SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 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.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated October 9, 2009, plaintiffs agreed to serve defendant with verified responses to its written discovery demands within 60 days of the date of the order or be precluded from offering evidence at trial. In January 2010, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiffs were precluded from offering any evidence at trial; and, therefore, that plaintiffs could not establish their prima facie case. In opposition, plaintiffs offered no excuse for their failure to comply with the so-ordered stipulation; rather, plaintiffs stated that they had served defendant with their responses in June [*2]2010. The Civil Court denied defendant’s motion finding that “there exists reasonable excuse for the delay in responding to defendant’s discovery demands i.e. change of attorneys handling this matter and the plaintiff [sic] should not be prejudiced due to changes in counsel.”

A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiffs were required to demonstrate a reasonable excuse for their failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiffs failed to meet this burden. Although the Civil Court found that defendant’s change of attorney constituted a valid excuse, plaintiffs’ opposing affirmation made no reference to any change of attorney nor indicated how any such change of attorney excused its compliance. Accordingly, as the order of preclusion prevents plaintiffs from establishing their prima facie case, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branches of plaintiff’s cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment upon the seven claims at issue in this action. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied plaintiff’s claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion. [*2]

On appeal, defendant argues that its motion to compel plaintiff to produce Dr. Mayard and Dr. Berardi for depositions should have been granted because the motion sought information regarding “treatment” and plaintiff’s “billing practices,” which information is material and necessary to the defense of this action. However, we find that these defenses are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]), and therefore defendant is not entitled to the discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s cross motion, since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant admits that it received plaintiff’s claims seeking the sums of $748.24 and $230.09 on December 16, 2006 and December 29, 2006, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Nor does defendant claim that the EUOs of Drs. Mayard and Berardi were requested, or pending, during that time. We note that defendant’s January 15, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of either of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that these two claims were timely denied and therefore has not established that its defenses as to these two claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to these claims.

However, the record establishes that defendant’s time to pay or deny the remaining claims, seeking the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16, was tolled. The affirmation submitted by defendant’s attorney established that EUO scheduling letters had been mailed in accordance with his law firm’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]). Defendant’s February 13, 2007 request, which scheduled the EUOs for February 28, 2007, was timely with respect to these remaining claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]), as was the March 7, 2007 follow-up request, which rescheduled the EUOs for March 21, 2007, after the doctors had failed to appear for the scheduled February 28, 2007 date (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith).

Defendant raised a triable issue of fact by demonstrating that the doctors had failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of these five remaining claims had been timely denied on April 11, 2007 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since defendant is not precluded from interposing that defense with respect to these claims, the [*3]branches of plaintiff’s cross motion seeking summary judgment with respect to the remaining five claims should have been denied.

In light of the foregoing, the order appealed from is modified by providing that the branches of plaintiff’s cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied.

Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion on the ground that it had timely denied plaintiff’s claims after Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]

Defendant demonstrated that it had properly requested that plaintiff’s principals appear for an EUO, that they failed to appear for scheduled EUOs and that defendant issued a denial of claim form on April 11, 2007, within 30 days after their failure to appear (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith). However, the claims at issue in this case were submitted to defendant after it had issued that denial of claim form, and, thus, the April 11, 2007 denial is ineffective as to these claims (cf. Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant attached denial of claim forms to its opposition to plaintiff’s cross motion which purport to address the claims at issue here, and which appear timely on their face, but defendant failed to submit evidence that it had mailed them. Since defendant failed to prove that it had timely denied the claims at issue, it is precluded from asserting most defenses, including its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011], lv denied 17 NY3d 705 [2011]). Furthermore, defendant is not entitled to the depositions of Dr. Mayard and Dr. Berardi, as it only sought the depositions in order to obtain information regarding “treatment” and plaintiff’s “billing practices,” defenses which we find to be precluded (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant’s motion was properly denied and plaintiff’s cross motion for summary judgment was properly granted.

Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied plaintiff’s claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish that its initial and follow-up EUO requests had been timely mailed.

On appeal, defendant argues that its motion to compel plaintiff to produce Dr. Mayard [*2]and Dr. Berardi for depositions should have been granted because the motion sought information regarding “treatment” and plaintiff’s “billing practices,” which information is material and necessary to the defense of this action. However, we find that these defenses are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007), and therefore defendant is not entitled to the discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s cross motion, since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The affirmation submitted by defendant’s attorney established that the EUO scheduling letters were mailed in accordance with his law firm’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]). Defendant requested the EUOs on February 13, 2007, within 15 days of receipt of the first two claim forms at issue in this case (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). When the doctors failed to appear for the EUOs on the scheduled February 28, 2007 date, defendant mailed a second request on March 7, 2007, rescheduling the EUO for March 21, 2007. While the Civil Court suggested, in the order appealed from, that the follow-up request was premature because it was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), we hold that, when the verification sought is an examination under oath or an independent medical examination, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination.

Defendant demonstrated that the doctors failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of the claims at issue had been denied on April 11, 2007 on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is clear, on this record, that the first two claims at issue, which plaintiff submitted on January 31, 2007, were properly tolled and, ultimately, timely denied by the April 11, 2007 denial of claim form. Since defendant is therefore not precluded from interposing its defense that plaintiff failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), plaintiff’s cross motion for summary judgment should have been denied with respect to these claims.

