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 (Nancy M. Bannon, J.), entered May 6, 2011. The order, insofar as appealed from, granted defendant’s motion pursuant to CPLR 3126 to dismiss the complaint.

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

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 granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover assigned first-party no-fault benefits as a fraudulently incorporated professional corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and established that it had sought disclosure related to that defense. Defendant further established that plaintiff had failed to comply with a so- ordered stipulation and two court orders wherein plaintiff had been directed to provide the disclosure. ” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012] and Giano [*2]v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its repeated refusal to fully comply with defendant’s discovery requests, even after agreeing to do so by so-ordered stipulation and being directed to do so by court orders, and the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]). We note that plaintiff’s motion to stay discovery was untimely. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 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 April 18, 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 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. The court found that defendant had demonstrated that there was a lack of coverage due to the exhaustion of the limits of the applicable insurance policy.

Defendant sufficiently established that the relevant policy is a Delaware insurance policy, which was issued to a Delaware resident for an automobile registered in Delaware. Furthermore, the NF-2 form, which was signed by plaintiff’s assignor and proffered by defendant as an exhibit, revealed that the accident had occurred in Delaware. In view of Delaware’s significant contacts with the contract (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), the application of Delaware law to the substantive issues is proper (see Matter of Allstate Ins. Co. [*2][Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]). Delaware law requires minimum compensation for, among other things, medical expenses in the amount of $15,000 for one person in any one accident (see 21 Del. C. § 2118 [a] [2] [b]; 21 Del. C. § 2902 [b] [2]; Wygant v Geico Gen., 27 A3d 553 [2011] [table; text at 2011 WL 3586488 Del Sup Ct 2011]). While a Delaware policy may provide for higher limits of compensation (see 18 Del. Admin. Code 603-6.2), the policy in question provided for a $15,000 coverage limit for each person for bodily injury. “We bind parties to the plain meaning of clear and unequivocal language in insurance contracts lest we create a new contract with rights, liabilities, and duties to which the parties did not assent” (Wygant v Geico Gen., 27 A3d 553 [table; text at 2011 WL 3586488, at *1).

As defendant has made a prima facie showing, through the affidavits of its claims and underwriting employees, and through the submission of documentary evidence, that the policy had a $15,000 medical expenses coverage limit and that it had been exhausted (see New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]), defendant established its prima facie entitlement to judgment as a matter of law. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion. The parties’ remaining contentions either lack merit or are not properly before this court because they are raised for the first time on appeal.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 8, 2010. The judgment, after a nonjury trial, 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, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. [*2]Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]). In the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit.

The remainder of plaintiff’s contentions similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 27, 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 22, 2011. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order 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.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying 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 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., Rios and Aliotta, JJ., concur.
Decision Date: June 25, 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 Kelly Sheares, J.), dated June 3, 2011. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order 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.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying 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 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., Rios and Aliotta, JJ., concur.
Decision Date: June 25, 2013

[*1]

Civil Court of the City of New York, New York County, June 24, 2013

APPEARANCES OF COUNSEL

Dodge & Monroy, P.C., Melville, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City, for plaintiff.

{**40 Misc 3d at 788} OPINION OF THE COURT

James E. d’Auguste, J.

Defendant Utica Mutual Insurance Company seeks summary judgment dismissing plaintiff New Century Medical Diagnostics, P.C.’s no-fault benefits action.

The parties’ submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims{**40 Misc 3d at 789} based upon New Century’s failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath [*2]represents a failure to comply with a condition precedent to coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) New Century has not denied its nonappearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State Insurance Department^[FN*] opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. (Ops Gen Counsel NY Ins Dept No. 09-06-10 [June 2009, Alexander Tisch, Esq.].) The Insurance Department, however, did not opine that an insurer’s attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer’s demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century’s claims.

Accordingly, Utica’s motion for summary judgment dismissing the complaint is granted.

Footnotes

Footnote *: The Insurance Department is now a part of the Department of Financial Services.

[*1]

District Court of Nassau County, First District, June 18, 2013

APPEARANCES OF COUNSEL

Robert P. Macchia & Associates for defendant. Israel, Israel & Purdy for plaintiffs.

{**40 Misc 3d at 978} OPINION OF THE COURT

Fred J. Hirsh, J.

Defendant moves to strike the notice of trial and certificate of readiness for trial on the grounds discovery is not complete.{**40 Misc 3d at 979}

Background

Joseph Perez, M.D. is the owner of several medical facilities. While these facilities are located in different locations, the address for each of the medical facilities for which Dr. Perez is listed as the officer, shareholder or director with the Department of Education is 1890 New York Avenue, Huntington, New York 11746.

