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 October 18, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find for all purposes in the action that plaintiff had established its prima facie case. ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint 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 so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find, for all purposes in the action, that plaintiff had established its prima facie case. On appeal, plaintiff contends that it demonstrated the existence of a triable issue of fact as to the medical necessity of the services rendered and that the court should have made a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

In opposition to defendant’s motion for summary judgment dismissing the complaint, [*2]plaintiff submitted an affirmation by a medical doctor which was sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). However, contrary to plaintiff’s further contention, plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary 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 from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 28, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 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 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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v [*2]Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted peer review reports, as well as affirmations executed by the physicians who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. Defendant’s prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the affirmations executed by the peer review physicians contained electronic stamped facsimiles of the peer reviewers’ signatures and, as a result, defendant failed to provide proof in admissible form to establish its defense of lack of medical necessity. However, the record indicates that the signatures were placed on the affirmations by the doctors who had performed the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

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 (Reginald A. Boddie, J.), entered January 6, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 6, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,782.80.

ORDERED that the judgment is reversed, with $30 costs, so much of the January 6, 2011 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered January 6, 2011 which granted plaintiff’s motion for summary judgment and denied 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]).

The affidavit by defendant’s claims examiner submitted in opposition to plaintiff’s motion [*2]and in support of defendant’s cross motion was sufficient to establish that defendant’s claim denial forms, which denied plaintiff’s claims on the ground that the medical equipment provided was not medically necessary, 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]). In addition, the affirmed peer review reports by defendant’s doctors that were submitted, were sufficient to establish a lack of medical necessity for the medical equipment in question, as they provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the equipment (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]). In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor which was sufficient to raise a triable issue of fact as to the equipment’s medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. 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 judgment is reversed, so much of the order entered January 6, 2011 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 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 (Jacqueline D. Williams, J.), entered May 4, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 4, 2010 order denying plaintiff’s motion for summary judgment and granting the branch of defendant’s cross motion seeking, in effect, summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings.

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 the branch of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is [*2]deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, its motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

With respect to defendant’s cross motion, defendant established that it had timely denied (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 claims at issue in this action, with the exception of a bill in the sum of $880.44 for services rendered September 7, 2005. As the affidavit by defendant’s no-fault litigation supervisor which defendant submitted is silent with respect to this claim, defendant did not establish that the claim had been timely denied.

With respect to the claims which were denied based upon an independent medical examination (IME), the sworn IME report, which was annexed to defendant’s cross motion as an exhibit, established a lack of medical necessity for the services, and plaintiff failed to rebut defendant’s prima facie showing. Consequently, defendant was entitled to the dismissal of those claims (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]).

With respect to the claims seeking the sums of $1,109.05, $3,227.26 and $1,153, the affidavit by defendant’s no-fault litigation supervisor established that the initial and follow-up verification requests for additional verification had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and that plaintiff had failed to provide all of the requested additional verification. Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and, thus, so much of the complaint as sought to recover upon these claims is premature (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]).

Defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon a claim for $880.44 for services rendered October 10, 2005 because “defendant failed to conclusively establish its stated defense[] that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009])” (Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51623[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2012]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Accordingly, the judgment is reversed, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services [*3]
rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 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.), dated June 22, 2010. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January 11, 2007 through January 16, 2007.

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, as limited by its brief, from so much of an order of the Civil Court dated June 22, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January [*2]11, 2007 through January 16, 2007.

Insofar as is relevant to this appeal, the affidavit submitted by defendant was sufficient to establish the timely mailing of the denial of claim forms (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]), which denied plaintiff’s claims on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, defendant established its prima facie entitlement to summary judgment (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]). Defendant’s showing that the services rendered to plaintiff’s assignor were not medically necessary was unrebutted by plaintiff (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]).

Plaintiff’s remaining contentions lack merit (see Quality Health Prods. v Geico Gen. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50415[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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 order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 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 Jimenez Salta, J.), entered March 10, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated, and those branches of defendant’s cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s appeal from so much of an order of the Civil Court entered March 10, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]). [*2]

In support of its cross motion, defendant submitted affirmed independent medical examination reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided on May 2, 2005 through May 31, 2005, June 2, 2005 through June 30, 2005, June 14, 2005, July 5, 2005 through July 19, 2005, August 1, 2005 through August 15, 2005, and September 20, 2005. Consequently, defendant established its prima facie entitlement to summary judgment on those claims (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]). Since plaintiff failed to rebut this showing (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]), the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims were properly granted.

However, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005 should have been denied. In support of its cross motion, defendant failed to proffer sufficient evidence to establish as a matter of law that these claims had been improperly billed or were in excess of the amount permitted by the fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Additionally, a portion of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for date of service April 28, 2005 should have been denied. Although defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for six of the services provided on this date, which conclusion plaintiff failed to rebut, one of the services, which had been was billed at a rate of $182.18, and had been partially paid by defendant in the amount of $154.30, had been partially denied since it had allegedly exceeded the maximum allowance under a fee schedule. However, defendant failed to proffer sufficient evidence to establish as a matter of law that the remaining balance of this claim, in the amount of $27.88, was, in fact, in excess of the amount permitted by the applicable fee schedule (see Rogy Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U]).

Accordingly, the judgment is reversed, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated and those branches of defendant’s cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. [*3]
Decision Date: February 11, 2013

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 23, 2010. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 and found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims in question based on a lack of medical necessity. The Civil Court denied both motions, and held that plaintiff had [*2]“established its prima facie entitlement to summary judgment, pursuant to CPLR 3212 (g)” and that defendant had “timely and properly denied said bills.” The court further stated that the sole issue to be determined at trial was the medical necessity of the services that had been rendered to plaintiff’s assignor. Plaintiff appeals from so much of the order as denied the branch of plaintiff’s motion seeking summary judgment on the complaint insofar as it sought to recover upon plaintiff’s claim for $879.73, and so much of the order as found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

To make a prima facie showing of entitlement to summary judgment, a no-fault provider must submit proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant had either failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]).

By invoking CPLR 3212 (g) and by limiting the trial in this case to the issue of medical necessity, the court implicitly found that (1) the fact and the amount of the loss sustained, and (2) the submission of the claim form to defendant, were “established for all purposes in the action” because they were “not in dispute” or were “incontrovertible” (CPLR 3212 [g]).

While the Civil Court also found, as incontrovertible, that defendant had timely denied plaintiff’s claim for $879.73, plaintiff correctly notes on appeal that, in defendant’s papers, defendant failed to even allege that it had mailed the denial of that claim. Plaintiff argues that, given the Civil Court’s CPLR 3212 (g) finding that, with respect to the claim for $879.73, plaintiff had established its prima facie entitlement to judgment as a matter of law, coupled with defendant’s failure to establish in its motion papers a timely denial of the claim, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 should have been granted.

In opposition, defendant argues, among other things, that the Civil Court’s finding that plaintiff had established its prima facie case was incorrect because plaintiff had not proven the fact and the amount of the loss sustained. Plaintiff responds by arguing that this finding is not reviewable because defendant did not cross-appeal.

Under the circumstances presented, we need not reach the question of whether defendant was required to cross-appeal in order to obtain review of the CPLR 3212 (g) finding which established, for all purposes in the action, the fact and the amount of the loss sustained since, contrary to defendant’s argument on appeal, plaintiff did establish the fact and the amount of the loss sustained by demonstrating that its claim form is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein, and defendant did not rebut that showing. Thus, whether or not the CPLR 3212 (g) finding in question can be reviewed on this appeal, plaintiff is entitled to summary judgment on so much of the complaint as sought to recover upon its claim for $879.73.

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon [*3]plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 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 (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT). Subsequent to the entry of the November 18, 2010 order, the Civil Court dismissed the complaint. The dismissal of the [*2]complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

[*1]

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

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Abrams, Cohen & Associates, New York City (Barry Cohen of counsel), for respondent.

{**39 Misc 3d at 10} OPINION OF THE COURT

Memorandum.

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 to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT).

Plaintiff was required, but failed, to challenge the propriety of defendant’s discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff{**39 Misc 3d at 11} is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d{**39 Misc 3d at 12} 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Pursuant to CPLR 3124, if a party fails to respond to or comply with any request, notice, interrogatory, demand or order under article 31 of the CPLR, the party seeking disclosure may move to compel compliance (see also CPLR 3126). There is no requirement upon the movant other than to show that no response had been received. Thus, in the case at bar, defendant was not required to demonstrate that its discovery demands were not palpably improper. Rather, in order to successfully oppose defendant’s cross motion to compel, plaintiff would have had to show that defendant’s defense of billing fraud was precluded because it was not asserted in a timely NF-10 denial of claim form, which plaintiff did not do.

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). In addition, defendant is entitled to an EBT of Vladimir Grinberg (see CPLR 3101 [a]; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [2008]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment (see CPLR 3212 [f]) and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an EBT.

Accordingly, the order is affirmed.

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

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 (Ingrid Joseph, J.), entered February 23, 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 modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Plaintiff’s assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), and the defense of a lack of medical necessity for the rendered services can be precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey (see Matter of Allstate Ins. Co. [Stolarz – New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]).

Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 27 Misc 3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff’s motion for summary judgment should have been denied.

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur. [*3]
Decision Date: February 01, 2013