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 (Lisa S. Ottley, J.), entered July 16, 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. Although plaintiff did not submit written opposition
to the cross motion, the Civil Court denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the services at issue. The instant appeal by defendant ensued.

The papers submitted in support of defendant’s cross motion for summary judgment included an affidavit of an employee of its claims division, which established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also included were two affirmed peer review reports, both of which set forth a factual basis and medical rationale for the opinions of the peer reviewers that there was a lack of medical necessity for the medical services at issue. Since defendant established its prima facie entitlement to summary [*2]judgment, and plaintiff submitted no written opposition to the cross motion, plaintiff failed to rebut defendant’s prima facie showing that there was a lack of medical necessity for the services (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, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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, Richmond County (Katherine A. Levine, J.), entered January 15, 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. Plaintiff did not oppose the cross motion. The Civil Court, in effect, denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of defendant’s cross motion for summary judgment, defendant submitted an affidavit of its personal injury protection litigation representative, which established that the denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also submitted was an affirmed peer review report, which set forth a factual basis and medical rationale for defendant’s doctor’s opinion that there was a lack of medical necessity for the [*2]medical supplies at issue. Since plaintiff did not oppose the cross motion, it failed to raise a triable issue of fact as to whether the supplies at issue were medically necessary. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 3, 2007. The judgment, entered pursuant to orders of the same court dated June 15, 2006, granting plaintiff’s motion for summary judgment, and March 14, 2007, granting, in part, defendant’s motion, in effect, to recalculate the awards of attorney’s fees and statutory interest and implicitly denying plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, awarded plaintiff the principal sum of $9,231.36.

ORDERED that the judgment is reversed, without costs, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, among other matters, that plaintiff failed to establish, prima facie, that it is entitled to judgment as a matter of law. In an order dated June 15, 2006, the Civil Court granted the motion. After plaintiff submitted a proposed judgment, defendant moved for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff cross-moved to enter judgment in accordance with its own calculations. In an order dated March 14, 2007, the Civil Court granted defendant’s motion, in part, and implicitly denied plaintiff’s cross motion. Defendant appeals from the judgment entered [*2]pursuant to these orders.

Upon a review of the record, we agree with defendant’s contention that plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s “officer” failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (a) (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v New York Cent. Mut. Fire Ins., 19 Misc 3d 129[A], 2008 NY Slip Op 50522[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, plaintiff’s motion for summary judgment should have been denied, and defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest should have been denied as academic.

To the extent that defendant, in its brief on appeal, seeks restitution in the event the judgment is reversed (see CPLR 5523), its application is denied without prejudice to seeking such relief in the Civil Court, to be decided by the court upon its determination of the merits of the action.
Accordingly, the judgment is reversed, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 5, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 5, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $5,600.38.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 5, 2009 as granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment with respect to these causes of action are denied, defendant’s cross motion for summary judgment dismissing these causes of action is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to the first, second, third and fifth causes of action and for the entry of judgment thereon.

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 appeals from an order entered June 5, 2009 granting plaintiff’s motion and denying defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR
5501 [c]).

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Since the affidavit of defendant’s claims representative conceded receipt of the claim forms at issue, plaintiff made a prima facie showing of its entitlement to summary judgment (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

The affidavit submitted by defendant, in opposition to plaintiff’s motion and in support of its own cross motion for summary judgment, established that defendant’s denial of claim forms pertaining to the claims at issue in the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth causes of action 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the affidavit failed to address defendant’s denial of claim form pertaining to the claim at issue in plaintiff’s fifth cause of action. Consequently, defendant did not establish that said denial of claim form was timely mailed and, as a result, defendant is precluded from raising its proffered defenses with respect to plaintiff’s fifth cause of action (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

The claims at issue in plaintiff’s first, second and third causes of action were denied on the ground that the fees charged were in excess of the workers’ compensation fee schedule. The claims at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were denied on the ground of lack of medical necessity. Defendant’s cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment were based on the foregoing defenses.

To the extent that defendant asserted that the fees charged were not in conformity with the workers’ compensation fee schedule, defendant did not specify the actual reimbursement rates which formed the basis for its determination that plaintiff had billed in excess of the maximum amount permitted (see generally Rogy Med., 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]). Thus, defendant failed to raise a triable issue of fact, and plaintiff was properly awarded summary judgment, with respect to the first, second and third causes of action.

