Defendant’s motion for Summary Judgment should be granted in its entirety as the medical services provided were not medically necessary as well as the assignor never had durable medical equipment delivered” even though medical necessity is not in issue in this action and the action does not involve durable medical supplies.

This court questions how information relating to an April 28, 2011 motor vehicle accident can be relevant to the evaluation of claims submitted for treatment provided on March 8, March 29 and April 12, 2011.

Questions of fact exist as to whether the letters which Progressive relies upon are verification requests or delay letters. The letters advise GSAA that Progressive is seeking information. However, the letters do not request any specific information or documentation from GSAA regarding or relating to its claims. These letters appear to be advising GSAA that payment of its claims will be delayed until the information requested from other medical providers and other insurers, some of which has no apparent relationship to GSAA’s claims, has been received. Nothing in these letters or defendant’s papers indicates how the information requested is related or relevant to Progressive’s evaluation of GSAA’s claims. The court could find these letters are delay letters, not verification requests.

For the foregoing reasons, defendant’s motion for summary judgment is denied.

Footnotes

Footnote 1: All of the letters sent by Progressive to GSAA state the claims are being denied on the grounds the fees are not in accordance with the no-fault fee schedule. However, the letters do not indicate how the fees in question deviate from the permissible fees. Progressive does not assert fee schedule as a basis for granting summary judgment.

Footnote 2: If a person sustains both orthopedic and dental injuries in the same motor vehicle accident, the insurer should not obtain a toll or extension of time to pay the claims of providers who are treating the injured party for the orthopedic injuries while awaiting verification of the claims for dental injuries unless there is a demonstrated relationship between the dental and orthopedic injuries.

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 (Lisa S. Ottley, J.), entered June 8, 2011. 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is denied; 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 granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the affidavit of defendant’s claims division employee 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 that were billed under codes 97813 and 97814 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99202, defendant should not have been awarded summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 that was billed under that code.

However, plaintiff was not entitled to summary judgment on that claim, as the affidavit submitted in support of plaintiff’s motion failed to establish that the claim form in question had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (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]). [*2]

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2013

District Court of Nassau County, First District

CV-002143-03

Werner, Zaroff, Slotnick, Stern & Ashkenazy, LLP

Attorneys for Plaintiff

360 Merrick Road

Lynbrook, New York 11563

516-568-1850

Rivkin Radler LLP

Attorneys for Defendant

926 RXR Plaza

Uniondale, New York

516-357-3000

Michael Ciaffa, J.

New York’s no-fault scheme is designed to encourage the prompt resolution of no-fault claims. Toward that end, courts have the power and duty to apply the law in a manner consistent with that broad objective.

This ten year old case places the issue in sharp focus. Over the past several years, defendant, State Farm Mutual Automobile Ins. Co., has been stymied in its efforts to obtain a final resolution of the subject claim and related matters. The death of plaintiff’s sole shareholder in 2008 has compounded the difficulty of moving the case forward. [*2]What, if anything, can a court do, when the sole owner of a PC dies, and no one has the present authority to pursue a pending claim?

As demonstrated below, the law allows two possible remedies. First, the defendant can seek dismissal under CPLR 1021, by showing that the representatives of the deceased doctor’s estate have failed to obtain de facto authority to pursue the PC’s claims within a reasonable time after the doctor’s death. Second, it can request an order retroactively denying plaintiff’s right to obtain statutory interest upon the claim (see Ins. L. 5106[a]), based upon proof of unreasonable delay (see 11 NYCRR §65-3.9[d]).

With regard to the first potential remedy, State Farm moves for an order dismissing plaintiff’s complaint pursuant to CPLR 1021, due to plaintiff’s “failure to make timely substitution for the plaintiff whose sole shareholder is deceased” (affirmation of Glen Egor, Esq. in support of defendant’s motion). Plaintiff, through its attorney, opposes the motion.

As the court file shows, this no-fault action was filed more than ten years ago, in January, 2003. Apart from the filing of an answer, the matter has not progressed. On November 7, 2008, plaintiff’s sole shareholder and owner (Robert Hard, M.D.) passed away. Nearly five years have elapsed since Dr. Hard’s death. Since then, this case and related matters have been in limbo. Despite the passage of many years, “an administrator has yet to be appointed to manage his estate” (affirmation of Hymen S. Ashkenazy, Esq., in opposition to defendant’s motion, ¶3).

