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 August 27, 2009. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D
Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on June 27, 2007 (CCA 400). As the six-year statute of limitations for contract actions applies to the claims involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), the statute of limitations bars any claim that accrued prior to June 27, 2001.

In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant’s receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and [*2]must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant’s dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.

As the earliest date defendant could have received the $1,707.97 bill was June 6, 2001 and the earliest date that benefits could have become overdue with respect to this bill was July 7, 2001, we find that defendant failed to meet its burden of establishing, prima facie, that the time in which to sue has expired.

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

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 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, Queens County (Diane A. Lebedeff, J.), entered June 30, 2009. The order, insofar as appealed from, in effect, 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. Defendant cross-moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Allegiance Health, Inc. (Allegiance). The Civil Court, in effect, denied both the motion and the cross motion. 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 an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance’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/acupuncturist who was to perform the IMEs, which was 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]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff’s assignor’s nonappearance at 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). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly [*2]denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]). Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of our determination, we need not reach the remaining contentions raised on appeal.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 16, 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 November 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered November 10, 2010, 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 that it properly mailed initial and follow-up notices of independent medical examinations (IMEs) to the assignor and her attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [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 IME requests or the assignor’s failure to attend (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).

We have examined plaintiff’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 14, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 20, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 20, 2010, insofar as appealed from, reversed, with $10 costs, defendant’s motion for summary judgment granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action by plaintiff to recover assigned first-party no-fault benefits, defendant’s submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 09, 2011

[*1]

District Court of Nassau County, First District, September 8, 2011

APPEARANCES OF COUNSEL

Marshall & Marshall, Jericho, for defendant. Friedman, Harfenist, Kraut & Perlstein, Lake Success, for plaintiff.

{**33 Misc 3d at 574} OPINION OF THE COURT

Michael A. Ciaffa, J.

Defendant moves for summary judgment dismissing plaintiff’s no-fault action based upon the reports of its peer review doctor, William A. Ross, M.D. Plaintiff opposes the motion and cross-moves for an order compelling defendant to respond to plaintiff’s outstanding interrogatories and requests for discovery.

The issues presented in this case involve an increasingly common practice by no-fault insurers: moving for summary judgment based upon “naked” peer review reports. The reports in question fail to attach copies of the medical records which purportedly provide the factual basis for the peer doctor’s opinion, contesting the medical necessity of three MRIs. Although a defendant need not necessarily submit those records in order to make a prima facie showing on a lack of medical necessity defense (see Active Imaging, P.C. v Progressive Northeastern Ins. Co., 29 Misc 3d 130[A], 2010 NY Slip Op 51842[U] [App Term, 2d Dept 2010]), the opponent can certainly make use of such records in challenging whether the peer doctor’s opinion has a sufficient “factual basis and medical rationale.” (See Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 31 Misc 3d 1205[A], 2011 NY Slip Op 50500[U] [Nassau Dist Ct 2011, Ciaffa, J.].) Before the opponent can do so, however, it must first obtain the records. If the records are not records belonging to the provider suing for payment, the records typically are obtainable through discovery. Insurers can and should provide them routinely, upon request. But as this case illustrates, otherwise “routine” requests for discovery are sometimes ignored for many months, with the absence of production coming to a head only when the insurer seeks to have the plaintiff’s case dismissed upon a motion for summary judgment. [*2]

Plaintiff, here, avers that it sought such discovery from defendant more than a year ago, and that it needs to obtain copies of the medical records referenced in the peer doctor’s reports in order to interpose “complete and proper opposition papers.”{**33 Misc 3d at 575} Since plaintiff is a diagnostic facility, its attorneys state that plaintiff is not in possession of the treating doctors’ records. They assert that defendant’s peer review doctor “relied upon approximately 19 different documents when making his determination.” The documents in question include an initial examination report, and a follow-up report from the nonparty treating doctors. Importantly, the latter records appear to provide the factual predicate for the peer doctor’s opinions that certain MRIs performed by plaintiff lacked medical necessity. Furthermore, it appears that the subject tests were ordered by the treating doctors, not the plaintiff, and that the tests were simply performed by plaintiff in reliance upon the treating doctors’ referrals. Counsel for plaintiff goes on to argue: “Without these records, [plaintiff] is unable to . . . determine whether statements made by Dr. Ross are belied by the underlying medical records, or . . . submit the medical records to its own medical expert in order to obtain a rebuttal affidavit on the issue of medical necessity.”

