SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), entered July 15, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), entered July 15, 2011, 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 summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 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 (William A. Viscovich, J.), entered September 8, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

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

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 its motion for summary judgment. The court further found that the issues remaining for trial were “whether defendant properly denied and reduced plaintiff’s claims in accordance to [sic] the fee schedule and whether defendant’s denial, without having sought any additional verification regarding the amount of time spent with the patient, was proper according to the regulations.”

The record reflects that plaintiff submitted a claim for six tests utilizing CPT code 97799 and that defendant, upon receiving the claim, unilaterally determined that the appropriate CPT code was 97750. Since CPT code 97750 is a “time based procedure code,” and since defendant [*2]did not have sufficient documentation demonstrating how long it took plaintiff to perform the billed-for services, defendant concluded that it would only pay for one unit of time, i.e., 15 minutes.

We do not pass upon whether defendant may unilaterally determine that plaintiff’s services should be compensated utilizing CPT code 97750 instead of code 97799, since even if defendant were permitted to unilaterally apply a code different from the one applied by plaintiff, defendant’s opposition to plaintiff’s motion was nevertheless insufficient to establish a triable issue of fact. Defendant’s basis for paying only part of the claim, utilizing CPT code 97750, was that in the absence of being notified by plaintiff of the amount of time it had actually taken for the services to be rendered, defendant arbitrarily opted to pay for the minimum amount of time designated therefor, i.e., only one unit of time. Since this determination by defendant is without any factual basis, as defendant never requested verification from plaintiff seeking information regarding the amount of time it had taken plaintiff to perform the services billed for, such a reduction has not been shown to be warranted (see A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]; see generally 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]). In light of the foregoing, defendant did not raise a triable issue of fact in opposition to plaintiff’s motion.

As defendant has not challenged the Civil Court’s finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff’s motion for summary judgment upon the unpaid portion of its claim is granted. Accordingly, the order, insofar as appealed from, is reversed, 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 Aliotta, JJ., concur.
Decision Date: July 25, 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 (Dawn Jimenez Salta, J.), entered March 11, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $10 costs.

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

Contrary to plaintiff’s contention, the affidavit of defendant’s claims division employee established that defendant’s denial of claim forms 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]). Moreover, defendant annexed to its cross motion papers affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the billed-for services. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. Plaintiff’s remaining contentions were either not raised in the Civil Court or lack merit. Consequently, defendant is entitled to summary judgment (see Delta [*2]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 is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 25, 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. Danziger, J.), entered November 7, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered November 7, 2011, 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 submitting, inter alia, an orthopedist’s peer review report, setting forth in some detail a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff’s claim for first-party no-fault benefits lacked medical necessity. Notably, defendant’s peer reviewer emphasized, among other factors, that his review of the assignor’s medical records showed “no findings of instability” or “positive … orthopedic signs” in connection with the assignor’s claimed shoulder injuries and that, although the arthoscopic procedure undertaken by plaintiff related to its assignor’s left shoulder, the assignor’s “chief complaint” at her initial, post-accident consultation involved her right shoulder. Plaintiff’s opposing submission, consisting solely of an attorney’s affirmation together with unsworn, and thus inadmissible medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to withstand summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 24, 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 (Terrence C. O’Connor, J.), entered October 18, 2010. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action 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 found, among other things, that plaintiff and defendant had established their prima facie cases with respect to the second through fifth causes of action 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 the branch of its cross motion [*2]seeking summary judgment dismissing the second through fifth causes of action.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies provided. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review 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]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 18, 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 (William A. Viscovich, J.), entered November 22, 2010. The order, insofar as appealed from as limited by the brief, 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. The Civil Court found that the evidence established plaintiff’s prima facie case and that “defendant established timely denials. The sole issue for trial is medical necessity.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered. Defendant’s showing that the services were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil [*2]Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s 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 Amercian 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 motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 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 (Johnny Lee Baynes, J.), entered July 24, 2009, deemed from a judgment of the same court entered August 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 24, 2009 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 $1,200.54.

