[*1]

Civil Court of the City of New York, Queens County, February 25, 2013

APPEARANCES OF COUNSEL

Israel, Israel & Purdy, LLP, Great Neck (Justin Skaferowsky of counsel), for plaintiff. Peter C. Merani, P.C., New York City (William Larkin of counsel), for defendant.

{**40 Misc 3d at 350} OPINION OF THE COURT

Carmen R. Velasquez, J.

This is an action by the plaintiff to recover statutory interest and attorney fees on no-fault insurance claims that were overdue when they were paid by the defendant. The plaintiff has submitted proof that, on the dates indicated, the following four claims were mailed to the defendant:

1. March 10, 2009—$71.49 for services rendered to Ana Oneal [*2]

2. June 11, 2009—$1,392.52 for services rendered to Salvadore Rivera

3. June 25, 2009—$107.64 for services rendered to Salvadore Rivera

4. June 25, 2009—$186.80 for services rendered to Salvadore Rivera.

The claims were each paid as follows:

claim 1 was paid by draft dated June 1, 2009 for $71.49

claim 2 was paid by draft dated July 29, 2009 for $1,392.52

claim 3 was paid by draft dated August 16, 2009 for $107.64

claim 4 was paid by draft dated August 10, 2009 for $103.95.

“Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, insurers are required either to pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date the applicant supplies proof of claim” (New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006], citing Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997], rearg denied 90 NY2d 937 [1997]; also see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]). Based on the proof submitted by the plaintiff on this motion, the claims in this action were paid more than 30 days after they were mailed and received by the defendant. Therefore, the payments of the no-fault benefits made by the defendant were overdue (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011], citing St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

“An insurer’s failure to pay or deny a claim within 30 days carries substantial consequences. By statute, overdue payments earn monthly interest at a rate of two percent and entitle a claimant to reasonable{**40 Misc 3d at 351} attorneys’ fees incurred in securing payment of a valid claim (see Insurance Law § 5106 [a])” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d at 278).

Insurance Law § 5106 (a) provides as follows:

“Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month. If a valid claim or portion was overdue, the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to limitations promulgated by the superintendent in regulations.”

11 NYCRR 65-3.9 (a), applicable to interest on overdue payments, provides as follows:

“All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month. When payment is made on an overdue claim, any interest calculated to be due in an amount exceeding $5 shall be paid to the applicant or the applicant’s assignee without demand therefor.”

11 NYCRR 65-3.10 (a), applicable to attorney fees, provides as follows:

“An applicant or an assignee shall be entitled to recover their attorney’s fees, for services necessarily performed in connection with securing payment, if a valid claim or portion thereof was denied or overdue. If such a claim was initially denied and subsequently paid by the insurer, the attorney’s fee shall be $80. If such a claim was overdue but not denied, the attorney’s fee shall be equal to 20 percent of the amount of the first-party benefits and any additional first-party benefits plus interest payable pursuant to section 65-3.9 of this Subpart, subject to a{**40 Misc 3d at 352} maximum fee of $60.”

The overdue interest on plaintiff’s claims for $71.49, $107.64, $103.95 was less than five dollars and was not paid by the defendant. The overdue interest on the claim for $1,392.52, which exceeded five dollars, was also not paid. Demands for payment of the overdue interest and attorney fees were mailed to the defendant shortly after the claim payments were received, as indicated in plaintiff’s opposing papers. This action to recover the overdue interest and attorney fees was then commenced by the filing of the summons and complaint on November 5, 2009 and personal service upon the defendant on November 10, 2009.^[FN*]

Defendant’s claim that overdue interest is to be calculated on a 30-day-month basis, and not on a daily basis, has no merit. The Court of Appeals in Presbyterian Hosp. v Maryland Cas. Co. (90 NY2d at 278) stated that

“[p]ursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). Failure to pay benefits within the 30-day requirement renders benefits ‘overdue,’ and all overdue payments bear interest at a rate of 2% per month (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]). Additionally, a claimant is entitled to recover attorney’s fees where a ‘valid claim or portion’ was denied or overdue (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]).”

This language makes it clear that overdue interest applies to “all overdue payments.” Moreover, the instruction in 11 NYCRR 65-3.9 (a) that interest is to be “calculated on a pro-rata basis using a 30-day month” explains the manner of determining the daily rate of interest based on a monthly interest rate of two percent per month, rather than restricting collection to a monthly amount. The statute, [*3]regulations and case law confirm that overdue interest is a payment to be imposed on a daily basis, with attorney fees, when a claim for no-fault benefits is{**40 Misc 3d at 353} not paid within 30 days of submission of the claim (see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d at 494; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]; Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8 [2011]).

