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 May 18, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment as to its claims for services rendered from June 28, 2006 to September 26, 2006 and billed under procedure code 97810, and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those claims. The appeal is deemed to be from so much of a judgment of the same court entered September 21, 2010 as dismissed so much of the complaint as sought to recover for those claims (see CPLR 5501 [c]).

ORDERED that the judgment, 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. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment as to its claims for services rendered from June 28, 2006 to September 26, 2006 and billed under procedure code 97810, and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those claims. The appeal is deemed to be from so much of a judgment of the same court entered September 21, 2010 as dismissed the [*2]complaint insofar as it sought to recover for those claims (see CPLR 5501 [c]).

Contrary to plaintiff’s arguments on appeal, defendant demonstrated that it had fully paid plaintiff for the acupuncture services at issue in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the judgment, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2012

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 (Margaret A. Pui Yee Chan, J.), entered January 12, 2011. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order of the Civil Court as denied their motion for summary judgment.

Upon a review of the record, we find that the affidavit in support of plaintiffs’ motion failed to establish that the bills 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. Thus, plaintiffs failed to demonstrate their prima facie entitlement to summary judgment (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 [*2]1168 [2010]).

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2012

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 (Sylvia G. Ash, J.), dated April 25, 2007. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, 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 which granted plaintiff’s motion for summary judgment. In opposition to plaintiff’s motion, defendant submitted an affidavit by its claims division employee which sufficiently 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 Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The claims were denied on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. An affidavit by another of defendant’s claims division employees established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which [*2]plaintiff was entitled to receive for the services at issue (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 reversed and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), entered January 4, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), entered January 4, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s claim for assigned first-party no-fault benefits is warranted on the full record now before us, which shows that the defendant insurer timely and properly mailed its initial and follow-up verification demands to the plaintiff medical provider at the street address listed in its claim form. Indeed, plaintiff, in opposing summary judgment, did not meaningfully challenge the procedures followed by defendant in mailing the verification demands or deny its receipt of defendant’s demands; instead, plaintiff maintained that defendant’s verification demands were not received by its third-party biller, an entity known as Spendan Service Corp., which apparently conducts its business from a designated suite at the same street address from which plaintiff operates its medical facility. However, the conclusory denial of receipt of the verification demands advanced by plaintiff’s third-party biller was insufficient to raise a triable issue as to the efficacy of defendant’s mailings. Even assuming, arguendo, that the medical biller can properly be viewed, on this record, as plaintiff’s authorized representative for the purposes of receiving and responding to further verification requests (see 11 NYCRR 65-3.5[a],[c]; see and compare St. Vincent’s Hosp. v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]), plaintiff failed to make any showing that the verification demands were not received by the billing entity due to the absence from the mailings of its (the biller’s) suite number or otherwise (see Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 12, 2010, reversed, with $10 costs, motion granted and complaint dismissed. (See Darlington Med. Diagnostic, P.C. v Praetorian Ins. Co., appeal numbered 11-265, decided herewith.) The Clerk is directed to enter judgment accordingly.

In granting the defendant-insurer’s motion for summary judgment dismissing the within first-party no-fault action, we note that plaintiff’s third-party biller acknowledged receipt of defendant’s follow-up verification demand, but failed to explain why it took no responsive action. Moreover, contrary to the view expressed below and as plaintiff now expressly acknowledges, plaintiff neither claimed nor showed that it responded in any way to defendant’s properly issued verification demands.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 14, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 14, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s no-fault first-party benefit claim was warranted on the full record developed below. “The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Vela v Tower Ins. Co. of NY, 83 AD3d 1050, 1051 [2011], quoting Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [2004]). The mere intention to reside at certain premises is not sufficient (see Vela v Tower Ins. Co. of NY, 83 AD3d at 1051).

Here, defendant’s moving submission, including the properly considered (see Zalot v Zieba, 81 AD3d 935, 936 [2011], lv denied 17 NY3d 703 [2011]) transcripts of the examinations under oath (“EUO”) of plaintiff’s assignor and her husband, the named insured, established prima facie that the insured fraudulently procured insurance coverage by falsely listing a Pearl River, New York house owned by his father as his residence on the insurance application, when the insured and his wife (the assignor) actually resided, with their infant child, in an apartment in Cliffside Park, New Jersey, an address listed by the couple on their tax returns. In opposition, plaintiff, as assignee “stand[ing] in the shoes” of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), failed to raise a triable issue of fact. Plaintiff’s reliance on a snippet of the insured’s EUO testimony, in which he stated conclusorily that he and his family merely lived “part-time” in the Cliffside Park apartment, was plainly insufficient to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012

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 October 7, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124.

ORDERED that 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124. Contrary to plaintiff’s argument on appeal, defendant properly substantiated its allegations of fraudulent incorporation so as to warrant disclosure (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to compel disclosure. Plaintiff’s remaining contentions on appeal lack merit. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 06, 2012

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 (Carmen R. Velasquez, J.), entered March 4, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

The affidavits submitted by defendant in support of its motion established that defendant had timely mailed its requests and follow-up requests for verification (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]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims [*2]did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; 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]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and, thus, plaintiff’s action is premature.

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2012

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 (Sylvia G. Ash, J.), entered November 22, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 22, 2010 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 $3,071.33.

ORDERED that the judgment is reversed, without costs, the order entered November 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered November 22, 2010 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]).

Contrary to the determination of the Civil Court, the affidavit of defendant’s employee [*2]was sufficient to establish that defendant had timely mailed the denial of claim forms. The affidavit established that the denials had been mailed from defendant’s Woodbury office and described defendant’s standard mailing practice and procedure for that office (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Defendant denied the claims for services rendered from March 31, 2009 to September 24, 2009 on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Defendant demonstrated that it had fully paid plaintiff for these services in accordance with the workers’ compensation fee
schedule. Accordingly, the branches of defendant’s cross motion for summary judgment seeking to dismiss so much of the complaint as sought to recover for these dates of service should have been granted (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant denied the claims for services rendered on September 25, 2009 based upon an independent medical examination (IME). In support of its cross motion for summary judgment, defendant submitted the sworn report of the licensed acupuncturist who had conducted the IME of plaintiff’s assignor. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. In opposition, plaintiff submitted an affidavit from the treating acupuncturist which, while referring to the IME report, offered only a conclusory rebuttal to the conclusions set forth therein (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]). Accordingly, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on September 25, 2009 should have been granted (see 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, the order entered November 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2012

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 October 27, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied both the motion and the cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that plaintiff’s assignor had failed to appear for properly scheduled examinations under oath, and that the sole issue for trial was the timeliness of defendant’s denial of the claim. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

Contrary to the Civil Court’s finding, the affidavit executed by defendant’s litigation examiner demonstrated that defendant’s denial of claim form had been timely mailed (see St. [*2]Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 2012