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 November 15, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its motion for summary judgment, defendant submitted affidavits by employees of its special investigative unit which were sufficient to establish that letters [*2]scheduling examinations under oath (EUOs) and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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 an affirmation by one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). While plaintiff maintains that an insurer must advise an applicant that its failure to appear for an EUO will be excused where the applicant provides reasonable justification for the nonappearance, we find no basis in the regulations for imposing such a requirement (cf. Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Thus, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 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 29, 2010. The order granted defendant’s 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 Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, respectively, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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 [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff’s remaining contention lacks merit (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 27, 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 August 17, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered September 13, 2010 awarding plaintiff the principal sum of $3,328.90 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was [*2]subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by plaintiff’s billing supervisor was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment upon its first through fifth causes of action (see Westchester Med. Ctr., 78 AD3d 1168).

Defendant’s cross motion for summary judgment was properly denied. Defendant failed to establish that the initial verification and follow-up verification requests were timely mailed to plaintiff’s assignor (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]). Since defendant did not prove that the 30-day claim determination period was tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear at an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 27, 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 September 8, 2010. The order granted defendant’s 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 Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim [*2]forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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]). Since an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is affirmed.

We note that plaintiff’s remaining contention on appeal, to the effect that defendant failed to establish plaintiff’s failure to appear at the EUOs, is not properly before this court since it is raised for the first time in plaintiff’s reply brief on appeal. In
any event, plaintiff conceded in its papers submitted in opposition to defendant’s motion that plaintiff’s nonattendance was “not in dispute.”
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated March 30, 2011, as granted defendant’s motion to strike the notice of trial and compel discovery.

Per Curiam.

Order (Jose A. Padilla, J.), dated March 30, 2011, insofar as appealed from, reversed, with $10 costs, and motion denied.

The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 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 (Ben R. Barbato, J.), entered October 3, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered October 3, 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) and examinations under oath (EUOs) 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]; 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, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 25, 2012

District Court of Suffolk County, Third District

HUC 10836-11

C. Stephen Hackeling, J.

Upon the following papers numbered 1 to 21 read on this motion by defendant to dismiss action by Notice of Motion / Order to Show Cause and supporting papers 1,2,14 ; Notice of Cross Motion and supporting papers 10,11,14 ; Answering Affidavits and supporting papers 15,17 ; Replying Affidavits and supporting

papers 18,21 ; Filed papers; Other exhibits: 3-13; 16; 19-20 ; and after hearing counsel in support of and opposed to the motion)

it is,

ORDERED that the motion by defendant for dismissal of plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (7) is granted. The Clerk of the Court is hereby directed to enter judgment accordingly.

This is an action by plaintiff for payment of health services allegedly rendered to plaintiff’s assignor from an automobile accident on January 8, 2007 in the sum of $492.84, in addition to interest of 2% compounded per month pursuant to 11 NYCRR §65.15(g) and attorney fees of 20% of the overdue claim with a maximum of $850.00 and a minimum of $80.00 pursuant to 11 NYCRR §65.4.6(e), under New York’s No-Fault Law.

Defendant, in a pre-answer motion, now moves for dismissal of the action, contending that plaintiff violated a policy condition for verification of the claim, as plaintiff never [*2]appeared at a Examination Under Oath (“EUO”) on March 26, 2007 and the adjourned date of April 16, 2007, dates requested by defendant, and plaintiff failed to provide additional verification of the claim, as requested by defendant.

Defendant asserts it received a proof of claim from plaintiff within the statutory 45 days required from the date that medical services were rendered. Thereafter, defendant asserts it requested verification of the claim. Since a response from plaintiff was not received within the 30 day statutory period, defendant sent a follow-up second statutory request for verification. To date, plaintiff has not provided the requested verification.

In support of its motion to dismiss, defendant contends it was justified in seeking EUOs and further verification of plaintiff’s claims, based upon an investigation it commenced of plaintiff for improper organization, management and billing operations. Defendant submits, inter alia, a copy of the pleadings, the affidavits of Sibrena Johnson, an employee in the Special Investigative Unit, Christopher Howard, an investigator in the Special Investigative Unit, Denise Rafalski, a Claim Support Services Supervisor, and an affidavit from Michael Bellamy, the Administrative Services Mailroom Services Assistant for defendant, and an attorney’s affirmation from Joshua E. Mackey, Esq.

