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 October 14, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action.

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, the Civil Court properly denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action as there is a triable issue
of fact regarding the medical necessity of the acupuncture services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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 December 8, 2010. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that arbitration was the proper forum for this dispute because a claim by a different provider of no-fault benefits, as the assignee of the same assignor and arising from the same accident, had already been arbitrated (citing In the Matter of the Arbitration between Alexander Berenblit, M.D./Donald Joachim and Allstate Insurance Company) or, in the alternative, that the award from that arbitration, in which the arbitrator had found that plaintiff’s assignor had failed to appear for an examination under oath (EUO) and, thus, had failed to comply with a condition precedent to coverage, should be given collateral [*2]estoppel effect. The Civil Court granted defendant’s motion on the ground that “a claim for this assignor and accident had been previously submitted to the American Arbitration Association” and, therefore, “a forum has already been chosen” (citing Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]).

A prior arbitration proceeding involving one claimant provider seeking reimbursement of assigned first-party no-fault benefits does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even where the claims have been assigned by the same individual and have arisen from the same accident (see Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66 NY2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party no-fault benefits waived the right to commence an action to litigate subsequent claims arising from the same accident]). Since the arbitration proceeding upon which the court relied had been commenced by a different provider, Alexander Berenblit, M.D., not plaintiff herein, the complaint was improperly dismissed on the ground that arbitration was the proper forum for this dispute.

We reject defendant’s alternative ground for its motion as well. Defendant failed to demonstrate that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for an EUO, and therefore that it is not precluded from asserting its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, the doctrine of collateral estoppel applies only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d at 23).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 21, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered October 21, 2010 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, without costs, so much of the order entered October 21, 2010 as granted defendant’s cross motion for summary judgment
dismissing the complaint is vacated, and defendant’s cross motion for summary judgment 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 denying plaintiff’s motion for summary judgment and granting 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]).

In support of its cross motion for summary judgment, defendant established that it had [*2]timely denied the claims at issue (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]) on the ground of lack of medical necessity. Moreover, defendant submitted two sworn peer review reports 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. However, in support of its motion for summary judgment, plaintiff submitted an affirmed letter of medical necessity from the treating chiropractor, which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). Accordingly, defendant’s cross motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We note that defendant’s objection on appeal to the fact that plaintiff’s submission was affirmed, not sworn, was waived, as defendant failed to raise that objection in the Civil Court (see Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 29 Misc 3d 137[A], 2010 NY Slip Op 52022[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

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

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 (Robin S. Garson, J.), entered June 8, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third [*2]causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are 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 granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

The affidavits submitted by defendant in support of its cross motion were sufficient to establish that defendant 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]) plaintiff’s claims at issue, based upon the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the claims for acupuncture services billed under CPT codes 97810 and 97811, 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 order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 (Kathryn E. Freed, J.), entered December 4, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006, and denied the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are granted. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 and denied the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which 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]). With respect to plaintiff’s claims for acupuncture services rendered from August 16 through October 25, 2006, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to plaintiff’s claims for acupuncture services rendered from October 26, 2006 through December 11, 2006, defendant submitted a sworn independent medical examination (IME) report which concluded that there was a lack of medical necessity for those services. An affidavit by plaintiff’s acupuncturist submitted in opposition to defendant’s cross motion failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]).

In view of the foregoing, defendant was entitled to summary judgment on the branches of its cross motion seeking summary judgment dismissing plaintiff’s claims for acupuncture services rendered from August 16 through December 11, 2006. Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing the complaint [*3]
insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 (Ingrid Joseph, J.), entered July 9, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007 is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of its cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

In support of its cross motion, defendant submitted affidavits by employees of its claims [*2]division, which were sufficient to establish that defendant had timely denied the claims of plaintiff Gentle Care Acupuncture, P.C. (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]) for dates of service June 7, 2007 through September 19, 2007, 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 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since defendant fully paid the amount to which plaintiff Gentle Care Acupuncture, P.C. was entitled for acupuncture services rendered from June 7, 2007 through September 19, 2007, the branches of defendant’s cross motion for summary judgment seeking to dismiss plaintiff Gentle Care Acupuncture, P.C.’s claims for these dates of service should have been granted.