After receiving numerous no-fault claims from Dr. Perez facilities, Allstate Insurance Company began to investigate the operation of these facilities.

At an examination under oath conducted by Allstate in 2005, Dr. Perez testified he [*2]used management companies to pick the locations for his medical facilities, to hire and handle payroll for his support staff and to handle billing. The management companies used by Dr. Perez to provide these services are located at 1890 New York Avenue, Huntington, New York.

Allstate asserts it has repeatedly requested copies of the management agreements between Dr. Perez medical facilities and the management company. Allstate asserts it is entitled to discovery of these documents in connection with a Mallela defense. (See State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005].)

Allstate asserts the medical facilities owned by Dr. Perez also engage in a systematic pattern of overbilling. Testimony taken at examinations under oath of patients who receive treatment at Dr. Perez medical facilities indicate Dr. Perez and other doctors employed at those facilities submit bills for providing a complex examination that should take close to an hour when the examination took between 15 and 30 minutes.

Allstate further asserts Dr. Perez bills no-fault for services provided by independent contractors.

Allstate claims there is a pattern of providing similar if not identical treatment to patients who are examined by Dr. Perez or other doctors at Perez owned facilities. Allstate claims patients examined by Dr. Perez or at Perez owned facilities are regularly referred for chiropractic treatment at facilities owned by David Tubins, D.C. Allstate claims this raises issues regarding illegal fee-splitting with Dr. Tubins.

Allstate claims these circumstances lead it to believe Dr. Perez medical facilities are subject to a Mallela defense. Allstate seeks to obtain discovery in this regard and to take a deposition of Dr. Perez in regard to the possible Mallela defense.{**40 Misc 3d at 980}

Huntington Medical Plaza, P.C. is a facility owned by Dr. Perez. Huntington Regional Chiropractic, P.C. is a facility owned by Dr. Tubins.

In addition to being the named officer, shareholder and director of Huntington Medical Plaza, P.C., Dr. Perez is the named shareholder, officer and director of Brentwood Medical Plaza, P.C., Brentwood Medical Care, P.C., Patchogue Medical Plaza P.C., Patchogue Medical Services, P.C., Hempstead Medical Plaza, P.C., Hempstead Medical Care, P.C. and Stony Brook Medical Care, P.C.

Allstate has served a notice for discovery and inspection requesting Huntington Medical Plaza, P.C. produce copies of its banking records and banking resolutions, tax returns, office and equipment leases, management agreements and other corporate records it would need to establish a Mallela defense. Huntington Medical Plaza, P.C. has objected to producing this material asserting the demands are overbroad, unduly burdensome and irrelevant.

Plaintiffs assert this is nothing more than a “fishing expedition” and the discovery is unrelated to the real issues in this case that involve the denial of claims on the grounds the fees are not in accordance with the fee schedule and the medical services were not medically necessary. Plaintiffs claim a similar request for similar discovery has been rejected by the Civil Court, Queens County.

Discussion

Because Mallela involves issues that are not ordinarily in issue in actions to recover first-party no-fault benefits, a party seeking Mallela discovery must establish a reasonable basis for requesting the material. (Midborough Acupuncture, P.C. v State Farm Ins. Co., [*3]21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].)

The use of a management company to manage the business of a medical provider is not in and of itself insufficient to establish a Mallela defense. The issue is what control does the management company have over the operation of the medical practice and to what extent is the management company realizing the financial benefits from the operation of the medical practice. The issues in determining whether a medical facility is subject to a Mallela defense are whether the fees being paid to the management for routine services excessive, is the management company renting office supplies, equipment and space to the{**40 Misc 3d at 981} medical provider for payments that are excessive, are the management company employees the sole signatories to the medical practice bank accounts, is the medical provider actually performing the medical services for which the professional corporation was formed, to what extent is the licensed professional involved in the decisions relating to the operation of the medical facility and is the licensed professional more like a salaried employee or the owner of the business. (See Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno Gerbino & Soriano, LLP, 26 Misc 3d 448 [Civ Ct, Richmond County 2009].) Stated more simply, is the licensed professional involved both medically and operationally in the operation of the business or has the medical professional simply provided a license that permits persons who lack a license to operate, control and benefit from the operation of a medical facility or practice.

While this court believes the proper procedure for an insurer who believes a provider is subject to a Mallela defense is to commence a declaratory judgment seeking a determination of the provider’s eligibility to receive no-fault benefits, Mallela may be asserted as an affirmative defense to an action for no-fault benefits. (New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52217[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009].)

CPLR 3101 (a) provides for full disclosure by a party to an action of “all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” CPLR 3101 (b) provides that privileged material is not subject to discovery.