In opposition to defendant’s motion, plaintiff contends that

defendant was required to forward statutory timely verification requests. Plaintiff contends the defendant’s submitted proof is insufficient to establish a timely request.Furthermore, defendant contends the request to attend the EUO’s contained a document demand requiring plaintiff’s production, seven days prior to the scheduled EUO’s. Defendant contends the document demand included, inter alia, a demand for tax returns and general ledgers, and proof of ownership of the professional corporation, all of which were improper demands outside the scope of a verification request to substantiate a $492.84 claim. Plaintiff further asserts the request indicated the claim would not be paid if the requested documents were not provided. Therefore, plaintiff claims there was no point in going to the EUO’s, as defendant had no intention of paying the claim without receipt of the documents which were improperly requested.

Defendant replies it properly denied the claim as plaintiff never complied with the outstanding verification requests.

No-fault regulations mandate that a claim for health service expenses must be submitted by written proof of claim to the insurer, no later than 45 days after the date that health services were rendered (see 11 NYCRR §65-2.4[c]). An insurer can then issue payment or deny the claim (see 11 NYCRR §65.15). After receipt of the written proof of claim, a no-fault claim is overdue if not paid or denied by the insurer within 30 calendar days (see Insurance Law §5106[a]; 11 NYCRR §65-3.8[a][1]). An [*3]insurer may toll the 30 day period by requesting additional verification of the claim within 15 days from its receipt of the claim (see 11 NYCRR 65.15 [d][1][e]; NY & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2nd Dept 2006]). If the insurer has not received a verification from the plaintiff within 30 days of the initial request, the insurer may send a follow-up verification request within 10 calendar days (see 11 NYCRR 65.15[e][2]).

An appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay a no-fault claim (see 11 NYCRR §65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2nd Dept 2006]; Richmond Radiology, P.C. v American Transit Ins. Co., 33 Misc 3d 135[A][App. Term 2nd, 11th and 13th Jud. Dists. 2011]; Five Boro Psychological Services, P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A][App. Term 2nd, 11th and 13th Jud. Dists. 2010; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 [D. Ct. Nassau Co. 2010]).

A verification demand by an insurer will extend the 30 day

period until such time as the requested verification is received (see 11 NYCRR §65.15[g][1][I]; Hosp. For Joint Diseases v Elrac, Inc., 11 AD3d 432 [2nd Dept 2004]; Westchester County. Med. Ctr. v New York Cent. Mut. Fire Ins., 262 AD2d 553 [2nd Dept 1999]). Where a requested verification is not provided an insurer is not required to pay or deny the claim (see 11 NYCRR §65-3.8; NY & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2nd Dept 2004]).

Here, the Court determines that defendant’s papers in support of dismissal demonstrate that the EUO notices and verification requests were sent twice to plaintiff’s address pursuant to its standard office practice and procedure and were sufficient to establish timely notification of defendant’s EUO and verification requests (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123, 1124 [2nd Dept 2008]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Mis3d 140[A][App. Term, 2nd, 11th & 13th Jud Dists 2010]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A][App. Term, 9th & 10th Jud. Dists. 2007]). It is undisputed that plaintiff failed to respond in any manner to defendant’s EUO and verification requests. The affirmation of defendant’s EUO counsel demonstrates that EUOs were noticed and scheduled to be conducted at the office of defendant’s counsel on March 26, 2007 and the adjourned date of April 16, 2007, none of which were attended by a representative of plaintiff (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra; Five Boro Psychological Services, P.C. v Progressive Northeastern Ins. Co., supra). In addition, defendant demonstrated the timely mailing of the NF-10 denial of claims forms in accordance with defendant’s standard office practice and procedure (see St. Vincent’s Hosp. of Richmond v GEICO, supra at 1124). Plaintiff’s inaction to [*4]defendant’s timely notifications is fatal to its causes of action for alleged services rendered (see Crescent Radiology, PLLC., as Assignee of Spiros Arbiros v American Transit Ins Co., 31 Misc 3d 134[A][App Term, 9th & 10th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., supra).

Plaintiffs Must Make Written Objection To ImproperVerification Request To Avoid Denial Toll.