In the instant case, the facts and circumstances at bar clearly warrant giving plaintiff an opportunity to obtain the underlying records that the peer review doctor reviewed. As permitted by CPLR 3212 (f), the court has discretion to deny a defendant’s motion for summary judgment, or to order a continuance to permit plaintiff to pursue disclosure of underlying medical records, when a defendant moves for summary judgment upon a “naked” peer review report that appears to rely heavily upon the content of such records. (See e.g. Total Equip., LLC v State Farm, Nassau Dist Ct, May 31, 2011, Ciaffa, J., index No. 18745/10; Brownsville Advance Med., P.C. v Maya Ins. Co., Nassau Dist Ct, May 25, 2011, Hirsh, J., index No. 15326/10.)

Based upon the court’s experience deciding countless no-fault summary judgment motions and trials, the court has every reason to believe that allowing discovery of the treating doctors’ medical records might “lead to relevant evidence” that may justify opposition to defendant’s motion. (See CPLR 3212 [f].) The outcome of such matters most often turn upon the persuasiveness of the expert opinions and testimony of peer review doctors, when judged in the context of the underlying medical records. Attorneys practicing in the no-fault field know all too well that attacks upon a peer doctor’s opinion frequently depend upon close analysis of the treating doctors’ medical records. Indeed, as this court noted in Novacare Med. P.C. v Travelers{**33 Misc 3d at 576} Prop. Cas. Ins. Co. (at *5), “[i]f the plaintiff can demonstrate, through references to the medical records . . . , that the peer review doctor’s opinion lacks a sufficient ‘factual basis’ and/or ‘medical rationale’ because . . . it fails to address essential factual issues or is based upon disputed or apparently [*3]incorrect facts,” the defendant’s motion can be defeated without the need to obtain opposing expert proof. (Id.)

However, a plaintiff cannot make such an attack without the underlying medical records. Unlike no-fault matters brought by treating doctors, diagnostic facilities (like plaintiff) typically lack “personal knowledge” of the facts which establish (or contradict) the medical necessity of the tests in issue. Consequently, such diagnostic facilities are presumptively entitled to the benefit of CPLR 3212 (f) on the theory that “facts essential to justify opposition . . . [are] exclusively within the knowledge and control” of the nonparty treating physicians and the defendant’s peer review doctor. (See Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814, 815, 816 [2d Dept 2009] [rejecting argument that summary judgment motion was premature where opposing party “already had personal knowledge of the relevant facts”].)

Finally, unlike the circumstances presented in Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. (30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 2d Dept 2010]), plaintiff’s counsel demonstrated both the need for such discovery, and that plaintiff requested discovery from defendant back in May 2010, long before defendant made the instant summary judgment motion. It is undisputed that defendant failed to respond to plaintiff’s discovery requests when they were made. Although defendant could have belatedly produced the documents in responding to the cross motion, defendant did not do so. Nor did it seek to excuse its inaction when the failure was raised in plaintiff’s cross motion papers. Instead, defendant merely argues that service of its motion gave rise to an automatic stay of disclosure pursuant to CPLR 3214 (b). While defendant is technically correct with respect to the latter point, the same statute allows the court to “order[ ] otherwise.” CPLR 3212 (f) likewise authorizes court-ordered disclosure where it appears from opposing papers that “facts essential to justify opposition may exist but cannot then be stated.” This is such a case.

