SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

THE CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: March 20, 2012

Supreme Court, Nassau County

4399-10

Attorneys for Plaintiffs- McDonnell & Adels, PLLC, 401 Franklin Avenue, Garden City, NY 11530

and Rivkin Radler LLP, 926 RXR Plaza, Uniondale, NY 11556

Attorneys for Defendants- The Zuppa Frim, PLLC, 53 Herbert Street, Brooklyn, NY 11222

Steven M. Jaeger, J.

The following papers read on this motion: [*2]

Notice of Motion, Affirmation, and ExhibitsX

Affirmation in Opposition and ExhibitsX

Memorandum of Law on Behalf of Defendants in OppositionX

Reply Memorandum of LawX

Memorandum of LawX

Motion by plaintiff for judgment pursuant to CPLR 3211(a)(7) dismissing defendants’ second, third, fourth, fifth and sixth counterclaims as alleged in defendants’ [Second] Amended Answer and Counterclaims is granted, with prejudice as to the second, third, fifth, and sixth counterclaims, and without prejudice as to the fourth counterclaim. The first cause of action for breach of contract is severed and continued.

In 2010 plaintiff commenced this action for a declaratory judgment and to recover no-fault payments made to the defendant professional corporations. Defendants asserted six counterclaims in their amended answer. Plaintiff previously sought dismissal of five of the counterclaims, and on that motion this Court directed defendants to serve a second amended answer and counterclaims in compliance with statutory pleading requirements (Order dated August 10, 2011, annexed as Exhibit E to plaintiff’s moving papers).

Plaintiff now seeks dismissal of the same five counterclaims for consequential damages, common law fraud, violation of General Business Law ｧ349, punitive damages, and violation of Judiciary Law ｧ487, as alleged in the [Second] Amended Answer and Counterclaims. Plaintiff contends that defendants’ only sustainable cause of action is for breach of contract based upon State Farm’s allegedly improper failure to pay no-fault benefits.

3211 Dismissal Standard

On a motion to dismiss pursuant to CLR 3211, the facts as alleged must be accepted as true, the pleader must be accorded the benefit of every favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable theory (Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; Arnav Industries, Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 303 [2001]). The criterion on a motion pursuant to CPLR 3211(a)(7) is whether the pleader has a cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Discussion

At the outset the Court notes for the record that defendants’ [Second] [*3]Amended Answer and Counterclaims is 79 pages long and contains 528 paragraphs, as compared to the Amended Answer and Counterclaims which was 172 pages long and contained 981 paragraphs. While this second amended pleading is shorter, it still suffers from “a mass of verbiage and superfluous matter” (Tankoos v Conford Realty Co., 248 AD 614 [2nd Dept 1936]). Nevertheless the Court will review the [Second] Amended Answer and Counterclaims pursuant to the dismissal standard of CPLR 3211(a)(7), to determine if defendants have a cause of action against plaintiff, other than one for breach of contract.

Fraud

The third counterclaim purports to allege a cause of action for common law fraud. Defendants allege that State Farm promised pre-accident policy holders, and by extension the defendants, that it would pay up to $50,000 per eligible injured person (EIP), that these promises were false, and that policy holders purchased insurance from State Farm in reliance upon these false promises. Post-accident misrepresentations included that State Farm would fairly adjust the EIPs’ claims, and timely pay all legitimate claims, and in reliance thereon, the defendants accepted the assignment of claims from EIP assignors who were State Farm policy holders. The post-accident representations include the alleged “predetermined” Independent Medical Examinations (“IMEs”), the alleged use of “fraud mills,” the alleged improper Peer Review Reports, alleged “sham investigations by legally unqualified investigators,” alleged improper use of Examinations Under Oath, alleged routine denial of proper claims, and alleged false and deceptive litigation practices.

A tort obligation is a duty imposed by law to avoid causing injury to others (New York University v Continental Ins. Co., 87 NY2d 308, 316 [1995]). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389 [1987]; Yenrab, Inc v 794 Linden Realty LLC, 68 AD3d 755 [2nd Dept 2009]; Heffez v L & G General Const. Inc., 56 AD3d 526 [2nd Dept 2008]). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (Clark-Fitzpatrick, Inc. at 389). Furthermore, the allegation that a party entered into a contract while lacking the intent to perform is insufficient to state a cause of action for fraud (Dune Deck Owners Corp v Liggett, 85 AD3d 1093 [2nd Dept 2011]; Stangel v Chen, 74 AD3d 1050 [2nd Dept 2010]).