Defendant also timely denied plaintiff Gentle Care Acupuncture, P.C.’s claims for acupuncture services rendered from September 24, 2007 through October 3, 2007, based upon an independent medical examination (IME) performed by defendant’s acupuncturist, who found a lack of medical necessity for further acupuncture services. The IME report, which was accompanied by the examining acupuncturist’s affidavit, concluded that the assignor’s injuries had resolved and that there was no need for further acupuncture treatment. Although plaintiff submitted, in opposition to the cross motion, an “Affidavit of Medical Necessity” of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Gentle Care Acupuncture, P.C. v Geico Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52226[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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 branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from September 24, 2007 through October 3, 2007 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]).

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 April 12, 2010. The order granted defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

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 granted defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of collateral estoppel.

Collateral estoppel is a specific form of res judicata which bars “a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “In order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action or proceeding and be decisive of the present action or proceeding, and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” [*2](Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777, 778 [2008]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Furthermore, the party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Concord Delivery Serv., Inc. v Syossot Props., LLC, 19 Misc 3d 40, 43 [App Term, 9th & 10th Jud Dists 2008]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In the case at bar, defendant established that the issue whether the assignor’s injuries arose “out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) was identical to the issue previously decided by the jury in an earlier personal injury action which plaintiff’s assignor had commenced against defendant’s insured. In support of its motion, defendant submitted a copy of the verified complaint from the prior action, in which it was alleged that defendant’s insured “struck” plaintiff’s assignor with her car, a transcripted copy of the jury verdict, in which the jury determined that the vehicle of defendant’s insured never made “contact” with plaintiff’s assignor, and a copy of the judgment dismissing the prior action. Thus, defendant demonstrated that plaintiff was ineligible to receive reimbursement of no-fault benefits because the assignor’s injuries did not result from an insured incident (see Central Gen. Hosp., 90 NY2d at 199).

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 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 (Maureen A. Healy, J.), dated August 18, 2010. The order, in effect, denied defendant’s motion to strike the complaint based on plaintiff’s failure to comply with a discovery stipulation.

ORDERED that the order is reversed, without costs, and defendant’s motion to strike 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, in effect, denied its unopposed motion to strike the complaint on the ground that plaintiff had failed to comply with a May 2010 stipulation. It is uncontroverted that plaintiff did not comply with the terms of the May 2010 stipulation between the parties, which provided that, if plaintiff failed to respond to defendant’s outstanding discovery demands within 30 days, it would be precluded “from offering evidence or contesting any defense as to those items demanded but not provided.” [*2]

The May 2010 stipulation was not “so-ordered” and, thus, did not function as a conditional order of preclusion which becomes absolute upon a failure to comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, it was subscribed by the parties’ attorneys (see CPLR 2104). Stipulations of settlement are independent contracts that are subject to the principles of contract law, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d 551 [2002]). The courts will generally deny enforcement of a stipulation where its enforcement would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]).

Defendant’s discovery demands included, among other things, a request for a declaration as to whether plaintiff had submitted any no-fault claims and, if so, copies of those claims. As plaintiff failed to respond to this demand, we find no basis to deny enforcement of the stipulation, pursuant to which plaintiff is precluded from offering evidence of its claims. Consequently, plaintiff cannot make out its prima facie case.

Accordingly, the order is reversed and defendant’s motion to strike the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

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

Appeal from an order the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 14, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the supplies provided. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor, which failed to [*2]meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (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.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), dated December 15, 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, without costs.

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

The affidavit by defendant’s no-fault examiner established that defendant was first notified of plaintiff’s assignor’s accident, which occurred on July 11, 2007, through the receipt of the assignor’s NF-2 form, which was dated September 25, 2007. As a result, defendant denied plaintiff’s claims on the ground that proper notice of claim in writing had not been received by defendant within 30 days from the date of accident, as required by Insurance Department Regulations (11 NYCRR) § 65-1.1 (see also New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, defendant [*2]established its prima facie entitlement to judgment as a matter of law, and the burden then shifted to plaintiff to demonstrate a triable issue of fact. In opposition, however, plaintiff did not proffer any proof, but merely speculated that defendant could have received timely notice of the accident from another source. Additionally, despite being informed through the denial of claim forms that the late notice would be excused if plaintiff could provide reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff failed to do so. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact and, thus, the District Court properly granted defendant’s cross motion for summary judgment dismissing the complaint. Consequently, we need not address the merits of plaintiff’s one-sentence argument made in support of granting its motion for summary judgment.

Accordingly, the order is affirmed.

Molia, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: June 27, 2012