Decided on January 13, 2016

Defendant appeals of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 5, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 5, 2013, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment. Although defendant asserted that the underlying no-fault claim is precluded by a provision of the subject insurance policy limiting coverage, upon the death of the insured, to the “legal representative of the deceased,” defendant failed to tender evidentiary proof in admissible form establishing that the policy contained such a provision (see Marvul v Knecht, 216 AD2d 370, 371 [1995], lv denied 86 NY2d 710 [1995]).

In view of our disposition, we have no occasion to address whether such policy provision would, as a matter of law, preclude the underlying no-fault claim (see Vehicle and Traffic Law § 388[1], [4]; Lumbermen’s Mut. Cas. Co. v Brown, 20 NY2d 542 [1967]), an issue not fully briefed by the parties.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2014, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered July 8, 2014, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms on January 10, 2011 (see 11 NYCRR 65-1.1; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U][App Term, 1st Dept 2015]), and such request complied with the applicable procedures and time-frames set forth in the no-fault regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]; cf. American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [2015]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or [*2]otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin, 82 AD3d at 560). Accordingly, when the assignor failed to appear for the requested acupuncture IMEs, defendant had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied certain of the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without 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. Insofar as is relevant to this appeal, by order entered April 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]). Consequently, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment upon the first and third through seventh causes of action. We note that even if plaintiff had made a prima facie showing of its entitlement to summary judgment upon the seventh cause of action, it would not be entitled to summary judgment thereon, as the conflicting medical expert opinions proffered by the parties demonstrated the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests [*2]and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first and third through sixth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from an employee of National Billing & Collections, Inc., which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 14, 2014. 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 to recover assigned first-party no-fault benefits, plaintiff seeks to recover for medical supplies it provided to its assignor, who had sustained injuries in a motor vehicle accident that had occurred on March 20, 2012. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, Bronx County, against plaintiff and various other medical providers, as well as the allegedly injured assignor. On June 7, 2013, the Supreme Court granted defendant’s motion, “pursuant to CPLR 3215 and CPLR 3212 (b), seeking a default judgment or summary judgment” and found that the medical providers named therein, including plaintiff herein, as well as plaintiff’s assignor, were not entitled to recover no-fault benefits arising out of the motor vehicle accident that had occurred on March 20, 2012, and judgment was entered therein on August 13, 2013. In June 2013, plaintiff moved in the instant case for, among other things, summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by virtue of the declaratory judgment. By order entered February 14, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the instant action is barred under the doctrine of res judicata based upon the declaratory judgment (see Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the Supreme Court (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306—307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Moreover, the declaratory judgment is a conclusive final determination notwithstanding that it may have been entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690 [2006]; Matter of [*2]Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the order is affirmed.

Solomon, J.P., Weston and Elliot, JJ., concur.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated April 10, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant denied the claim at issue based upon the assignor’s alleged failure to appear at duly scheduled examinations under oath (EUOs). Defendant moved for summary judgment dismissing the complaint on the ground that, by failing to appear at the EUOs, plaintiff’s assignor had failed to comply with a condition precedent to coverage. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the District Court as denied defendant’s motion.

On this record, we find that there is an issue of fact as to whether plaintiff’s assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An assignor’s appearance at a scheduled EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date (see e.g. Five Boro Psychological Services, P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [a mutual rescheduling, which occurs prior to the date of a scheduled EUO, does not constitute a failure to appear]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment (see Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]However, the record does not reveal the surrounding circumstances, for example, when exactly plaintiff requested the adjournment or when or how defendant responded. Without such details, we cannot determine the reasonableness and/or timeliness of each party’s conduct. Therefore, we cannot determine if plaintiff’s assignor should be deemed to have failed to appear on January 28, 2011 and, thus, whether there was a failure to comply with a condition precedent to coverage.

Accordingly, the order, insofar as appealed from, is affirmed.

Tolbert, J.P., Marano and Garguilo, JJ., concur.

Decided on December 18, 2015

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 16, 2013, which granted defendant’s motion dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered July 16, 2013, 2013, affirmed with $10 costs.

We sustain the grant of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely and properly denied plaintiff’s no-fault claims on the ground that the fees charged by plaintiff for the acupuncture services rendered to its assignor exceeded the amount permitted by the applicable worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition, plaintiff failed to raise a triable issue. Contrary to plaintiff’s present argument, the affidavits of the employees of defendant’s mailing center and the entity which administers its no-fault claims, sufficiently detailed their respective office procedures, including the placement of the NF-10/Explanation of Benefits (EOB) and checks made out to plaintiff in partial payment of no-fault benefits, in a clear window envelope so that the mailing and return address on the front of the first page of the document were visible. Plaintiff, which conceded receipt of the payment checks, did not dispute that the NF-10 forms were contained in the same envelopes. Accordingly, defendant established its entitlement to summary judgment dismissing the claims – which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Plaintiff appeals from so much of an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered December 18, 2014, as granted defendant partial summary judgment dismissing plaintiff’s no-fault claims for services rendered April 9, 2009 through May 27, 2009, and June 25, 2009 through September 15, 2009.

Per Curiam.

Order (David B. Cohen, J.), entered December 18, 2014, insofar as appealed from, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 99202; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims billed under CPT codes 97810, 97811, 97813 and 97814 for services rendered April 9, 2009 through May 27, 2009 and June 25, 2009 through September 15, 2009, on the ground that the amounts charged were in excess of the fees set forth in the applicable worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims.

However, triable issues remain as to whether defendant properly denied plaintiff’s claim for $61.43, billed under CPT code 99202 (initial evaluation), thus precluding summary judgment dismissing this claim (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U][App Term, 2d, 11th & 13th Jud Dists 2011]; see also VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept 2015]).

Decision Date: December 18, 2015

Plaintiff appeals from an order the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered February 3, 2015, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered February 3, 2015, affirmed, with $10 costs.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and her attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U][App Term, 1st Dept 2015]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and defendant’s third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a schedule IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home and Auto Ins. Co. 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U][App Term, 1st Dept 2015]).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the [*2]requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

Plaintiff’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.