The next four claims, like the first two, were denied more than 30 days after their receipt. However, they were submitted on February 16, February 22 and March 5, 2007, after the initial EUO request letter had been sent. The issue presented is whether the initial EUO request acted to toll the time to pay or deny these subsequently received claims, or whether defendant was required to take additional action in order to create a toll. The No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon subsequent claims. Under the circumstances [*3]of this case, we find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs. Consequently, the April 11, 2007 denial of claim was timely as to these claims, and defendant raised a triable issue of fact by demonstrating that the defense that plaintiff had failed to comply with a condition precedent to coverage applied to these claims as well, which defense was not precluded.

The last claim at issue in this case was submitted on April 2, 2007 and denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) on the ground that plaintiff, prior to submitting the claim, had failed to appear for an EUO requested by defendant with regard to the same accident and the same assignor. This claim was similarly timely and properly denied, as defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage.

In view of the foregoing, plaintiff’s cross motion for summary judgment is denied. We note that defendant has not sought summary judgment dismissing the claims.
Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 October 30, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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, plaintiff appeals from so much of an order as denied its motion for summary judgment. Because plaintiff failed to establish that the bill in question was not timely denied, or that the denial was conclusory, vague, or without merit as a matter of law, plaintiff failed to establish its prima facie case (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Quality Health Prods. v Country-Wide Ins. Co., 30 Misc 3d 143[A], 2011 NY Slip Op 50328[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Nyack Hosp. v Allstate Ins. Co., 84 AD3d 1331 [2011]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is affirmed.

We decline defendant’s request to search the record and award it summary judgment [*2]dismissing the complaint.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing plaintiff’s third cause of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment dismissing plaintiff’s third cause of action.

In support of its motion for summary judgment, defendant established that it timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. [*2]As the affirmed peer review report annexed to defendant’s motion papers set forth a factual basis and medical rationale for the peer review doctor’s determination that there was a lack of medical necessity for the services at issue, defendant established its prima facie entitlement to summary judgment dismissing plaintiff’s third cause of action (see Delta Diagnostic Radiology, P.C., 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 to defendant’s motion, plaintiff failed to raise a triable issue of fact, as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court’s order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.

Steinhardt, J.P., Pesce and Weston JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 6, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006; as so modified, the order is affirmed, without costs.

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

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT code 97813 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since, with the exception of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, defendant fully paid the amount to which plaintiff was entitled for acupuncture services rendered by plaintiff’s licensed acupuncturist from October 26, 2005 through January 19, 2006, so much of defendant’s cross motion for summary judgment seeking to dismiss the complaint as to these claims is granted.

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, billed under CPT code 99204 (cf. Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant raised no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not reach the propriety of the Civil Court’s determination with respect thereto. Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and denied the branch of defendant’s cross motion seeking summary judgment dismissing this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 April 30, 2010. The order denied plaintiff’s motion for summary judgment.

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 on the ground that defendant’s opposition papers sufficiently rebutted plaintiff’s prima face showing. Although plaintiff established that defendant did not pay its claims, plaintiff failed to show that the claims were not denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168).

Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground. [*2]

Pesce, P.J., and Steinhardt, J., concur.

Rios, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
1 ;1 5& #
PRESENT : PESCE, P.J., RIOS and STEINHARDT, JJ.
1 ;1 5& #
BATH MEDICAL SUPPLY, INC.
as Assignee of IONA ASSEVERO,

Appellant,

-against-

NO. 2010-2140 K C

DECIDED
AUTO ONE INSURANCE COMPANY,

Respondent.
1 ;1 5& #

Rios, J., dissents and votes to reverse the order and grant plaintiff’s motion for summary judgment in the following memorandum:

Plaintiff established its entitlement to summary judgment by proof of the timely submission of its claim to the insurer, setting forth the fact and the amount of the loss sustained, and that defendant had failed to toll their obligation to pay the claim within 30 days. Defendant’s opposition failed to establish the timely mailing of a denial. The affidavit by a “litigation examiner” who commenced employment in October 2004, in my view is insufficient to establish on personal knowledge familiarity with the practices and procedures in place at Auto One when the purported denials were issued in August 2004. Moreover, even were we to accept this claim of extra sensory perception, the affidavit is devoid of any information as to the affixation of postage on the generated denial envelopes. [*3]
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 30, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the October 4, 2005 claim (for services rendered from September 6 through September 29, 2005) is denied; as so modified, 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 granting defendant’s motion for summary judgment dismissing the complaint.

The affidavit of defendant’s litigation representative established that, except for the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff’s October 4, 2005 claim (for services rendered from September 6 through September 29, 2005), defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the billed-for services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted so much of defendant’s motion for summary judgment as sought dismissal of the claims other than plaintiff’s October 4, 2005 claim.

Since defendant failed to establish the timely mailing of the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff’s October 4, 2005 claim, defendant was not entitled to summary judgment upon this claim.

In light of the foregoing, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the October 4, 2005 claim is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010, deemed from a judgment of the same court entered April 26, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 5, 2010 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,455.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition, and the Civil Court, by order entered February 5, 2010, granted plaintiff’s motion.
Thereafter, defendant moved to vacate the February 5, 2010 order, which motion the
court denied, by order dated May 19, 2010, finding that “[t]here was no default in this case.” Defendant appeals from the February 5, 2010 order, which appeal is deemed to be from the subsequently entered judgment (see CPLR 5501 [c]).

“Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion” (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]; see also Astoria Wellness Med., P.C. v State [*2]Farm Mut. Auto. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52008[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, the appeal from the judgment entered pursuant to the default order must be dismissed.

We note that defendant’s remedy, if it be so advised, is to move to reargue the May 19, 2010 order or to file a notice of appeal therefrom.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011