Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51745(U))

Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51745(U))

W.W. Med., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51743(U))

Reported in New York Official Reports at W.W. Med., P.C. v Allstate Ins. Co. (2013 NY Slip Op 51743(U))

Hunt City Chiropractic, LLP v Chubb Indem. Ins. Co. (2013 NY Slip Op 51679(U))

Reported in New York Official Reports at Hunt City Chiropractic, LLP v Chubb Indem. Ins. Co. (2013 NY Slip Op 51679(U))

Acupuncture Approach PC v MVAIC (2013 NY Slip Op 51676(U))

Reported in New York Official Reports at Acupuncture Approach PC v MVAIC (2013 NY Slip Op 51676(U))

[*1] Decided on October 15, 2013

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570427/13.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered August 13, 2012, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment in the principal sum of $570.

Per Curiam.

Order (Peter H. Moulton, J.), entered August 13, 2012, affirmed, with $10 costs.

In opposition to plaintiff’s prima facie showing of entitlement to judgment as a matter of law on its claim for assigned first-party no-fault benefits, defendant MVAIC failed to raise a material issue requiring a trial, much less demonstrate a legal basis to dismiss the claim outright. While defendant contends that the claim for payment was premature because of plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), defendant failed to establish, prima facie, that the notices scheduling the IMEs were properly addressed and mailed. In this regard, defendant’s moving submission heavily relied on an affidavit submitted by an employee of the entity retained by defendant to schedule the IMEs in this matter. The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her office’s mailing practices and procedures. Thus, defendant “failed to establish that the practice and procedure was designed to ensure that the [notices] were addressed to the proper party and properly mailed” (Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; cf. Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013All Boro Psychological Servs., P.C. v MVAIC (2013 NY Slip Op 51744(U))

Reported in New York Official Reports at All Boro Psychological Servs., P.C. v MVAIC (2013 NY Slip Op 51744(U))

[*1] Decided on October 15, 2013

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2249 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011, deemed from a judgment of the same court entered July 22, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 3, 2011 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the cross motion of defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

Accordingly, the judgment is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013Shore Med. Diagnostic, P.C. v MVAIC (2013 NY Slip Op 51749(U))

Reported in New York Official Reports at Shore Med. Diagnostic, P.C. v MVAIC (2013 NY Slip Op 51749(U))

[*1] Decided on October 15, 2013

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2796 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered July 11, 2011, deemed from a judgment of the same court entered September 28, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 11, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,069.10.

ORDERED that the judgment is reversed, with $30 costs, the order entered July 11, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Since defendant established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant had not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, the order entered July 11, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013Optimal Well-Being Chiropractic, P.C v MVAIC (2013 NY Slip Op 51751(U))

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C v MVAIC (2013 NY Slip Op 51751(U))

[*1] Decided on October 15, 2013

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2927 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 22, 2011, deemed from a judgment of the same court entered October 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,330.56.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 22, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In order for a bicyclist who has allegedly been injured in a hit-and-run accident, such as plaintiff’s assignor herein, to be a “covered person” and obtain no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation, the person must have complied with all the applicable requirements of Insurance Law article 52 (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]), including, but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance Law § 5208 [a] [2] [A]), unless a showing is made that it was “not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible” (Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]). In the instant case, defendant’s claims examiner stated in his affidavit in support of defendant’s cross motion that, despite repeated requests for proof that plaintiff’s assignor had filed an accident report, plaintiff’s assignor had never provided such proof. Plaintiff’s opposing papers are devoid of any indication that plaintiff’s assignor complied [*2]with the reporting requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it “was not reasonably possible to make such a report” (Insurance Law § 5208 [a] [2] [B]). As a result, defendant was entitled to summary judgment dismissing the complaint (see Insurance Law § 5221 [b] [2]; Velen Med. Supply v MVAIC, 33 Misc 3d 135[a], 2011 NY Slip Op 52016[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, the order entered September 22, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 201320th Ave Acupuncture, P.C. v MVAIC (2013 NY Slip Op 51741(U))

Reported in New York Official Reports at 20th Ave Acupuncture, P.C. v MVAIC (2013 NY Slip Op 51741(U))

[*1] Decided on October 10, 2013

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2681 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 16, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon a claim for dates of service from July 8, 2008 to July 10, 2008; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period, or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff’s affidavit in support of its motion for summary judgment failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form, plaintiff failed to establish its prima facie entitlement to summary judgment. Consequently, its motion should have been denied.

Defendant established that it had issued timely partial denials (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]) of the claims at issue in this action, with the exception of a claim form in the sum of $501.21 for [*2]services rendered between July 8, 2008 and July 10, 2008. According to the affidavit executed by defendant’s claim representative, that denial of claim form was issued more than six months after defendant had received the claim form, and defendant did not allege that the payment or denial of this particular claim had been tolled. Consequently, defendant did not establish that this claim had been timely denied and, thus, defendant’s cross motion for summary judgment was properly denied with respect to so much of the complaint as sought to recover upon that claim.

Defendant demonstrated that it had fully paid plaintiff for the remaining services at issue in accordance with the workers’ compensation fee schedule. Consequently, the branches of defendant’s cross motion for summary judgment seeking to dismiss so much of the complaint as sought to recover for these services should have been granted (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon plaintiff’s claim for dates of service from July 8, 2008 to July 10, 2008.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 10, 2013Americhoice Med., P.C. v Motor Veh. Acc. Indem. Co. (2013 NY Slip Op 51742(U))

Reported in New York Official Reports at Americhoice Med., P.C. v Motor Veh. Acc. Indem. Co. (2013 NY Slip Op 51742(U))

[*1] Decided on October 10, 2013

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2947 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered September 7, 2011. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint.

It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days after the services at issue had been rendered (see Insurance Department Regulations [11 NYCRR] § 65-1.1; AAA Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists 2007]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept 2007]) and that plaintiff did not do so. MVAIC’s denial of plaintiff’s claim, based upon its untimely submission, also informed plaintiff that it could excuse the delay if plaintiff provided “written justification” for the delay (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Nir, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U]). Since plaintiff failed to do so, MVAIC’s motion for summary judgment dismissing the complaint should have been granted.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 10, 2013Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))

Reported in New York Official Reports at Gl Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51748(U))