On this motion and cross motion, as well as other motions that are pending, the issue is whether the plaintiff is entitled to recover overdue interest when it does not exceed the sum of five dollars indicated in 11 NYCRR 65-3.9 (a). The defendant contends that the regulation limits overdue interest to an amount exceeding five dollars that is to be paid, without demand, upon payment of the overdue claim. The plaintiff claims that the regulation does not preclude the applicant from demanding overdue interest below five dollars. There are prior orders in Civil Court, Queens County, that have decided this issue in cases involving different parties. These orders, some of which are signed by this court, have held that collection of overdue interest of less than five dollars is not precluded by regulation 11 NYCRR 65-3.9 (a).

According to the Governor’s Memorandum approving the no-fault system, its primary aims “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). The Superintendent of Insurance was given the responsibility for administering the Insurance Law “with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]). As a result, the Court of Appeals has long held that the Superintendent’s “interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009], citing Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]). However, “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” (Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 506 [2005], citing 427 W. 51st St. Owners Corp. v Div. of Hous.{**40 Misc 3d at 354} & Community Renewal, 3 NY3d 337, 342 [2004]; also see Kurcsics v Merchants Mut. Ins. Co. 49 NY2d 451, 459 [1980]; East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 209 [2009]). Legislative intent is the great and controlling principle in statutory construction and the proper judicial function is to discern and apply the will of the legislature (Mowczan v Bacon, 92 NY2d 281, 285 [1998]; Matter of Scotto v Dinkins, 85 NY2d 209, 214 [1995]; Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

“The interest which accrues on overdue no-fault benefits at a rate of two percent per month is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply” (East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d at 210 [citations omitted]). The construction of 11 NYCRR 65-3.9 (a), that is advocated by the defendant, would preclude overdue interest of less than five dollars. This would conflict with the statutory language of Insurance Law § 5106 (a) which imposes interest on “[a]ll overdue payments.” The change would also tend to increase the delay in compensating low cost medical benefits that accumulate minimal overdue interest. Such a construction of the statute [*4]conflicts with its primary aims and violates the legislative intent.

The legislature was entitled to enact a limitation on the overdue interest in Insurance Law § 5601 (a), as it did by expressly eliminating interest of “less then two dollars” in Insurance Law § 3224-a (c) (1). However, the legislature did not exempt the overdue interest of less than five dollars, that is sought by the defendant. The Superintendent of Insurance also did not preclude the collection of overdue interest that is less than five dollars, if it is demanded. This court will not now prevent the collection of such interest.

Accordingly, the plaintiff’s motion for summary judgment is granted and the plaintiff is awarded judgment, pursuant to Insurance Law § 5106 (a), for the overdue interest and attorney fees alleged in the complaint. The defendant’s cross motion to dismiss the action is denied.

Footnotes

Footnote *: The defendant’s answer in this action was interposed by the office of Robert P. Tusa. However, Peter C. Merani, whose office submitted the cross motion and reply affidavit on this motion, is listed on the court records as the attorney for the defendant in this action. Therefore, it is appropriate for the court to consider these papers, despite plaintiff’s claim that Peter C. Merani is not the defendant’s attorney of record.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered December 10, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claim based on a chiropractor’s sworn peer review report, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the underlying MRI tests lacked medical necessity. In opposition, plaintiff failed to raise a triable issue. The unsworn letter report submitted by plaintiff from the assignor’s treating chiropractor was without probative value (see CPLR 2106; Pierson v Edwards, 77 AD3d 642 [2010]), and, even if considered, the conclusory findings set forth therein were insufficient to withstand summary judgment (see 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: February 21, 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 (Peter Paul Sweeney, J.), entered November 1, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 2, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

We find that, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its [*2]motion failed to establish that the claim at issue 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 (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]). However, plaintiff correctly argues that defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Defendant’s cross motion papers failed to establish that its time to pay or deny plaintiff’s claim had been tolled, as defendant did not demonstrate, as a matter of law, that the letters scheduling the independent medical examination of plaintiff’s assignor 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]).

Accordingly, the judgment is reversed, so much of the order entered November 2, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 20, 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 (Katherine A. Levine, J.), entered May 16, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon denying plaintiff’s motion for summary judgment, found that plaintiff had established its prima facie case.

