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

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.), entered September 15, 2010. The order denied plaintiff’s motion to, in effect, vacate an order of the same court (Richard G. Latin, J.) entered May 13, 2010, which had dismissed the complaint upon plaintiff’s default in complying with a prior conditional order of the same court (Diane A. Lebedeff, J.) entered September 30, 2009.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Diane A. Lebedeff, J.), by order entered September 30, 2009, granted the branch of a motion by defendant seeking to compel plaintiff to provide responses to defendant’s outstanding discovery demands. The order required plaintiff to produce, among other things, the personal tax returns of its principal owner within 30 days of the date of the order, and provided that plaintiff’s noncompliance would “result in dismissal of plaintiff’s complaint with prejudice by filing an affidavit of noncompliance and settle [sic] order.” Thereafter, defendant served plaintiff with a proposed order with notice of settlement and an affirmation of noncompliance alleging that [*2]plaintiff had failed to produce the aforementioned tax returns. By order entered May 13, 2010, the Civil Court (Richard G. Latin, J.) dismissed the complaint with prejudice. Plaintiff contested neither the affirmation of noncompliance nor the proposed order.

Plaintiff then moved, pursuant to CPLR 5015 (a) (3), to, in effect, vacate the order dismissing the complaint on the ground that defendant had misrepresented plaintiff’s noncompliance with the order entered September 30, 2009. By order entered September 15, 2010, the Civil Court (Maureen A. Healy, J.) denied the motion.

Plaintiff’s contention on appeal, in effect, that defendant did not timely submit the proposed order with notice of settlement for court approval in accordance with Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a) is unpreserved for appellate review because plaintiff failed to raise the issue in the Civil Court (see Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596, 597 [1992]; cf. Mora v Mora, 39 AD3d 829 [2007]).

Furthermore, plaintiff failed to satisfy its burden of establishing the existence of any misrepresentation on the part of defendant because plaintiff did not demonstrate that it had, in fact, produced the personal tax returns of its principal owner in compliance with the order entered September 30, 2009 (see CPLR 5015 [a] [3]; see generally Welz v Welz, 83 AD3d 696, 697 [2011]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

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, Queens County (Terence C. O’Connor, J.), dated October 21, 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 affirmed, without costs.

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, among other things, that defendant had submitted “sufficient evidence to establish its timely and proper denial,” and that “[t]he sole issue remaining for trial” is whether defendant established its defense of failure to appear at an independent
medical examination (IME). Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion for summary judgment, defendant submitted an affidavit by its no-fault litigation examiner, who stated, among other things, that defendant had requested that “National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff’s [*2]assignor.” Defendant did not submit an affidavit by an employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled. Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which managed all of the administrative requirements of Transcion Medical, P.C., who stated, among other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor. In view of the foregoing discrepancy, the Civil Court properly determined that defendant had failed to establish its defense based upon the failure of plaintiff’s assignor to appear at an IME.

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

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, Queens County (Carmen R. Velasquez, J.), entered September 22, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied defendant’s cross motion for summary judgment dismissing the complaint, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” So much of the appeal as is from the portion of the order granting the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from a judgment of the same court entered October 18, 2010 awarding plaintiff the principal sum of $1,285.56 (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 on the first and second causes of [*2]action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding; as so modified, the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action, denied defendant’s cross motion for summary judgment dismissing the complaint in its entirety, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” After plaintiff filed a notice of appeal, a judgment was entered awarding plaintiff the principal sum of $1,285.56 on its first and second causes of action. The appeal from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from the judgment (see CPLR 5501 [c]).

We find that the Civil Court improperly granted plaintiff summary judgment on the first and second causes of action. While the court accepted defendant’s allegation that the medical equipment at issue in this case was not delivered directly to plaintiff’s assignor, plaintiff submitted an affidavit which squarely contradicts that allegation. Since the key to summary judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), neither party should have been granted summary judgment on the first and second causes of action. Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied.

The Civil Court correctly denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action, as defendant proffered only conclusory allegations that plaintiff had submitted insufficient responses (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). However, there is no basis in the record for the Civil Court’s finding of the existence of a triable issue of fact as to whether defendant’s verification requests were proper. Accordingly, the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding.

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 (Wavny Toussaint, J.), entered November 18, 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 denied the motion and cross motion, and found that the sole issue for trial was the medical necessity of the services 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, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The [*2]affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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.

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