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 S. Garson, J.), entered September 3, 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, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that it had timely denied plaintiff’s claim based upon the failure of plaintiff’s owner to appear for an examination under oath (EUO). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion for summary judgment, finding that defendant’s EUO scheduling letters were insufficient.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form were timely mailed in accordance with its 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 also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). [*2]Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; 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]). Furthermore, contrary to the Civil Court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). 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.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 (Noach Dear, J.), entered June 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 granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on October 6, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims; as so modified, the order is affirmed, without 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, arguing that it had properly reimbursed plaintiff for the acupuncture services it had rendered, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services as those billed for herein. The Civil Court granted plaintiff’s motion, stating that defendant had failed to submit the applicable fee schedule to the court.

We find that the workers’ compensation fee schedule, which is required by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers’ [*2]Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Furthermore, the affidavit of defendant’s claims division employee was sufficient to establish that defendant’s denial of claim forms, which partially denied plaintiff’s claims pursuant to the fee schedule, 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]). Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $160.56 for the initial acupuncture visit on October 6, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Medical, 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]). 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 which denied defendant’s cross motion insofar as it sought summary judgment dismissing the complaint as to 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 $160.56 for the initial acupuncture visit on October 6, 2005 and is otherwise denied, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 July 9, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, are denied and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of dismissing the complaint as to the claims for services rendered July 18, 2006 through July 27, 2006, August 14, 2006 through August 22, 2006, August 29, 2006 through September 11, 2006, September 12, 2006 through September 25, 2006, and September 27, 2006 through October 4, 2006; as so modified, 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant alleged that it had properly reimbursed plaintiff for the acupuncture services it had rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services billed for herein, and that, based upon two peer [*2]review reports, it had denied reimbursement for the claims for services rendered between August 14, 2006 and September 11, 2006 due to a lack of medical necessity. By order entered July 9, 2009, insofar as appealed from, the Civil Court granted the branches of plaintiff’s motion as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, because defendant did not submit the workers’ compensation fee schedule to the court, and denied defendant’s cross motion in its entirety, finding that there was a triable issue of fact as to the medical necessity of the services rendered between September 12, 2006 and October 4, 2006.

On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted. We note, at the outset, that plaintiff admitted in its motion for summary judgment that defendant had issued timely partial payments and denial of claim forms. Since plaintiff failed to demonstrate that the denials were conclusory, vague or without merit as a matter of law, plaintiff’s motion for summary judgment should have been denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between July 18, 2006 and July 27, 2006, and between September 12, 2006 and October 4, 2006, in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

Defendant failed to establish why it changed the fee schedule treatment code for several of the services rendered between July 5, 2006 and July 17, 2006, and between July 28, 2006 and August 10, 2006. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims were properly denied.

The claims for services rendered between August 14, 2006 and September 11, 2006 were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed peer review reports, as well as affidavits executed by the acupuncturists who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for those services. Contrary to plaintiff’s assertion on appeal, plaintiff did not submit opposition to defendant’s cross motion, nor was there any admissible evidence in the record establishing the medical necessity of these services in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [*3][App Term, 2d & 11th Jud Dists 2007]).

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment as to the claims for services rendered between July 5, 2006 and August 10, 2006, and between September 12, 2006 and October 4, 2006, are denied and defendant’s cross motion for summary judgment dismissing the complaint is granted only to the extent of dismissing the complaint as to the claims for services rendered July 18, 2006 through July 27, 2006, August 14, 2006 through August 22, 2006, August 29, 2006 through September 11, 2006, September 12, 2006 through September 25, 2006, and September 27, 2006 through October 4, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 July 9, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006 are 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant alleged that it had properly reimbursed plaintiff for the acupuncture services it had rendered between November 17, 2005 and January 19, 2006, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services billed for herein, and that, based upon an independent medical examination, it had denied reimbursement for the claims for services rendered between January 23, 2006 and March 9, 2006 due to a lack of medical necessity. By order entered July 9, 2009, insofar as appealed from, the Civil Court granted the branches of plaintiff’s motion as to the claims for services rendered between November 17, 2005 and January 19, 2006, because defendant did not submit the workers’ compensation fee schedule to the court, and denied defendant’s cross motion in its entirety, finding that there was a triable issue of fact as to the medical necessity of the services rendered [*2]between January 23, 2006 and March 9, 2006.

