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 27, 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.

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied the claim at issue, on the ground of lack of medical necessity, 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]). Moreover, 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 determination that there was a lack of medical necessity for the supplies provided (see e.g. 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 to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not 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]). While plaintiff asserted that the peer review report [*2]contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction (see Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51540[U] [App Term, 2d & 11th Jud Dists 2008]; Radiology Today, P.C. v GEICO Ins. Co., 20 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Thus, the Civil Court properly granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiff’s motion for summary judgment.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 17, 2010. The judgment, entered pursuant to so much of an order of the same court entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment, awarded plaintiff the principal sum of $7,716.62.

ORDERED that the judgment is reversed, without costs, so much of the order entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, pursuant to a so-ordered stipulation, defendant was required to serve responses to plaintiff’s interrogatories by a specified date or “be precluded from offering evidence in this action.”

It is undisputed that defendant failed to timely serve responses to plaintiff’s interrogatories. Subsequently, plaintiff moved for an order precluding defendant and for summary judgment. By order entered February 23, 2010, the Civil Court granted plaintiff’s motion, on the ground that since defendant was precluded from offering evidence, defendant could not rebut plaintiff’s entitlement to summary judgment. Defendant appeals from the judgment entered pursuant to the February 23, 2010 order.

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’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 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). As a result, defendant is precluded from offering evidence in this action. However, plaintiff was not entitled to summary judgment because its moving papers failed to establish a prima facie entitlement to such relief (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 15 Misc 3d 128[A], 2007 NY Slip Op 50602[U] [App Term, 2d & 11th Jud [*2]Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 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 (Reginald A. Boddie, J.), entered May 27, 2010. 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals 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, an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

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. [*2]

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 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 (Katherine A. Levine, J.), entered March 23, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

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. The Civil Court found that plaintiff had established its prima facie case and that the only issue for trial was defendant’s defense that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs).

The affidavit submitted by defendant’s claims representative was insufficient to establish that the denial of claim form, which denied the claim based upon the assignor’s failure to appear for IMEs, had been timely mailed 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, the defense that the assignor failed to appear for scheduled IMEs is precluded. As defendant has not challenged the Civil Court’s finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff’s motion for summary judgment is granted (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for the calculation of statutory
interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 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 (Kenneth P. Sherman, J.), entered March 30, 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 reversed, without costs, plaintiff’s motion for summary judgment is denied 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 an order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant. 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, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who stated 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 from its counsel, which affirmation failed to raise a triable issue of [*2]fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we reach no other issue.

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

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 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 (Kenneth P. Sherman, J.), entered November 24, 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 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 as denied its cross motion for summary judgment.

Although defendant denied the claims on the ground that plaintiff’s assignor had failed to attend scheduled independent medical examinations (IMEs), the affidavits submitted by defendant were insufficient to establish the proper mailing of the IME scheduling letters (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 was not entitled to summary judgment dismissing the complaint.

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

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 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 (Kathryn E. Freed, J.), entered December 4, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and denied 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, plaintiff appeals from an order which granted defendant’s motion for summary judgment dismissing the complaint as premature, based upon outstanding verification requests, and denied plaintiff’s cross motion for summary judgment.

The affidavit of defendant’s litigation representative submitted in support of defendant’s motion for summary judgment was sufficient to establish that defendant had timely mailed requests and follow-up requests for verification 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]). Since plaintiff did not respond to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the action as premature was properly granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated January 29, 2009, deemed from a judgment of the same court entered April 19, 2010 (see CPLR 5520 [c]). The judgment, after a nonjury trial, 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, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on December 23, 1999 were medically necessary. After a nonjury trial, the District Court issued a decision awarding judgment in defendant’s favor. Plaintiff appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

At trial, defendant’s doctor testified that, in his opinion, the medical services provided by plaintiff were not medically necessary. His peer review report concluding that there was a lack of medical necessity was also entered into evidence. This evidence was sufficient to establish that the services rendered were not medically necessary. Plaintiff called no witnesses in rebuttal. [*2]In view of the foregoing, the judgment dismissing the complaint is affirmed (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 08, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 11, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 11, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie its proper mailing of the notices of the independent medical examinations (IMEs) and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 06, 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 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 denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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.

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant established that its denial of claim forms were 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]). With regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant’s claims examiner stated in his affidavit submitted in opposition to plaintiff’s motion that he had denied this claim based upon the failure [*2]of plaintiff’s assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff’s assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant’s belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule, we find that an issue of fact exists with respect thereto (see 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]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant denied plaintiff’s claim dated September 11, 2006 based upon plaintiff’s assignor’s failure to appear for duly scheduled IMEs. Defendant demonstrated that it had timely mailed the IME requests, through the submission of an affidavit of an employee of the entity which scheduled the IMEs on behalf of defendant, who stated that she had personally mailed the IME requests on particular dates (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit and an affirmation, both of which were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant was entitled to summary judgment dismissing this claim (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 05, 2011