Here, both the alleged pre-accident promises and post-accident [*4]misrepresentations arise out of the State Farm’s contractual obligation to honor its policies and make no-fault payments as required by the no-fault regulations. No separate obligation or tort duty to pay no-fault claims exists. On this record defendants have no cause of action against State Farm for fraud, and accordingly dismissal of the third cause of action for common law fraud must be granted.

General Business Law ｧ349

In the fourth counterclaim defendants allege that State Farm has committed multiple violations of General Business Law ｧ349. This statute declares as unlawful “[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24 [1995]). To state a claim under this statute a pleader must allege (1) acts or practices that are “consumer oriented,” (2) that such acts or practices are misleading in a material way, and (3) that the pleader has suffered actual harm by reason of those acts (Gaidon v Guardian Life Ins Co of America, 94 NY2d 330, 344 [1999]). Conduct is “consumer oriented” if it has “a broader impact on consumers at large” and may “potentially affect similarly situated consumers” (Oswego at pp. 25-26).

Here, defendants allege that State Farm has used inaccurate and false information to improperly delay and deny claims, that such conduct is “likely to mislead a reasonable consumer in the Acupuncture PCs’ circumstances,” that consumers at large have been injured by such practices, and that such practices have caused actual harm to the Acupuncture PCs and the public in general (see [Second] Amended Answer and Counterclaims, pars. 505-510). The problem with this pleading is that defendants’ injury is indirect or derivative of that suffered by policy holders whose claims were allegedly delayed or denied, and therefore it appears that defendants lack standing to assert this ｧ349 claim.

An injury is indirect or derivative when the loss arises solely as a result of injuries sustained by another party (Blue Cross & Blue Shield of NJ Inc v Philip Morris USA Inc., 3 NY3d 200, 207 [2004]). If a pleader could avoid the derivative injury bar by merely alleging that its suit would somehow benefit the public, then the “tidal wave of litigation” guarded against in Oswego (85 NY2d at 26) “would loom ominously on the horizon” (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 623 [2009]). Where, as here, the claimed injury arises wholly as a result of injury to others, and the pleader “is only secondarily damaged” (MVB Collision Inc v Progressive Ins. Co., 2010 WL 3617134 (Sup Ct, Nassau Cty, 2010)), the claimed injury is not compensable under ｧ349.

Defendants attempt to clear the standing hurdle by asserting that they are [*5]assignees of the policy holders whose claims were allegedly delayed or denied, and that as assignees, they stand in the shoes of the assignors ([Second] Amended Answer and Counterclaims, par.16). However the assignment of contractual claims does not automatically entail the right to assert tort claims arising from the contract (Banque Arabe et Internationale D’Investissement v Maryland Nat. Bank, 57 F3d 146, 151 [2d Cir 1995]; State of Ca. Public Employees’ Retirement Sys v Shearman & Sterling, 95 NY2d 427 [2000]; Fox v Hirschfeld, 157 App Div 364 [1st Dept 1913]). Assignments of rights under the no-fault law generally encompass the right of the assignee to sue for payment of the benefits provided tothe assignor. Whether such an assignment includes additional rights depends, inter alia, on the language of the assignment instrument, which has not been submitted to this Court. Under these circumstances dismissal of the fourth counterclaim for violation of General Business Law ｧ349 is granted without prejudice (see State Farm Mut. Auto. Ins Co. v Mallela, 175 F Supp 2d 401 [EDNY 2001]).

Judiciary Law ｧ487

Judiciary Law ｧ487, which governs misconduct by attorneys, provides for the recovery of treble damages from an attorney who is guilty of deceit or collusion, or an alleged chronic, extreme pattern of legal delinquency (Rock City Sound , Inc v Bashian & Farber, LLP, 74 AD3d 1168, 1172 [2nd Dept 2010], lv app dsmd 16 NY3d 826 [2011]; Izko v Sportswear Co, Inc, v Flaum, 25 AD3d 534, 537 [2nd Dept 2006]). This statutory cause of action is only applicable to attorneys and cannot extend derivative liability to a client (Yalkowsky v Century Apts. Assoc., 215 AD2d 214 [1st Dept 1995]).