In conclusion, to move the matter forward, plaintiff’s cross motion is granted to the extent of directing defendant to provide{**33 Misc 3d at 577} plaintiff’s counsel with copies of the reports and documents reviewed by defendant’s peer review doctor within 30 days of the date of this order. Within 30 days thereafter, defendant may re-notice its summary judgment motion, upon proper notice, allowing plaintiff at least 30 days time to oppose. The re-noticed motion, plaintiff’s opposition, and defendant’s reply (if any) can then be heard and determined on the merits.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), dated November 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), dated November 12, 2010, insofar as appealed from, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of the information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]). In support of its motion for summary judgment, defendant established that its initial and follow-up verification letters were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). It being undisputed on the record that plaintiff failed to respond to defendant’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

In opposition, plaintiff’s conclusory denial of receipt of the initial verification letter was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d at 829-830; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1004 [1991]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: August 31, 2011

Civil Court of the City of New York, Kings County

089993/09

Michael Weaver, Esq.

Bruno, Gerbino & Soriano, LLP

Attorneys for Defendant

445 Broad Hollow Road, Suite 220

Melville, NY 11747

631-390-0010

Law Offices of Melissa Betancourt, P.C.

Attorney for Plaintiff

155 Kings Highway, 3rd Floor

Brooklyn, New York 11223

718-336-8076

Lisa S. Ottley, J.

This action was commenced by the Plaintiff seeking payment of no-fault party benefits for services rendered on behalf of Sara Mounier pursuant to CPLR 5106(a) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.).

Defendant moves for an order pursuant to CPLR §3025(b), for leave to amend its Verified Answer, and upon this court granting defendant leave to amend its answer, for dismissal of the complaint pursuant to CPLR §3211(a) 5, under the doctrines of res judicata and collateral estoppel.

Discussion

Leave to amend a pleading pursuant to CPLR 3025(b) should be granted where there is no significant prejudice or surprise to the opposing party and where the proof submitted in support of the motion indicates that the amendment may have merit. See, Edenwald Contr. Co. v. City of New York, 60 NY2d 957 [1983].

Based upon the documents submitted in support of its motion for leave to amend its Verified Answer, the court hereby grants defendant’s motion to amend its Verified Answer. See, Uptodate Medical Service, P.C., v. State Farm Mutual Automobile Insurance Company , 22 Misc 3d 128(A), 880 N.Y.S.2d 227 (AT 2nd, 11th & 13th Judicial Dists., 2009).

Next, this court will address the issue as to whether defendant is entitled to dismissal of the action on the grounds of res judicata and collateral estoppel.

In the case at bar, the defendant-insurer brought an action in Supreme Court, Nassau County, seeking declaratory relief by the filing of a Summons and Complaint which the court deemed to have been duly served upon all the defendants named within the action, which failed to appear and/or interpose or serve an answer in the action. [See, Exh. “A” annexed to defendant’s moving papers herein]. By notice of motion, the defendant herein, and the plaintiff in the Supreme Court action moved pursuant to CPLR § 3215 for an order and judgment granting plaintiff the relief sought upon default, which was granted by the Hon. Anthony L. Parga, on October 1, 2010.

The defendant moves for dismissal of this action for payment of no-fault benefits [*2]on the grounds of res judicata and collateral estoppel, inasmuch as the declaratory judgment held that no coverage existed due to the fact the loss resulted from a staged accident.

Plaintiff argues, that a declaratory judgment granted on default does not have preclusive effect, and therefore, collateral estoppel does not preclude a party from litigating the action.