Nonetheless, defendant’s request for the production of documents and information seven days prior to the EUO is troubling to the Court. The request, as plaintiff contends, is clearly outside the scope of permissible information. Lower Courts have found this type of EUO request for documents and information to be “palpably improper” (see Concourse Chiropractic, PLLC., v State Farm Mutual Ins. Co., 35 Misc 3d 1213[A][D. Ct. of Nassau Co. 2012]; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., supra at 285). “The regulations do not give the insurer the right to ask an assignee to produce documents relating to the corporate structure or finances of a medical provider” (see 11 NYCRR 65-3.5[a]; Dynamic Med. Imaging, P.C. v State Farm Mutual Automobile Ins. Co., supra at 283. “The regulations only permit the insurer to obtain written information to verify the claim” (Id. at 283; see also 11 NYCRR 65-3.5[b]). “Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial documents a week in advance of an EUO” (Id. at 283). Disclosure of tax returns “is disfavored since income tax returns contain confidential and private information” (Id. at 283; see also Walter Carl, Inc. v Wood, 161 AD2d 704, 705 [2nd Dept 1990]). A party seeking the production of tax returns must make a strong showing of necessity and an inability to obtain tax returns from any other source (see Abbene v Griffin, 208 AD2d 483 [2nd Dept 1994]).

However it is the plaintiff’s reaction to the “palpably improper” document demand of defendant’s EUO request that vitiates its causes of action. Here, the plaintiff did nothing and did not contact the defendant’s counsel to protest the document request.There is no provision in the no-fault regulations which permit a claimant or an insurance company to ignore communications from each other “without risking its chance to prevail in the matter” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., supra at *2; Media Neurology, P.C. v Countrywide Ins. Co., 21 Misc 3d 1101[A][NY City Civ. Ct. 2008]; All Health Medical Care, P.C. v Gov. Employees Ins. Co., 2 Misc 3d 907 [NY City Civ. Ct. 2004]); see Westchester Cty. Med. Center v NY Central Mutual Fire Ins. Co., 262 AD2d 553, 555 [2nd Dept 1999]. [*5]

It is well established that the No-Fault statute is designed

to ensure prompt resolution of claims by accident victims. “Any questions concerning a communication should be addressed by further communication, not inaction” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., citing Dilon Medical Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927 [NY City Civ. Ct. 2005]). By failing to respond in some manner to defendant’s verification request, “plaintiff undermined the purpose of the No-Fault statute, which is to ensure the prompt resolution of claims” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., supra at *2).It is incumbent upon the plaintiff to mail a “Malella Discovery Objection” letter in response to such an improper verification request so as to prevent a “denial toll” and run the thirty (30) days to pay time period. Island Chirop. Testing, P.C. v. nationwide Ins. Co., 2012 NY Slip Op 51001 (u). As an objection was not interposed, the defendant’s 30 day period to pay continuing to be tolled, requiring dismissal of this complaint as premature.

Plaintiffs Must Appear Or Raise Written

Objection to EUO Demand

The plaintiff’s assignee also did not show up at either date for the EUO’s. Again, there was no protest of the fact that the EUO’s were scheduled at the inconvenient location of Poughkeepsie, New York, a few hours upstate from plaintiff’s office in Nassau County. Nor did the plaintiff request reimbursement for time and travel expenses “thereby preserving its defenses concerning the EUO notices” (see Canarsie Chiropractic, P.C. v State Farm Mutual Auto. Ins. Co., 27 Misc 3d 1228[A][NY City Civ. Ct. 2010]).

The Court further determines, that by not appearing at the properly noticed EUO, plaintiff did not fulfill a condition precedent which would have required defendant to pay its no-fault claim (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., supra at 722).Even if the plaintiff timely mailed a “Malella Discovery Objection”, it is still incumbent for the assignor to appear at the EUO as a precondition to commencing a lawsuit to recover upon the claim.

Accordingly, the motion by defendant to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (7) is granted. Plaintiff’s complaint is hereby dismissed.

Dated: June 15, 2012Hon. C. Stephen Hackeling

J.D.C.

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.), dated October 4, 2010. 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 its motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), the entity which scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavit [*2]executed by defendant’s claims examiner demonstrated that its denial of claim form, which denied the claim based upon the failure of plaintiff’s assignor to appear for 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). Defendant also submitted affirmations by its examining physicians stating that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 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, Richmond County (Orlando Marrazzo, Jr., J.), entered February 24, 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 affirmed, without costs.

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 its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

As the affirmed peer review report submitted by defendant failed to clearly establish a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (compare 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]), defendant’s motion was properly denied. Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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 (Johnny Lee Baynes, J.), entered October 7, 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 and plaintiff cross-moved for summary judgment. The Civil Court found that defendant and plaintiff had established their prima facie cases and that the sole issue for trial was whether plaintiff’s assignor had failed to appear at scheduled independent medical examinations (IMEs). 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, among other things, affidavits from its examining chiropractors, both of whom stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. In opposition to the motion, plaintiff submitted an affirmation from its counsel, which failed to raise a triable issue of fact. [*2]
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]; 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 motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 11, 2012