In a series of previously issued motion decisions, judges in the civil parts of this Court have consistently denied motions by defendant, State Farm, seeking dismissal of plaintiff’s no-fault actions on various grounds, which have included arguments for dismissal made pursuant to CPLR 3404 (dismissal of abandoned cases), CPLR 3216 (want of prosecution), or CPLR 3126 (penalties for refusal to disclose). In at least two of those decisions, this Court concluded that defendant could seek to protect its rights by moving to dismiss under CPLR 1021 (see North Queens Medical, P.C. v State Farm Ins. Co., index nos. 2143/03 and 30310/02, orders dated January 25, 2011). Likewise, in a different case involving the plaintiff and Nationwide Insurance Co., another judge of the District Court concluded that “dismissal pursuant to CPLR 1021 is permissible” (see North Queens Medical, P.C. v Nationwide Ins. Co., index no. 10974/03, decision dated December 21, 2010 [Chaikin, J]). Defendant’s current motion accordingly seeks dismissal pursuant to the latter provision.

At the outset, the Court reiterates its opinion that CPLR 1021 can be applied to a case like this one. When the language of CPLR 1021 is read together with related provisions in article 10, it clearly provides that the “successors or representatives” of a party may move for “substitution” in cases involving a party’s death (see CPLR 1015), or upon “any transfer of interest” of a party’s rights (see CPLR 1018).

As a practical matter, in cases where a PC’s sole shareholder dies, the PC “is [*3]powerless to continue prosecuting its claims” until “someone with authority” is appointed to proceed with the litigation (see Eastern Star Acupuncture, PC v Allstate Ins. Co., 36 Misc 3d 41, 42 [App Term 2d Dept, 2012]). When such an appointment is made, it effectively constitutes a de facto substitution of an estate representative in the place of the deceased shareholder for the purpose of allowing pending cases to move toward conclusion. Consequently, this Court believes that the death of a PC’s sole shareholder may be deemed “an event requiring substitution” (CPLR 1021). While such a de facto substitution allows the action to continue in the name of the PC, it serves the same purpose as an order substituting an estate for a deceased party, or an order substituting a successor party upon a transfer of a party’s interest in a given claim.

It follows that if such a de facto substitution is not made within a reasonable time, “the action may be dismissed…” (CPLR 1021). To hold otherwise would unduly limit the Court’s ability to bring matters like this to final conclusion. Since the CPLR should be “liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding” (CPLR 103), the Court holds that dismissal is, indeed, an authorized remedy in cases where the representatives of a deceased doctor’s estate have failed to obtain de facto authority to pursue the PC’s claims within a reasonable time after the doctor’s death.

On the other hand, a decision to dismiss the matter on such grounds ordinarily requires a compelling showing of unreasonable and prejudicial delay. In cases involving a party’s death, the courts “have shown relative liberality” in applying the “reasonable time” provision of CPLR 1021, “presumably because of the normal delays that can arise in connection with the process of having a personal representative appointed” (see Vincent C. Alexander’s Practice Commentary to McKinney’s CPLR, at C1021:1). Nevertheless, “the time to effect proper substitution should not extend indefinitely” (id., quoting Silvagnoli v Consolidated Edison Employees Mutual Aid Society, 112 AD2d 819).

In arguing for dismissal under the latter line of cases, defendant contends that “[m]ore than a reasonable time has elapsed since the death of the plaintiff’s sole shareholder” and that “no motion for substitution has been made by any person interested in the estate of the deceased plaintiff” (affirmation of Glen Egor, Esq. in support of defendant’s motion). However, in its papers opposing dismissal under CPLR 1021, plaintiff’s attorney avers that proceedings in the Surrogate’s Court are currently ongoing, and that the Queens County Surrogate “is in the process of appointing a public administrator to oversee the estate of Dr. Hard”(affirmation of Hyman S. Ashkenazy, Esq., in opposition, ¶4).

In view of that ongoing process, and in the absence of more detailed information respecting the current status of those efforts, defendant’s request for dismissal pursuant to CPLR 1021 is DENIED, without prejudice to renewal upon further proof of unreasonable delay. While the delays at the Surrogate’s Court are regrettable, they are beyond this [*4]Court’s power to address. Moreover, based upon plaintiff’s counsel’s representation, it appears that some efforts are currently being undertaken to resolve the estate matter. Consequently, notwithstanding the five year delay since the date of Dr. Hard’s death, the Court would not be inclined to dismiss the matter at this time.

In any event, before a dismissal may be ordered under CPLR 1021, “persons interested in the decedent’s estate” must be afforded an opportunity to “show cause” why the action should not be dismissed (CPLR 1021). Defendant’s moving papers do not identify such persons, nor do they seek an order directing service of the motion upon them. For this reason as well, the motion to dismiss under CPLR 1021 is DENIED without prejudice.