Defendants’ sixth counterclaim for violation of Judiciary Law ｧ487 is based upon the allegation that State Farm’s General Counsel ratified and encouraged the submission of fraudulent affidavits in litigation involving defendants ([Second] Amended Answer and Counterclaims, par. 521). This does not suffice as a basis for a claim pursuant to Judiciary Law ｧ487 against State Farm, and the sixth counterclaim is summarily dismissed.

Consequential Damages

In the second counterclaim defendants seek consequential damages based upon “State Farm’s multiple breaches of contract” ([Second] Amended Answer and Counterclaims, par. 464). They seek damages for the loss of defendant Anikeyeva’s business, allegedly caused by the State Farm’s failure to pay no-fault benefits under its policies.

Consequential damages are recoverable for breach of contract in limited [*6]circumstances, where such damages were within the contemplation of the parties as the probable result of a breach at the time of, or prior to, contracting (Bi-Economy Market, Inc v Harleysville Ins Co of New York, 10 NY3d 187, 192 [2008], citing Kenford Co v County of Erie, 73 NY2d 312, 319 [1989]). Defendants were not yet on the scene at the time that the subject insurance policies were issued by State Farm to its policy holders. Therefore, there could have been no contemplation of defendants’ consequential damages at the time the policies were issued. In short, defendants simply have no cause of action for consequential damages based upon the allegations of State Farm’s multiple breaches of contract. Accordingly dismissal of the second counterclaim for consequential damages must be granted.

Punitive Damages

The fifth counterclaim purports to allege a cause of action for punitive damages, based upon State Farm’s “far reaching pattern of false, deceptive and fraudulent conduct,” which “has harmed and will continue to harm, the public at large” ([Second Amended Answer and Counterclaims, par. 515).

New York does not recognize an independent cause of action for punitive damages (Rocanova v. Equitable Life Assur. Society. of U.S., 83 NY2d 603, 616, [1994]; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612 [2nd Dept 2012]). Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights (Rocanova at 613). Punitive damages are available where the conduct constituting or associated with the breach of contract is (1) actionable as an independent tort for which compensatory damages are ordinarily available, and (2) sufficiently egregious to warrant the additional imposition of exemplary damages (Rocanova at 613).

On this record defendants do not have an independent tort claim against State Farm, and for this reason there is no need for the Court to address the egregiousness of the alleged conduct by State Farm. Dismissal of the fifth counterclaim for punitive damages must be granted.

It is so Ordered.

Dated: March 13, 2012

__________________________________________

STEVEN M. JAEGER, A.J.S.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 (Devin P. Cohen, J.), entered July 15, 2010. The order, insofar as appealed from, granted the branch of plaintiff’s motion for summary judgment seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied the branch of defendant’s cross motion seeking summary judgment with respect to said portion of the fifth cause of action, is deemed from a judgment of the same court entered August 20, 2010 awarding plaintiff the principal sum of $618.84 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary [*2]judgment dismissing plaintiff’s first through third and sixth through tenth causes of action, and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted; as so modified, the order, insofar as appealed from and insofar as reviewed on direct appeal, 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 entered July 15, 2010 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon so much of the fifth cause of action as seeks to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered awarding plaintiff the principal sum of $618.84 on that portion of its fifth cause of action.

In the July 15, 2010 order, the Civil Court found, among other things, that, with respect to the first through third, sixth, seventh, ninth and tenth causes of action, plaintiff had established its prima facie entitlement to judgment as a matter of law, that defendant had established timely and proper denial of claim forms and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. In support of the branches of its cross motion seeking to dismiss these causes of action, defendant submitted, among other things, affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the services rendered. As defendant’s showing that the services were not medically necessary was unrebutted by plaintiff and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these causes of action, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third, sixth, seventh, ninth and tenth causes of action are 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]).

