Decided on March 16, 2015

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 10, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court denied defendant’s motion.

Defendant submitted sufficient proof to show that the EUO and IME scheduling letters 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]); that, where necessary, the time to pay or deny plaintiff’s claim had been tolled by issuance of those letters; that plaintiff’s assignor had failed to appear for any of the properly scheduled EUOs and IMEs; and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). We note that, contrary to plaintiff’s argument on appeal, the mailing affidavit submitted by defendant alleged that two copies of each denial of claim form were mailed to plaintiff. In any event, the failure to send a denial in duplicate is not, on its own, a fatal error (Mollo Chiropractic, PLLC v American Commerce Ins. Co., 42 Misc 3d 66, 69 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Since an assignor’s appearance at any properly scheduled EUO or IME is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 14, 2012, deemed from a judgment of the same court entered September 24, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 14, 2012 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,282.32.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests 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]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied these claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant established its prima facie entitlement to summary judgment dismissing the complaint.

In plaintiff’s papers submitted in opposition to defendant’s motion and in support of plaintiff’s cross motion, plaintiff annexed, among other things, a so-ordered stipulation which states that if defendant failed to provide discovery responses within 60 days of the date of the so-ordered stipulation, defendant would be precluded from offering any evidence concerning the information which plaintiff had sought and which defendant had failed to provide. While plaintiff’s counsel asserts that defendant failed to comply with the so-ordered stipulation and that plaintiff had sought discovery pertaining to defendant’s defense that plaintiff’s assignor had failed to appear, plaintiff’s cross-moving papers do not contain a copy of the discovery demands served by plaintiff and, in any event, the record does not establish, prima facie, that defendant failed to comply with the terms of the so-ordered stipulation. In light of the foregoing, neither party is entitled to summary judgment, as there is an issue of fact as to whether defendant is barred from interposing its proffered defense due to defendant’s alleged failure to comply with the so-ordered [*2]stipulation.

Accordingly, the judgment is reversed, so much of the order entered May 14, 2012 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

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

Decided on March 16, 2015

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 September 20, 2012. The order denied plaintiff’s motion for summary judgment.

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 unopposed motion for summary judgment. We affirm.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see 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]). Thus, contrary to plaintiff’s argument on appeal, the Civil Court properly found that plaintiff had failed to establish its entitlement to summary judgment.

Accordingly, the order is affirmed.

Decided on March 16, 2015

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 26, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

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

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests 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]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which, insofar as is relevant to this appeal, denied the claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the Civil Court should have granted defendant’s motion for summary judgment.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 17, 2012. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs, and, upon searching the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action and, with respect to plaintiff’s first cause of action, found that there was an issue of fact as to whether plaintiff had provided the verification which defendant had requested.

In support of the branch of its cross motion seeking summary judgment dismissing the second cause of action, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME requests 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]). Defendant also submitted, among other things, affirmations and an affidavit from the medical providers who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim form, which denied this claim based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the court properly granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

Plaintiff’s contention that it is entitled to summary judgment upon its first cause of action lacks merit. While defendant argued that it was entitled to summary judgment dismissing this cause of action because plaintiff had failed to provide requested verification, the Civil Court found that there was an issue of fact as to whether plaintiff had responded to defendant’s verification requests. However, we need not reach this issue since, as noted above, the record establishes that plaintiff’s assignor failed to appear for duly scheduled IMEs, and, thus, on that ground, defendant is likewise entitled to summary judgment dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720). As this appellate court has the power [*2]to search the record on this appeal by plaintiff and to award summary judgment to the nonappealing defendant (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), upon searching the record, we award summary judgment to defendant dismissing plaintiff’s first cause of action (Stephen Fogel Psychological, P.C., 35 AD3d 720).

Accordingly, the order, insofar as appealed from, is affirmed and, upon a search of the record, summary judgment is awarded to defendant dismissing plaintiff’s first cause of action.

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

Decided on March 16, 2015

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 (Barry A. Schwartz, J.), entered August 14, 2012. 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 $25 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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

On appeal, plaintiff argues that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff’s motion for summary judgment should have been granted and defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled EUOs. Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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 on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted two peer review reports, along with affidavits executed by the chiropractors who had performed the peer reviews, which set forth a factual basis and medical rationale for each reviewer’s determination that there was a lack of medical necessity for the supplies at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently 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]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and 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]).

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

Decided on March 16, 2015

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 January 11, 2011. The order denied a motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, with $30 costs, and the motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Encompass Insurance Company (Encompass) appeals from an order of the Civil Court which denied Encompass’s motion for summary judgment dismissing the complaint insofar as asserted against it.

A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As Encompass has established that the claim forms at issue were received by it on or before February 8, 2001, it correctly argues that plaintiff’s causes of action accrued on or before March 10, 2001, and, thus, this action, which was commenced in June 2007, is untimely (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

We reject plaintiff’s argument that Encompass was required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is reversed and the motion by Encompass for summary judgment dismissing the complaint insofar as asserted against it is granted.

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