Information is “material and relevant” for the purposes of CPLR 3101 (a) if the demanded matter, “will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968].) The demanded material must be produced if it can be used as evidence in chief, for rebuttal or for cross-examination. (Id.; Wind v Eli Lilly & Co., 164 AD2d 885 [2d Dept 1990].)

Documents that are not admissible into evidence may be obtained through discovery if the production of those documents may lead to the discovery of admissible evidence. (Matter of Southampton Taxpayers Against Reassessment v Assessor of Vil. of Southampton, 176 AD2d 795 [2d Dept 1991]; Fell v Presbyterian Hosp. in City of N.Y. at Columbia-Presbyt. Med. Ctr., 98 AD2d 624 [1st Dept 1983].){**40 Misc 3d at 982}

The party seeking production of the material has the burden of establishing that the production of the demanded material will lead to the discovery of relevant evidence while the party resisting the production of the material has the burden of establishing the material is irrelevant, privileged or confidential. (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420 [2d Dept 1989]; Carp v Marcus, 116 AD2d 854 [3d Dept 1986]; Herbst v Bruhn, 106 AD2d 546 [2d Dept 1984].) [*4]

Most if not all of the documents and material demanded in regard to a Mallela defense, such as banking resolutions and statements, equipment and office leases, tax returns, management agreements, are documents that are in the exclusive possession and control of the medical provider. Most if not all of this material would be irrelevant to the action and not subject to discovery in an action to obtain payment of first-party no-fault benefits if the defendant insurer was not asserting a Mallela defense.

If the management company is actually operating Huntington Medical Plaza, P.C. and Dr. Perez is providing his license to Huntington Medical Plaza, P.C., Huntington Medical Plaza, P.C. would be subject to a Mallela defense. It would not be eligible to receive payment of no-fault benefits for this claim. However, Huntington Medical Plaza, P.C. should not have to produce and make available to the defendant corporate and financial documents that would otherwise not be subject to discovery simply because it filed no-fault claims or simply because Allstate has alleged a Mallela defense and has a suspicion Huntington might be running afoul of licensing laws.

The issue of whether the subject material is subject to discovery and whether Huntington Medical Plaza, P.C. is subject to a Mallela defense will recur until such time as a court has determined whether there is a basis for asserting such a defense.

Where the court cannot determine from the record whether the disputed documents are subject to discovery, the court should direct that the documents be produced for an in camera inspection. (Ross v Northern Westchester Hosp. Assn., 43 AD3d 1135 [2d Dept 2007]; Matter of Chebere v Johnson, 3 AD3d 365 [1st Dept 2004]; Masterwear Corp. v Bernard, 298 AD2d 249 [1st Dept 2002]; Nationwide Ins. Co. v Crisano, 286 AD2d 670 [2d Dept 2001].) From a reading of the papers, the court cannot determine whether the material demanded is subject to discovery.

Therefore, defendant’s motion is granted to the extent that Huntington Medical Plaza, P.C. shall produce for in camera{**40 Misc 3d at 983} inspection copies of all banking resolutions, signature cards and account agreements for all bank accounts maintained by Huntington for the years 2011, 2012 and 2013, copies of all consulting/management agreements for the years 2011, 2012 and 2013, copies of all billing management agreements for the years 2011, 2012 and 2013, copies of all corporate tax returns for the years 2011 and 2012, and copies of all leases for premises occupied and equipment rented for the years 2011, 2012 and 2013.

Such documents shall be produced to the chambers of the Honorable Fred J. Hirsh, District Court, Nassau County, 99 Main Street, Hempstead, New York 11550 for in camera inspection within 90 days of the date of this order. All proceedings in this action are stayed pending the production of the documents and inspection by the court.

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 (Nancy M. Bannon, J.), entered May 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion papers established that defendant had timely denied the claim 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]) based on a lack of medical necessity. In addition, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been 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 & [*2]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]). In light of the foregoing, we reach no other issue.

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., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 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 (Leslie J. Purificacion, J.), entered June 9, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant submitted an affidavit by an employee of the entity which had scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit established that the IME 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 [*2][App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavits submitted by defendant demonstrated that its denial of claim forms, which denied the claims in question based upon the failure of plaintiff’s assignor to appear for 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). Defendant also submitted an affirmation by its examining physician and affidavits by its examining chiropractor, psychologist and acupuncturist, respectively, each of which stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as, in opposition to the motion, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 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 April 11, 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied plaintiff’s claims based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s sole argument on appeal with respect to defendant’s cross motion, defendant properly demonstrated that it had mailed the EUO scheduling letters and denials 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]). As plaintiff raises no other argument with respect to the granting of [*2]defendant’s cross motion, the order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 2013