On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted. We note, at the outset, that plaintiff admitted in its motion for summary judgment that defendant had issued timely partial payments and denial of claim forms. Since plaintiff failed to demonstrate that the denials were conclusory, vague or without merit as a matter of law, plaintiff’s motion for summary judgment should have been denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

We find that the workers’ compensation fee schedule, which is mandated by law (see Workers’ Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is “of sufficient authenticity and reliability that it may be given judicial notice” (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between November 17, 2005 and January 19, 2006 in accordance with the Official New York Workers’ Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is noted that defendant’s submissions also demonstrate that services billed under former fee schedule treatment code 97780, which at the time the services were rendered should have been billed under the new fee schedule treatment code, 97810, were properly re-coded accordingly. Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

The claims for services rendered between January 23, 2006 and March 9, 2006, were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed a report written by the acupuncturist who had performed an independent medical examination (IME), as well as the acupuncturist’s affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for any services rendered after the IME took place, including these services. Contrary to plaintiff’s assertion on appeal, plaintiff did not submit opposition to defendant’s cross motion, nor was there any admissible evidence in the record establishing the medical necessity of the services rendered in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint as to the claims for these services are granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

In light of the foregoing, the order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment as to claims for services rendered between November 17, 2005 and January 19, 2006 are denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 S. Garson, J.), entered August 18, 2009. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. By order entered August 18, 2009, insofar as appealed from, the Civil Court denied plaintiffs’ motion for summary judgment.

Defendant established that the denial of claim forms, which denied plaintiffs’ claims on the grounds of lack of medical necessity and that payment had been made in accordance with the workers’ compensation fee schedule, 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]). Inasmuch as plaintiffs failed to show that the grounds for the denials were conclusory, vague or without merit as a matter of law, plaintiffs failed to make a prima facie showing of their entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 S. Garson, J.), entered June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the complaint as to the claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 are granted; 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 for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Plaintiff did not submit opposition papers. The Civil Court denied defendant’s motion, finding that the exhibits annexed to defendant’s moving papers “raise[d] triable issues of fact.”

In support of its motion, defendant submitted an affidavit of the president of an independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with the standard office practices and procedures for the generation and mailing of such IME notices (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]). Also annexed as exhibits were copies of the IME scheduling notices. In addition, defendant submitted an affidavit from the medical professional who was to [*2]perform the IMEs establishing that plaintiff’s assignor had failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Also included among defendant’s moving papers was an affidavit from its claims examiner, which set forth defendant’s standard office practices and procedures for mailing denial of claim forms. Among other things, he stated that, pursuant to defendant’s standard office practices and procedures, denial of claims forms are mailed on the date they are generated. However, with respect to plaintiff’s claim for services rendered between July 5, 2006 and July 31, 2006, while the denial of claim form pertaining to this claim is dated August 23, 2006, defendant’s claims examiner averred that it was mailed on September 26, 2006. As a result, there is an issue of fact with respect to defendant’s mailing of this denial of claim form (see Zuckerman v City of New York, 49 NY2d 557 [1980]). With respect to the remaining claims at issue, defendant’s claim examiner established that defendant’s denial of claim forms, which denied these claims based upon plaintiff’s assignor’s failure to appear for the IMEs, had been timely mailed in accordance with 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).

In light of the foregoing, defendant established its prima facie entitlement to judgment as a matter of law only with respect to plaintiff’s claims for services rendered between August 4, 2006 and August 31, 2006, between September 5, 2006 and September 25, 2006, and between October 12, 2006 and October 23, 2006 (see St. Vincent Med. Care, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 127[A], 2010 NY Slip Op 51728[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and summary judgment is awarded in favor of defendant accordingly.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 September 17, 2009, deemed from a judgment of the same court entered September 28, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 17, 2009 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs). Plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted an affidavit of a manager employed by the company retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed pursuant to the affiant’s employer’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 also submitted an affidavit of the chiropractor who was to perform the IMEs 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]). The appearance of the assignor at an IME 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 721). Consequently, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 (Genine D. Edwards), entered June 18, 2009. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss 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 moved to dismiss the complaint due to plaintiff’s failure to respond to defendant’s discovery requests. By order entered July 16, 2008, the Civil Court granted defendant’s motion to the extent of directing plaintiff to provide verified responses to defendant’s discovery demands within 60 days or be precluded from offering evidence at trial. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint on the ground that plaintiff had failed to comply with the July 16, 2008 order. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint.