Although there is case law in support of plaintiff’s argument, the cases in support of plaintiff’s argument are distinguishable from this case. As argued by defendant, in Magic Recovery Med & Surgical Supply, Inc. v. State Farm Mutual Auto Insurance Company, 27 Misc 3d 67, 901 N.Y.S.2d 774 (AT 2nd, 11 & 13th Jud. Dists., 2010), the insurance company failed to name the party in the declaratory action, therefore, the res judicata and collateral estoppel could not be granted. In EMA Acupuncture, P.C. v. Lumbermens Mutual Casualty Company, 27 Misc 3d 141, 911 N.Y.S.2d 692 (AT 2nd, 11 & 13th Jud. Dists., 2010), which was not the basis of a default declaratory judgment, but was based on whether an Order issued on default pursuant to CPLR §3216 which fails to specify whether the dismissal is with prejudice or on the merits, has a preclusive effect.

Recently, this Court in a decision by the Hon. Devin P. Cohen, denied defendant’s motion to dismiss on the ground of collateral estoppel. As in this case, the motion raised the question of the effect of a declaratory judgment order, issued on default with respect to collateral actions seeking to litigate the same issue. Judge Cohen provides a detailed analysis of the applicable law and policies underlying declaratory judgments, collateral estoppel and default judgments. See, Beford Medical Care, P.C., a/a/o Vincent Meyers v. Encompass Insurance Company, 31 Misc 3d 222, 915 N.Y.S.2d 452 [Civ. Ct., Kings Co., 2011].

Interestingly, however, the decision does not address the doctrine of res judicata. Perhaps, the defendant in that case, did not move for dismissal on the ground of res judicata.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided. See, Siegel, NY Practice §442 at 747 [4th Ed.]. Res judicata, or claim preclusion, is invoked when a party, or one in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same, or series of, transactions which were raised, or could have been raised, in the [*3]

prior action. See, Matter of Hunter, 4 NY3d 260 [2005]. Res judicata applies “when a different judgment in the second [action] would destroy or impair rights or interests established by the first. See, Matter of Hunter, 4 NY3d 260 [2005]; Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304.

In SZ Medical, P.C., Life Chiropractic, P.C., JH Chiropractic, P.C., New Wave Oriental Acupuncture, P.C., a/a/o Clinton Charles v. Erie Insurance Company, 24 Misc 3d 126(A), 889 N.Y.S.2d 884 [AT 2nd, 11th & 13th Judicial Dists., 2009], the court affirmed the dismissal of the case on the lower level, and held the following:

The determination as to whether there was coverage is crucial to both

plaintiffs and defendant herein, and arises out of the same transaction,

i.e., the subject accident (see e.g. Abraham v. Hermitage Ins. Co., 47

AD3d 855 [2008]; Sabatino v. Capco Trading, Inc., 27 AD3d 1019,

1020 [2006]), and a different judgment in the instant action would

destroy or impair rights or interests established by the Supreme

Court judgment (see, e.g. Schuykill Fuel Corp. v. Nieberg Realty

Corp., 250 NY at 306-307). Moreover, the record established that

defendant and the wholly owned subsidiary had the requisite privity

(see, e.g. Spasiano v. Provident Mut. Life Ins. Co., 2 AD3d 1466

[2003]). Consequently, plaintiffs were barred from relitigating the

claim pursuant to the doctrine of res judicata.

Thereafter, the First Department in Pomona Medical Diagnostics, P.C., a/a/o Jarrod Ward v. Metropolitan Casualty Ins. Co., 29 Misc 3d 138(A), 920 N.Y.S.2d 243 (1st Dept., 2010), citing SZ Medical, P.C., Life Chiropractic, P.C., JH Chiropractic, P.C., New Wave Oriental Acupuncture, P.C., a/a/o Clinton Charles v. Erie Insurance Company, 24 Misc 3d 126(A), 889 N.Y.S.2d 884 [AT 2nd, 11th & 13th Judicial Dists.], reversed the lower court’s denial of defendant’s motion for summary judgment, and held: “Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see, Trisingh Enters., Inc., v. Kessler 249 AD2d 45 [1998]; Robbins v. Growney, 229 AD2d 356 [1996].

