Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 16, 2013. The order denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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 plaintiff’s assignor had fraudulently procured the insurance policy by misrepresenting, among other things, whether he would be using the vehicle being insured for work, and on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule. By order entered April 16, 2013, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had established its defense of fraudulent procurement of the insurance policy. The April 16, 2013 order did not pass upon the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material (cf. New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the [*2]complaint due to plaintiff’s assignor’s fraudulent procurement of the insurance policy should have been denied.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit inasmuch as plaintiff failed to establish its prima facie case since it did not establish either that defendant had failed to deny the claim 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 a timely denial of claim that was 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]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is 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. By order entered March 19, 2013, insofar as appealed from, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action, granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (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 cause of action is 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 plaintiff’s owner, 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 this cause of action is 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]).

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the second through sixth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied.

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

Decided on November 19, 2015

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered January 18, 2013. 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, arguing that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the denial of claim form at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

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

Decided on November 19, 2015

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 (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant’s defense of lack of medical necessity.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered February 7, 2013, insofar as appealed from and as limited by plaintiff’s brief, the Civil Court denied plaintiff’s motion for summary judgment, granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through sixth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s seventh and eight causes of action to the extent of finding that the sole issue for trial with respect to these causes of action is defendant’s defense of lack of medical necessity.

Contrary to plaintiff’s contention, defendant established that the independent medical examination (IME) and examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the first through sixth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing the first through sixth causes of action.

Upon a review of the record, we find that there are triable issues of fact regarding the [*2]medical necessity of the services at issue in plaintiff’s seventh and eighth causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 25, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fifth, and seventh causes of action.

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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered March 25, 2013, insofar as appealed from, the Civil Court denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through fifth, and seventh causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of its motion for summary judgment, plaintiff established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). However, with respect to the sixth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (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]). Thus, plaintiff was not entitled to summary judgment as to this cause of action.

In support of the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through fifth, and seventh causes of action, defendant submitted an affidavit by its claims examiner which 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]) and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the first through fifth, and seventh causes of action on that ground, defendant was entitled to summary judgment dismissing these causes of action.

In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled EUOs.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted; 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (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 second cause of action is 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 plaintiff’s employee, 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 this cause of action is 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]).

Defendant conceded in its moving papers that, on December 13, 2010, it had received the claim form underlying the first cause of action. To the extent defendant asserts that it took no action because the claim form was illegible, upon our review of the document, we find that the name of plaintiff’s assignor and the claim number are legible. Moreover, defendant had, at a minimum, previously received the claim underlying the second cause of action, which involves the same assignor and same claim number. Consequently, the claim form’s alleged illegibility does not constitute a valid ground for defendant’s inaction. As the record establishes that defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim, plaintiff was entitled to summary judgment upon the first cause of action (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 12, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered April 12, 2013, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21, on the ground that defendant had failed to demonstrate that it possessed an objective basis for requesting plaintiff’s assignor to appear at an EUO.

In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff’s assignor in accordance with defendant’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also annexed an affidavit from an investigator employed within defendant’s special investigations unit, and stenographic transcripts, to show that the assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law. Accordingly, since appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.

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