Decided on May 22, 2014

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 29, 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 reversed, with $30 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, plaintiff seeks to recover on a bill for $172.81 and the $27.19 balance of a bill for $55.69. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. At issue is defendant’s application of a $200 deductible to the claims in question.

The affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (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]), that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6), and that defendant had denied the claims at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Plaintiff’s contention that defendant improperly based its motion upon an out-of-state affidavit that was not in compliance with CPLR 2309 (c) was improperly raised for the first time on appeal and, thus, was waived (see Talley v Peck, 23 Misc 3d 141[A], 2009 NY Slip Op 51028[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In any event, defendant’s affidavit which alleged facts concerning the applicability of the deductible was notarized in New York State, and the out-of-state affidavit establishing the proper mailing of the denial of claim forms was accompanied by a proper certificate of conformity (see CPLR 2309 [c]).

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 (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 24, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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 on the ground that it had timely and properly denied the claim at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

Defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). In support of its cross motion, defendant submitted an affirmed report from a peer review doctor and an affidavit from a peer review chiropractor, both of which set forth a factual basis and medical rationale for the determinations that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant’s cross motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether these supplies were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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 (Dawn Jimenez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in favor of plaintiff are vacated, 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 on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted two sworn reports of independent medical examinations (IMEs), each of which set forth a factual basis and medical rationale for the examiner’s determination that there was a lack of medical necessity for the services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the IME reports (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]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in favor of plaintiff are vacated as academic, and 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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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 (Pamela L. Fisher, J.), entered November 30, 2011. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking to compel defendant to produce its Special Investigation Unit file and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands and to produce Dr. John Braun and Vladimir Grinberg for depositions.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking to compel defendant to produce its Special

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking to compel defendant to produce its Special Investigation Unit (SIU) file and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to defendant’s discovery demands and to produce Dr. John Braun and Vladimir Grinberg for depositions.

To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986] see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).

With respect to defendant’s cross motion, plaintiff contends that defendant is not entitled to any discovery regarding whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) because defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was [*2]resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]). Consequently, defendant is not barred from obtaining discovery regarding whether plaintiff is in compliance with applicable state and local licensing laws.

Contrary to plaintiff’s contention, defendant sufficiently demonstrated that defendant’s discovery demands which concerned a Mallela defense are “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a] All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun (see CPLR 3101 [a] All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] see also RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010] Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking to compel defendant to produce its SIU file is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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 (Patricia Anne Williams, J.), entered July 5, 2011. 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, with $30 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 of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s moving papers established that defendant had timely denied the claims at issue (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]) based on a lack of medical necessity. In addition, defendant submitted two affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the determinations that there was no medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been 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

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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 October 25, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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 on the ground that it had timely and properly denied the claim at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supply at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, 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]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, the CPLR 3212 (g) findings in plaintiff’s favor are vacated as academic, and 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]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 22, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered June 20, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate so much of a prior order of the same court (Cheree A. Buggs, J.) entered May 10, 2011 as granted, on default, the branch of a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment dismissing so much of the complaint as sought to recover $13,571.37 from Alea.

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, the Civil Court, by order dated May 10, 2011, granted, on default, a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment (1) dismissing so much of the complaint as was asserted against GAB Robins and (2) dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. Plaintiff subsequently moved to, among other things, vacate so much of that order as granted the branch of the motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. By order dated June 20, 2011, the Civil Court denied plaintiff’s motion.

A claim of law office failure may be accepted as a reasonable excuse for a default where the claim is supported by a “detailed and credible” explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479 [2004]). Conclusory and unsubstantiated claims of law office failure are insufficient (see Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007] Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002]). Here, plaintiff’s attorney alleged only that opposition to the motion had been served upon Alea, and that it was “unknown why the attorney who appeared in court on May 10, 2011 did not have the written opposition.” This statement did not “adequately detail and substantiate the alleged law office failure” (see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]).

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

Weston, J.P., Aliotta and Solomon, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 22, 2014

APPEARANCES OF COUNSEL

Nightingale Law, P.C., Glen Cove (Michael S. Nightingale of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that the action is premature since plaintiff had not responded to its verification requests. The Civil Court denied defendant’s motion, finding that a triable issue of fact existed as to whether the requests had been received by plaintiff.

As a preliminary matter, we note that, contrary to the apparent positions of both parties on appeal, the order appealed from does not limit the issues for trial pursuant to CPLR 3212 (g) (see generally A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 32 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Since a claim need not be paid or denied until all demanded verification is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Here, in support of its motion, defendant made a prima facie showing that it had timely mailed three initial and three follow-up requests for verification to plaintiff, with carbon copies mailed to plaintiff’s attorney, in accordance with its standard mailing practices and procedures (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). This gave rise to a rebuttable presumption that the requests had been received by both plaintiff and its attorney{**44 Misc 3d at 61} (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

It is undisputed that plaintiff did not respond to the requests. However, in opposition to [*2]defendant’s motion, plaintiff submitted an affidavit executed by its owner in which he described plaintiff’s practices and procedures that result in all mail being recorded in plaintiff’s computer system on the date of receipt, as well as being physically filed in the appropriate “patient” file. Plaintiff’s owner stated that he had reviewed the computer file and the physical file for the “patient” at issue, and that plaintiff has no record of having received verification requests for the claims at issue.

For the purpose of determining whether a no-fault insurer’s time to pay or deny a claim has been tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), a request for written verification that the insurer communicates to the applicant by mail is complete upon its delivery to the United States Postal Service (cf. CPLR 2103 [b] [2]). Thus, contrary to the finding of the Civil Court, the operative question in this case is not whether the requests were received by plaintiff, but whether defendant mailed them. Here, by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place.

Defendant correctly asserts that plaintiff did not make a prima facie showing that its attorney had not received the carbon copies of the verification requests that allegedly had been sent to counsel’s office. However, contrary to defendant’s argument, receipt of such letters did not give rise to a duty on the part of plaintiff’s counsel to forward these requests to plaintiff since, on their face, they purport to duplicate letters simultaneously sent to plaintiff (but cf. New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.

[*1]

Blodnick Fazio & Associates, P.C., Garden City (Edward K. Blodnick of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 24, 2012, which granted the motions of defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

Where an amended pleading is submitted in response to a pre-answer motion to dismiss, the provident course of action for the motion court is to include the amended complaint in the record on the pending motion, which should then be granted or denied based on the sufficiency of the amended pleading (see e.g. Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07 [2d ed 2011]).

Here, the amended complaint, like the original complaint, was insufficient to state a cause of action upon which relief could be granted. Plaintiffs asserted that defendant Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements. Allstate plainly has that right (see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Plaintiffs also attempted to assert causes of action against Allstate’s counsel, defendants Robert P. Macchia and Mehmet P. Gokce for undertaking a legitimate investigation at Allstate’s behest. It is well settled that no [*2]such cause of action lies (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept 1976]).

We have considered the plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 33515(U).]