Plaintiff failed to serve responses to the demands within the 60-day period provided for in the Civil Court’s order of July 16, 2008. Moreover, the responses which plaintiff served after defendant had made its cross motion were incomplete. A conditional order of preclusion becomes absolute upon a party’s failure to timely and sufficiently comply therewith (see 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]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the order and the existence of a meritorious cause of action (see Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 [*2]AD3d at 908). Plaintiff failed to meet this burden. As the preclusion order became absolute, plaintiff is unable to offer any evidence at trial in this action. Consequently, the Civil Court properly granted defendant’s cross motion to dismiss the complaint.

Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 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 (Noach Dear, J.), entered May 21, 2009. The order granted 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 denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, finding that defendant had established that the claims were not submitted within 45 days after the services had been rendered.

Contrary to plaintiff’s contention, the affidavit of defendant’s no-fault specialist sufficiently established that the denial of claim forms, which denied plaintiff’s claims on the ground that they had been submitted more than 45 days after the services at issue had been rendered (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), 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]). However, as defendant did not demonstrate that its denial of claim forms advised plaintiff that late submission of the proofs of claim would be excused if plaintiff could provide a reasonable justification for the late submissions (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Delta Diagnostic Radiology, P.C. v [*2]Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]).

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

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 11, 2011

APPEARANCES OF COUNSEL

Law Office of Michael S. Nightingale, Glen Cove (Bryan G. Melnick of counsel), for respondent. Gary Tsirelman, P.C., Brooklyn, for appellant.

{**34 Misc 3d at 22} OPINION OF THE COURT

Memorandum.

Ordered that the order is reversed, without costs, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that plaintiff was precluded from litigating its entitlement to first-party no-fault benefits since a prior claim by another provider involving plaintiff’s assignor arising out of the same accident, which claim had been denied by defendant based on a lack of coverage, had already been considered in an arbitration proceeding and had resulted in an award denying reimbursement of no-fault benefits to the claimant therein. Consequently, defendant argued, the complaint should be dismissed without prejudice to plaintiff’s pursuing the matter in arbitration. In the alternative, defendant contended that the action should be dismissed with prejudice on the ground that plaintiff’s assignor had not been involved in the motor vehicle accident in question. The Civil Court, citing Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), granted defendant’s motion to the extent of dismissing the complaint without prejudice to plaintiff’s pursuing reimbursement of no-fault benefits in an arbitration proceeding. This appeal by plaintiff ensued.

In Roggio, the Court of Appeals held that a claimant who elected to arbitrate disputed [*2]claims for first-party no-fault{**34 Misc 3d at 23} benefits waived the right to commence an action to litigate subsequent claims arising from the same accident (see also Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). However, a prior arbitration proceeding involving a different claimant provider does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even though the claims may arise from the same accident (see A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

“Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits . . . Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action” (id. at 23).

Since plaintiff was not involved in the prior arbitration proceeding, and since there was no showing of privity between plaintiff and the provider who was a party to that proceeding, plaintiff was not barred from commencing the instant action, and it was error for the Civil Court to dismiss the complaint without prejudice to plaintiff’s pursuing the matter in arbitration.

With respect to defendant’s alternative ground for dismissal, we find that defendant did not establish its prima facie entitlement to summary judgment based on its lack of coverage defense “premised on the fact or founded belief that the alleged injury does not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), as the proof offered in support of this branch of its motion seeking summary judgment was not in admissible form (see LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant’s motion should have been denied in its entirety.

Accordingly, the order is reversed, defendant’s motion to dismiss the complaint is denied, and the complaint is reinstated.

Steinhardt, J. (dissenting and voting to affirm the order in the following memorandum). Although I am in full agreement{**34 Misc 3d at 24} with the majority that plaintiff is not limited as to the choice of forum (A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [2005]), I would affirm the order because I believe plaintiff’s case should be dismissed with prejudice. The dismissal by the arbitrator in the prior proceeding involving the assignor herein should be binding on this court. It was previously determined that Klever Guaman was not present in the motor vehicle at the time and place of the accident that allegedly caused his injuries. The police report submitted in support of defendant’s motion clearly indicates that the only people present in the respective vehicles were the drivers. In other words, Guaman’s claim of being in the passenger seat of the car being driven by Joffre Gonzalez is belied by the police officer’s observation at the scene. Were the police officer to testify, that portion of the report would be admissible. The arrest report, wherein Guaman admits that he was not involved in the accident for which a provider sought to recover no-fault benefits, is, in this [*3]writer’s opinion, an admission against interest and, therefore, admissible evidence that may be considered on a motion for summary judgment. I would dismiss plaintiff’s complaint on the theory that the assignor is a person not entitled to recover.

Pesce, P.J., and Rios, J., concur; Steinhardt, J., dissents in a separate memorandum.