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. The Civil Court denied both the motion and the cross motion, but found that plaintiff had established its prima facie case; that defendant had demonstrated that it had timely and properly denied plaintiff’s claim; and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and as found that plaintiff had [*2]established its prima facie case.

In support of its cross motion, defendant submitted, among other things, affidavits and peer review reports by its chiropractors which set forth a factual basis and medical rationale for the chiropractors’ determinations that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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]). 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 Solomon, JJ., concur.
Decision Date: February 19, 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 13, 2011. The order, insofar as appealed from as limited by the brief, in effect, 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. The Civil Court, in effect, denied the motions but found that plaintiff had established its prima facie entitlement to summary judgment, that defendant had “established timely and proper mailing of its denial(s),” and that “[t]he sole issue for trial is the defense of lack of medical necessity.” Defendant appeals, as limited by its brief, from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmed medical report by the doctor who had performed the independent medical examination (IME) on defendant’s behalf, which set forth a factual basis and medical rationale for the doctor’s determination that there was [*2]a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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]).

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 Solomon, JJ., concur.
Decision Date: February 19, 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 (Devin P. Cohen, J.), entered April 4, 2011. The order, insofar as appealed from, granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered May 5, 2011 awarding plaintiff the principal sum of $1,368 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.

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 the bills at issue had been timely denied based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the first cause of action [*2]and granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action. The court implicitly found that defendant had demonstrated that it had timely and properly mailed initial and follow-up IME scheduling letters and that plaintiff’s assignor had not appeared for the scheduled IMEs. However, as to the second and third causes of action, the court found that defendant’s denials were untimely because they had been mailed more than 45 days after plaintiff’s assignor had violated a policy condition by failing to appear for the second scheduled IME. On appeal, defendant argues that the branches of its motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Defendant demonstrated that it had timely mailed both initial and follow-up IME requests and initial and follow-up requests for written verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue. While plaintiff’s assignor failed to appear for IMEs on January 16, 2009 and February 2, 2009, defendant did not receive the requested written verification until February 19, 2009. As defendant denied the claims within 30 days of its receipt of the requested written verification (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs, regardless of the fact that the last nonappearance had occurred more than 45 days prior to the issuance of the denial (see Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], 2012 NY Slip Op 51725[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising the defense, and, as plaintiff failed to raise a triable issue of fact, the branches of defendant’s motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Accordingly, the judgment is reversed, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Terrence C. O’Connor, J.), entered May 27, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

The affidavits submitted by defendant established that defendant had 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]) its initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). The mere denial by plaintiff’s [*2]office manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Triangle R, Inc. v Clarendon Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52159[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the complaint should have been granted, as defendant’s time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

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

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Dawn Jiminez Salta, J.), entered March 30, 2011. 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; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s argument on appeal, defendant’s denial of claim forms were sufficient to preserve defendant’s fee schedule defense (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, there are triable issues of fact as to whether defendant has fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Consequently, on this record, summary judgment in favor of defendant is not warranted (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 31, 2011. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant’s cross motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted; as so modified, the order is affirmed, with $25 costs to plaintiff, 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 so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment upon the complaint’s 10 causes of action, and defendant cross-appeals from so much of the order as denied its cross motion for, among other things, summary judgment dismissing the complaint.

In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its [*2]president which established that the claim forms had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

As to plaintiff’s first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs), were untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]). Consequently, as to these claims, defendant is precluded from asserting its defense that there had been a failure to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

As to plaintiff’s fourth and tenth causes of action, defendant’s mere denial of receipt of those claims was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). Thus, defendant failed to raise a triable issue of fact as to these two claims.

Defendant’s remaining contentions lack merit.

Accordingly, the order is modified by providing that 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 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Cheree A. Buggs, J.), entered February 17, 2011, deemed from a judgment of the same court entered March 1, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint, awarded plaintiff the principal sum of $501.50.

ORDERED that the judgment is reversed, with $30 costs, so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary
judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion 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 [*2]complaint on the ground that all three bills at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs) on September 4, 2009 and September 23, 2009. The Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s first two bills, implicitly finding that defendant had proved that the EUOs had been properly scheduled and that plaintiff had failed to appear. However, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon the last bill, for $501.50, on the ground that defendant had failed to issue two scheduling letters addressing the date of service for that bill.

The claim for $501.50 was denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for the two properly scheduled EUOs that had been previously requested by defendant with regard to the same accident and the same assignor. Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, this claim was timely and properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Contrary to the finding of the Civil Court, it was not necessary for defendant to issue new scheduling letters addressing this particular bill (id.).

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013