ORDERED that the judgment is affirmed, without costs.

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 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]).

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant denied the claims based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affidavit [*2]submitted by defendant, the initial EUO had twice been rescheduled by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling, which occurs prior to the date of that scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition
precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, the judgment is affirmed. We reach no other issue.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 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 (Rudolph E. Greco, Jr., J.), entered April 13, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. On the return date, the motion was adjourned for approximately one year with the new return date falling on a Tuesday. Defendant served a cross motion for summary judgment dismissing the complaint on the Friday before the new return date, i.e., four calendar days before the return date. Plaintiff did not submit opposition to defendant’s cross motion. The Civil Court denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion.

Under the circumstances presented, we decline to consider defendant’s cross motion on the merits and affirm its denial on the ground that defendant failed to demonstrate that it had been timely served.

Plaintiff’s notice of motion states “Please take notice that answering affidavits, if any, are [*2]to be served upon the undersigned within seven (7) days prior to the return date of the within application.” We need not decide whether, as plaintiff argues, this was a proper demand, pursuant to CPLR 2214 (b), that any cross motion be served seven days before the return date of the motion since, in any event, defendant failed to even demonstrate that the cross motion was timely and properly served pursuant to CPLR 2215.

Pursuant to CPLR 2215, if CPLR 2214 (b) has not been invoked, cross motions are to be served three days prior to the time at which the motion is noticed to be heard. If the cross motion is served by mailing, it must be served six days prior to the return date for the motion (CPLR 2215 [a]) and if it is served by overnight delivery, it must be served four days prior to the return date (CPLR 2215 [b]). Defendant served the cross motion four days prior to the return date, but its affidavit of service failed to allege that service was made by overnight delivery or to offer sufficient facts to support such a finding (see CPLR 2103 [b] [6]).

Since plaintiff did not have an adequate opportunity to rebut the allegations contained in the cross motion (see Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 [1986]), including defendant’s allegations that the services at issue were not medically necessary, the cross motion should not have been considered.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 18, 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 (Jodi Orlow, J.), entered July 27, 2010, deemed from a judgment of the same court entered August 12, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 27, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion to dismiss the complaint, awarded plaintiff the principal sum of $844.13.

ORDERED that the judgment is reversed, without costs, so much of the order entered July 27, 2010 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, the Civil Court, by order entered July 27, 2010, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to dismiss the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant argues that plaintiff, a provider of durable medical equipment, was not entitled to bring this action as Omar Brown’s assignee because, according to Omar Brown’s sworn statement, it was not plaintiff who had provided the equipment at issue directly to him. However, plaintiff submitted an affidavit asserting that it is plaintiff’s business practice for plaintiff to disperse medical supplies directly to the patient, and that the practice was followed in this case. On this record, accelerated judgment for either party is inappropriate (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the judgment is reversed, so much of the order entered July 27, 2010 as [*2]granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 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, Richmond County (Orlando Marrazzo, Jr., J.), entered February 24, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that the denial of claim forms 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]). Furthermore, defendant demonstrated that one of the claims at issue, [*2]for dates of service June 6, 2006 through June 12, 2006, had been paid in full, as a copy of the cashed check was annexed to its motion. Plaintiff failed to dispute this payment in its opposition papers. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted.

Defendant also demonstrated that plaintiff had submitted three of the claims at issue, for dates of service July 16, 2007 through July 18, 2007, September 28, 2007, and June 3, 2008 through June 19, 2008, more than 45 days after the dates that the services had been rendered, in violation of Insurance Department Regulations (11 NYCRR) § 65-1.1. Moreover, the denial of claim forms pertaining to these three claims advised plaintiff that the late submission of the claims would be excused if plaintiff provided a reasonable justification for their lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), which plaintiff failed to do. Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these three claims should also have been granted (see Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50417[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Finally, in support of its motion, defendant submitted two affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the remaining services rendered by plaintiff. In opposition to the motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME reports (see High Quality Med., P.C. v GEICO Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52373[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims should also 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 order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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