Defendant submitted an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the conclusion that the treatments at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were not medically necessary. The affidavit of plaintiff’s treating doctor, submitted in opposition to defendant’s cross motion for summary judgment, was insufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered, as it did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME and peer review reports (Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*3]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branches of defendant’s cross motion seeking summary judgment dismissing the fourth, sixth, seventh, eighth, ninth and tenth causes of action on the ground of lack of medical necessity should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 08, 2010

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 (Dawn Marie Jimenez, J.), entered October 15, 2008. The order granted defendant’s motion to dismiss the complaint, denied plaintiff’s motion for an order compelling defendant to respond to plaintiff’s discovery demands, and denied plaintiff’s cross motion for, among other things, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York and transacted business in New York City. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which would confer [*2]jurisdiction. Plaintiff moved for an order compelling defendant to respond to its discovery demands and subsequently cross-moved for, among other things, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010

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 (Dawn Marie Jimenez, J.), entered October 15, 2008. The order granted defendant’s motion to dismiss the complaint, and denied plaintiff’s cross motion for an order compelling defendant to respond to plaintiff’s discovery demands or, in the alternative, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the
State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York and transacted business in New York City. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which [*2]would confer jurisdiction. Plaintiff cross-moved for an order compelling defendant to respond to its discovery demands or, in the alternative, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010

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 (Dawn Marie Jimenez, J.), entered October 15, 2008. The order granted defendant’s motion to dismiss the complaint, denied plaintiff’s motion for an order compelling defendant to respond to plaintiff’s discovery demands, and denied plaintiff’s cross motion for, among other things, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which would confer jurisdiction. Plaintiff moved for an order [*2]compelling defendant to respond to its discovery demands and subsequently cross-moved for, among other things, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 4, 2009, which granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment.

Per Curiam.

Order (Arlene P. Bluth, J.), entered August 4, 2009, reversed, without costs, the order vacated and the matter remanded to Civil Court for a new determination of the parties’ respective motions for summary judgment following an application by plaintiffs to the Workers’ Compensation Board to determine their rights under the Workers’ Compensation Law.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers’ Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor’s employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (Arvatz, 171 AD2d at 269), and the parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to plaintiffs’ claim (see Botwinick, supra; Dunn, supra; LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

We note that, contrary to plaintiffs’ contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 07, 2010

[*1]

Civil Court of the City of New York, Kings County, December 7, 2010

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**30 Misc 3d at 486} OPINION OF THE COURT

Alice Fisher Rubin, J.

Both of the above-captioned actions are for recovery of unpaid no-fault medical bills. Plaintiff seeks to collect monies due after defendant denied reimbursement for bills received from plaintiff for medical services rendered to the assignors, Johnson and Diggs. Defendant’s denials were based on a lack of medical necessity.

During trials before this court on July 29 and August 4, 2010 to determine the issue of medical necessity of the treatments rendered, the court was presented with novel issues regarding the admissibility of some of defendant’s documents. The court reserved decision and instructed both parties to submit legal briefs discussing the issues. After reviewing the briefs and the law, the court finds that defendant did not establish its prima facie case and hereby enters judgment in favor of plaintiff.

Discussion

In both cases, defendant stipulated that plaintiff had established its prima facie case by proving that its claims were mailed and received by defendant, and that payment of no-fault benefits is overdue. Plaintiff stipulated that defendant issued timely and proper denials, but did not stipulate that defendant had a proper basis for the denials. The denials, written by Dr. Sohn, were based upon peer reviews, each authored either by himself, Dr. Ferrante or Dr. Snitkoff. Dr. Snitkoff was the only doctor not available to testify.