Since the request for dismissal is being denied in deference to the Surrogate’s primary authority over the affairs of the Estate of Dr. Hard, the Court further concludes that all proceedings in this action should be stayed (CPLR 2201), as requested by plaintiff’s counsel, until such time as the Surrogate appoints an administrator of Dr. Hard’s estate (see e.g. North Queens Medical, P.C. v Allstate Ins. Co., index no. 07377/03, order dated December 17, 2010 [Dist Ct Nassau Co.]). In issuing such a stay, however, the Court has the authority to impose “such terms as may be just” (CPLR 2201).

Under the unusual circumstances presented, defendant persuasively argues that the Court should “stay the accrual of interest in this matter retroactively” (reply affirmation of Glen Egor, Esq.). In view of the ten year history of this matter, and in the absence of proof of diligent efforts by plaintiff’s counsel to move the matter forward, the Court believes it would be extremely unfair and prejudicial to defendant to allow plaintiff’s no-fault claim to accrue ten years’ worth of interest after the date the lawsuit was commenced. As the parties are well aware, overdue no-fault claims normally accrue statutory interest at a punitive rate of 2% per month (see East Acupuncture, PC v Allstate Ins. Co., 61 AD3d 202, 210 [2d Dept 2009]; Ins. L. 5106[a]).

As a general rule, a court is powerless to deny statutory interest to a party seeking breach of contract damages upon a claim at law. In contrast to actions “of an equitable nature” which are subject to “the court’s discretion” (CPLR 5001[a]), the same section states that interest “shall be recovered upon a sum awarded because of a breach of performance of a contract” (id.).

However, no-fault claims, while grounded in contract, are subject to special rules concerning interest upon overdue claims. Critically, the no-fault regulations include a provision that “interest shall accumulate unless the applicant unreasonably delays the…court proceeding” (see 11 NYCRR §65-3.9[d]). Medical providers pursuing assigned claims for no-fault benefits have been held subject to this proviso (East Acupuncture, PC v Allstate Ins. Co., supra). Therefore, notwithstanding the command of CPLR 5001(a), the Court is empowered to deny interest upon a no-fault claim in cases falling within the ambit of the regulation.

Lower court judges have “rarely ruled upon [the] issue” of what constitutes an [*5]“undue delay” justifying denial of no-fault interest (see Arzu v NYC Transit Authority, 35 Misc 3d 210 [Civ Ct Kings Co. 2012]). However, in the latter case, a plaintiff’s “egregious” five year delay in prosecuting a no-fault claim was found to justify a retroactive tolling of interest. As the Civil Court (Katherine A. Levine, J) explained, the applicable no-fault regulation “acts as an incentive for both insurers and claimants to act promptly” (id. at 213). Once an insurer issues a timely denial, “the incentive to act promptly switches to the applicant who … must then not unreasonably delay prosecution of the case in order to avoid the tolling of interest” (id.).

Plaintiff’s ten year delay in this case appears to be equally “egregious,” thereby warranting an order granting defendant’s request for a retroactive toll of no-fault interest in this matter.

Given plaintiff’s extreme ten year delay, granting a retroactive toll of no-fault interest is both necessary and appropriate. “[T]o do otherwise would reward … plaintiff with a windfall of punitive interest payments and would contravene the legislative goal of promptly resolving no fault claims” (Arzu v NYC Transit Authority, supra, quoting Devonshire Surgical Facility v American Transit Ins. Co., 2011 NY Slip Op 50793 [Civ Ct NY Co]).

Accordingly, as permitted by 11 NYCRR §65-3.9(d), the Court concludes, based upon plaintiff’s unreasonable delay in pursuing the matter between the date the action was commenced (January 2003) and the date of Dr. Hard’s death (November 2008), and the absence of proof of appropriate diligent and expeditious efforts to obtain an order from the Queens Surrogate which would have allowed the action to proceed after Dr. Hard’s death, any judgment in plaintiff’s favor in this matter shall carry post-commencement no-fault interest only from a date, going forward, when the requisite Surrogate’s approval is obtained, and may be subject to further tolling if there are additional unreasonable delays in the prosecution of the action.

So Ordered:

District Court Judge

Dated:September 13, 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 July 27, 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 on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and held that the sole remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted a sworn peer review report setting forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the services at issue. Plaintiff failed to rebut defendant’s prima facie showing. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and 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 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: August 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 (Pamela L. Fisher, J.), entered June 17, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

For the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. (39 Misc 3d 136[A], 2013 NY Slip Op 50595[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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