Herein, the plaintiff-provider, as determined by the Supreme Court, was duly served with the Summons and Complaint in the declaratory action, and therefore, judgment was entered in favor of the defendant-insurer, on October 1, 2010, due to the [*4]provider’s failure to serve and file an answer to the Summons and Complaint. There is nothing in the record to indicate that the plaintiffs, Altercare, et .al., have moved to vacate the default judgment in the Supreme Court.

Accordingly, defendant’s motion to dismiss on the ground of res judicata is hereby granted.

This constitutes the order of this Court.

Court Attorney to notify.

Dated: Brooklyn, New York

August 30, 2011

______________________________

LISA S. OTTLEY, A.J.S.C.

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 (Ben R. Barbato, J.), entered December 14, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered December 14, 2010, 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 documentary submissions established prima facie that it mailed the notices of the independent medical examinations (IME) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 27 Misc 3d 139[A], 2010 NY Slip Op 50911[U] [2010]). 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. v Bayshore Physical Therapy, PLLC, 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: August 24, 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 October 7, 2009. The order denied defendant’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and defendant’s 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 which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, 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]). Defendant also submitted, among other things, an affirmed peer review report, as well as an affirmation executed by the physician who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), defendant’s motion for summary judgment should have been granted (see Delta [*2]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]).

Golia and Rios, JJ., concur.

Steinhardt, J.P., dissents in a separate memorandum.

Steinhardt, J.P., dissents and votes to affirm the order in the following memorandum:

It is undisputed that plaintiff did not submit medical opposition to defendant’s motion for summary judgment, which was based on lack of medical necessity. However, I am of the opinion that the documentation submitted by defendant in support of its motion is insufficient to shift the burden to plaintiff.

“Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely claim denial, based on . . . a sufficiently detailed peer review report” (Amaze Med. Supply v Eagle Ins., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists 2004]). To support a motion for summary judgment, a peer review report must set forth a factual basis and medical rationale sufficient to establish, prima facie, the lack of medical necessity (see Urban Radiology, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52157[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In the instant matter, the peer review report of Dr. Ross did not “shed any light” on the assignor’s condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. “Bilateral shoulder and left elbow” injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, and insufficient to shift the burden to plaintiff. I therefore vote to affirm the order denying defendant’s motion for summary judgment.
Decision Date: August 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 (Alice Fisher Rubin, J.), entered February 6, 2009. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment as to claims for the sums of $1,205.50 and $1,675 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 the claims for the sums of $1,205.50 and $1,675 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action, insofar as it pertained to plaintiff’s claims seeking to recover the sums of $1,205.50 and $1,675, was premature because it was commenced before defendant had received responses to its outstanding verification requests, and on the ground of lack of medical necessity as to plaintiff’s claim for $502.63. The Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the $1,205.50 and $1,675 claims, and denied defendant’s cross motion for summary judgment, finding that a triable issue of fact exists as to the medical necessity of plaintiff’s $502.63 claim. This appeal by defendant ensued.

The affidavit of defendant’s litigation representative established that defendant had timely mailed its request and follow-up request for verification in accordance with its standard office practices and procedures to plaintiff and to the doctor who had prescribed the medical supplies at [*2]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]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay the $1,205.50 and $1,675 claims did not begin to run (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]), and, thus, plaintiff’s action with respect to the $1,205.50 and $1,675 claims is premature.

With respect to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover the sum of $502.63, defendant demonstrated that it had timely denied the $502.63 claim on the ground of lack of medical necessity based upon an affirmed independent medical examination (IME) report (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d at 17-18). The IME report set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the supplies at issue (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]). As plaintiff failed to submit any medical evidence to rebut defendant’s showing of lack of medical necessity, the branch of defendant’s cross motion seeking summary judgment dismissing the $502.63 claim should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Nat. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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, the branches of plaintiff’s motion seeking summary judgment as to the claims for the sums of $1,205.50 and $1,675 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: August 16, 2011