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, Queens County (Judi Orlow, J.), entered March 11, 2010, deemed from a judgment of the same court entered April 2, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 11, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint, awarded defendant the sum of $60.

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. We deem plaintiff’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff’s sole argument on appeal is that defendant did not establish that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). However, a review of the record reveals that the affidavit of defendant’s investigator, who was responsible for conducting the EUOs, established that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). Since an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65—1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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, Queens County (William A. Viscovich, J.), entered February 11, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to strike plaintiff’s notice of trial to the extent of compelling plaintiff to produce certain tax documents.

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 granted defendant’s motion to strike plaintiff’s notice of trial to the extent of compelling plaintiff to produce certain tax documents.

Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). As defendant’s motion papers were sufficient to establish that special circumstances exist which warrant disclosure of plaintiff’s tax documents at issue (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]), the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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 2, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied the motion and cross motion, and found that 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 the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that such supplies were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s cross motion for summary judgment dismissing the complaint 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., Weston and Rios, JJ., concur. [*2]
Decision Date: October 26, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a trial ruling of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), dated August 24, 2009. The trial ruling granted the oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C., for a directed verdict in their favor.

ORDERED that the appeal is dismissed.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. Insofar as is relevant to this appeal, the action concerned a $3,119.44 claim of South Bronx Medical, P.C., which defendant had denied on the ground that there was a lack of medical necessity for the services rendered based upon the finding of a peer review report, and claims, totaling $6,500.12, of Altercare Acupuncture, P.C., which defendant had denied on the ground that improper fees had been charged. A nonjury trial was held and, before defendant had rested, the Civil Court granted an oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C. for a directed verdict in their favor. This appeal by defendant ensued.

An oral ruling at trial, even if memorialized into a writing, is not appealable, either as of right or by permission, unless it is incorporated into an order or judgment (see generally CCA 1702; CPLR 5512; Radford v Sheridan Prods., 181 AD2d 667 [1992]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 25, 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 February 2, 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 appeals from an order denying its motion for summary judgment dismissing the complaint.

A review of the record indicates that defendant established its prima facie entitlement to summary judgment by the affidavit of the claims representative of its third-party administrator in which she stated that the subject vehicle was not insured by defendant until three weeks after the July 15, 2002 accident. The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, plaintiff argued that, within 14 days of the July 11, 2002 purchase of the subject vehicle, the owner directed his insurance broker, allegedly defendant’s agent, to have the vehicle added to the owner’s existing insurance policy that he had with defendant, which notification was a condition precedent to defendant insuring the vehicle, retroactive to the date of purchase, as a newly acquired automobile under the existing policy. In addition, plaintiff’s opposition papers included defendant’s own “Auto Policy Declaration” for the vehicle’s owner, which lists the insurance broker as “Agency 11868.” The foregoing creates an issue of fact as to whether the broker had “a general authority” (Indian Country v Pennsylvania Lumbermens Mut. Ins. Co., 284 AD2d 712, 714-715 [2001]) to represent defendant (see Rendeiro v State-Wide Ins. Co., 8 AD3d 253 [2004]). Consequently, defendant’s motion for summary judgment was properly denied.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: October 25, 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 (Margaret A. Pui Yee Chan, J.), entered March 10, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and, in effect, denied as academic plaintiff’s cross motion to amend the caption and for discovery.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Civil Court for a determination of plaintiff’s cross motion to amend the caption and for discovery, and for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that a declaratory judgment, entered on default prior to the commencement of this action, barred plaintiff and its assignor from recovering no-fault benefits for claims arising from a series of automobile incidents which, the Supreme Court concluded, were staged to defraud defendant. Plaintiff cross-moved to amend the caption and for discovery. The Civil Court granted defendant’s motion to dismiss the complaint and implicitly denied plaintiff’s cross motion as academic.

The claims underlying the present action are based on services provided to a person alleged to have been injured in an automobile incident on February 7, 2003, which is not among the incidents listed in the declaratory judgment as having been staged to defraud. Defendant did not deny that it issued denial of claim forms, in relation to the bills at issue herein, which recite that the underlying incident occurred on February 7, 2003. Consequently, defendant’s motion for summary judgment should have been denied as defendant’s motion papers failed to establish, prima facie, that this action is barred by virtue of the declaratory judgment.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Civil Court for a determination of plaintiff’s cross motion and for all further proceedings.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: October 25, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 1, 2010. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for an order of preclusion and for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for an order of preclusion and for summary judgment, and denied defendant’s cross motion for summary judgment dismissing the complaint. Both parties appeal.

As defendant served discovery responses less than one week later than required by a so-ordered discovery stipulation, we find, under the totality of the circumstances presented, that the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from offering evidence in this matter and in denying the branch of plaintiff’s motion seeking summary judgment (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2007]).

With respect to defendant’s cross motion for summary judgment dismissing the complaint, we find that defendant demonstrated that its claim denial forms were 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 to the claims for $341.34, $195.50 and $795, defendant submitted an affirmed peer review report which [*2]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 was not rebutted by plaintiff. Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted as to these claims (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]).

The papers submitted in support of defendant’s cross motion indicate that, while plaintiff’s claim for $178 was not submitted within 45 days of the provision of the equipment at issue, plaintiff offered an explanation for the claim’s untimeliness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), and there is an issue of fact as to the reasonableness of that explanation (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant’s cross motion for summary judgment was properly denied as to this claim.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing the claims in the amounts of $341.34, $195.50 and $795.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated October 8, 2009, deemed from a judgment of the same court entered February 11, 2010 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

After the trial of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for a directed verdict and dismissed the complaint. The court found that plaintiff had not established that the claim at issue was overdue, as the testimony of plaintiff’s witness was not based upon personal knowledge. We agree. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 18, 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, Queens County (Diane A. Lebedeff, J.), entered November 2, 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, 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 services 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 services at issue. The affirmation from plaintiff’s doctor failed to meaningfully refer to, let alone 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 light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claim, a finding which plaintiff does not dispute, defendant’s cross motion for summary judgment dismissing the complaint should have [*2]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., Rios and Steinhardt, JJ., concur.
Decision Date: October 18, 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 (Alan Lebowitz, J.H.O.), dated October 22, 2009. The order, insofar as appealed from, conditionally granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branch of defendant’s motion seeking to dismiss the complaint, pursuant to CPLR 3126, to the extent of granting defendant’s motion to dismiss the complaint if plaintiff failed to respond to defendant’s discovery demands within 45 days and produce its owner for an examination before trial within 60 days.

CPLR 3101 (a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Pursuant to CPLR 3124, the court may grant an order compelling discovery and “a trial court is given broad discretion to oversee the discovery process” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see also Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Absent an improvident exercise of that discretion, the court’s determination will not be disturbed on appeal (see Matter of US Pioneer Elecs. Corp. [Nikko Elec. Corp. of Amer.], 47 NY2d 914, 916 [1979]; Gillen v Utica First Ins. Co., 41 AD3d 647). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion. Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 18, 2011