Contrary to the Civil Court’s determination, we find that defendant’s cross motion demonstrated its entitlement to summary judgment upon the eighth cause of action. The record establishes that defendant 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]) the denial of claim forms pertaining to the claims at issue in the eighth cause of action and that these claims were denied on the ground of lack of medical necessity based upon affirmed IME reports. As plaintiff failed to rebut defendant’s prima facie showing, defendant was entitled to summary judgment dismissing plaintiff’s eighth cause of action (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

With respect to the portion of the fifth cause of action seeking to recover upon two claim forms, each in the sum of $309.42, we find that plaintiff established its prima facie case (see [*3]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]). Since defendant did not address these two $309.42 claim forms in its motion papers submitted to the Civil Court, defendant failed to rebut plaintiff’s prima facie showing, and the court properly awarded plaintiff summary judgment upon these claim forms.

With respect to the portion of the fifth cause of action which seeks to recover upon the $608.40 claim form for services rendered to the assignor from June 1, 2006 through June 22, 2006, the affidavit of plaintiff’s billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff’s claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff’s motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant’s examiner contained a detailed recitation of defendant’s office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff. Plaintiff did not oppose this branch of defendant’s cross motion or submit further papers in support of its motion for summary judgment upon this claim form. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint as to the $608.40 claim form is granted.

Defendant’s contentions with respect to the fourth cause of action lack merit, and we do not disturb the Civil Court’s determination that defendant was not entitled to summary judgment dismissing this cause of action.

Accordingly, the judgment is affirmed and the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through third and sixth through tenth causes of action and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 17, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 2010 order 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 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment is denied. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (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]), the affirmed letter of medical necessity submitted by plaintiff’s assignor’s treating physician was sufficient to demonstrate that there is a triable issue 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]; cf. 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 judgment of the Civil Court 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., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 (Anna Culley, J.), entered June 14, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 14, 2010 order granting defendant’s 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 granting defendant’s 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]).

The proof submitted by both defendant and plaintiff established that plaintiff’s assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not “regularly reside[]” with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff’s claim (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 this ground. In any [*2]event, even if defendant’s denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Moreover, it is undisputed that plaintiff submitted the claim at issue to defendant more than 45 days after the dates the services were rendered (Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff’s contention, defendant’s timely denial of claim form adequately advised plaintiff of the basis for the denials. The denial of claim form further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Accordingly, the judgment of the Civil Court is affirmed.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 (Lisa S. Ottley, J.), entered February 8, 2010, deemed from a judgment of the same court entered April 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 8, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’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 denying its 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]).

Contrary to plaintiff’s contention, the affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. While plaintiff asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was [*2]inadmissible, the record indicates that the signature was placed on the report by the doctor who had performed the peer review (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. Thus, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly 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]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment of the Civil Court is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 April 1, 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 denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affirmed peer review reports set forth the factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. Thus, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly 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 [*2]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]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order of the Civil Court is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 (Genine D. Edwards, J.), entered January 26, 2010. The order denied 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, defendant’s motion for summary judgment dismissing the complaint was properly denied, as defendant failed to demonstrate that the claim had been timely denied. Defendant’s denial of claim form was not issued within 30 days of receipt of plaintiff’s claim form, and the affidavit of defendant’s claims examiner failed to demonstrate that defendant had tolled its time to pay or deny the claim by timely mailing its request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [a] [1]) in accordance with defendant’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]). As a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v [*2]Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 November 17, 2009. The order granted defendant’s motion to vacate a notice of trial and dismiss the complaint pursuant to CPLR 3126 to the extent of vacating the notice of trial and compelling plaintiff to respond to defendant’s discovery demands.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered November 17, 2009 which granted defendant’s motion to vacate a notice of trial and dismiss the complaint pursuant to CPLR 3126 to the extent of vacating the notice of trial and compelling plaintiff to respond to defendant’s discovery demands. Subsequent to the entry of the November 17, 2009 order, the Civil Court entered an order dismissing the complaint. The dismissal of the complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists [*2]2006]).

Accordingly, the appeal is dismissed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 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 30, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is 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, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion for summary judgment established 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]) the claims at issue on the ground of lack of medical necessity. Defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s [*2]determination that there was a lack of medical necessity for the services rendered (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]). In opposition, plaintiff did not raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (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]).

The purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff’s assignor was injured as documented in her medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary (Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (id.). Thus, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 05, 2012