In the Johnson case, only one out of the four peer reviews presented was admitted into evidence. Two of the peer reviews not admitted were signed by Dr. Ferrante, but not notarized or dated; the third peer review not admitted was signed by Dr. Snitkoff, but not notarized. In the Diggs case, one peer review was admitted into evidence and two were not. The peer reviews{**30 Misc 3d at 487} not admitted, allegedly by Drs. Sohn and Snitkoff, were unsigned and not notarized.^[FN1]

The parties were to discuss the peer reviews not admitted into evidence in their memoranda. Generally, an unsigned peer review does not constitute admissible evidence and cannot be used to support a lack of medical necessity defense. (See CPLR 2106; Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co., 21 Misc 3d 127[A], 2008 NY Slip Op 51928[U] [App Term, 1st Dept 2008].) Additionally, a peer review must be properly authorized or affirmed, by a notary, for example, in order to be admissible. (See Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778, 778 [2d Dept 2008]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 631 [Civ Ct, NY County 1971].) This court is not aware of any law which requires a peer review to be dated. However, the court hereby deems the date to be a necessary component in order to further authenticate the document, and also to ensure that the peer review is accurately described in the denial.

Peer Reviews Not Admitted Into Evidence

Defendant’s Arguments

Defendant’s memorandum includes several arguments. First, defendant states that it provided plaintiff with an expert witness disclosure on July 1, 2010 and plaintiff did not object to any documents contained in the disclosure. It is defendant’s position that plaintiff has now waived any objections to any information that was included in the disclosure because there was ample time to review and take action before trial. Defendant also proffers that any defect which may have existed in the{**30 Misc 3d at 488} denials was cured by plaintiff stipulating that they were timely and proper.

Lastly, defendant states that because Drs. Sohn and Ferrante were present to testify about their own peer reviews, the reviews do not have to be in evidence for their testimony to be valid. In support of this argument, defendant relies on Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *2 [2010]), which states that, where the underlying documents relied upon by a doctor to write a peer review are not used for their truth,^[FN2] but only to form an opinion based on the information contained in the documents, the defendant does not have to establish the reliability of those documents.

Plaintiff’s Arguments

In its memorandum, plaintiff concedes to stipulating that defendant’s denials were timely, but emphasizes that it only stipulated that the denials were proper in form, not in substance. According to St. Barnabas Hosp. v Allstate Ins. Co. (66 AD3d 996, 996 [2d Dept 2009]), a proper denial of a claim for no-fault benefits must include not only standard form information prescribed by the Insurance Department, but also must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (internal quotation marks and citations omitted). Plaintiff posits that defendant’s denials fail to state viable reasons with specificity.

Next, plaintiff notes that none of the documents relied upon by either Dr. Sohn or Dr. Snitkoff in creating their peer reviews were admitted into evidence, and that neither party had any personal knowledge of where the documents came from. Plaintiff also asserts that the undated peer reviews do not provide any evidence that they are the peer reviews referred to in defendant’s denials, and there was no testimony to provide an explanation for the omissions.

Finally, plaintiff argues that a peer review must be in evidence to be used as a basis for a denial. Plaintiff claims that an unsubstantiated, inadmissible peer review is equivalent to no peer review at all; therefore, a denial based on such a peer review is unsubstantiated as well. Plaintiff cites Innovative Chiropractic, P.C. v Travelers Ins. Co. (27 Misc 3d 141[A], 2010 NY{**30 Misc 3d at 489} Slip Op 50994[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]), which explains that a proper peer review “set[s] forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue.” Following this rationale, plaintiff asserts that before defendant can even prove the denials are proper, a peer review must first be in admissible form, which is not the case here.

Defendant Has Not Proved Its Prima Facie Case

Although plaintiff did not object to the documents contained in defendant’s expert witness disclosure before trial, defendant has not provided, and the court has not found, any authority to support the notion that plaintiff waived its ability to object to the denials during trial. Further, the court cannot support defendant’s argument that plaintiff’s stipulation cured the defects in defendant’s denials. At least one case has stated that a defective denial cannot be corrected nunc pro tunc beyond the time period where the denial is due. (See Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2d Dept 2004].) However, the Nyack case is silent on the process of how a defective denial is cured, even within the time period of when it is due.

Defendant’s final argument suggests that, although some of the peer reviews by Drs. Sohn and Ferrante were not in evidence, the doctors’ testimony regarding those documents is still valid. The Urban case cited by defendant, however, only states that a party does not have to establish the reliability of the underlying documents used to create a peer review, but does not state that the same is true for the actual peer review. As stated previously, there is case law providing that a peer review must be admissible to be used in establishing a lack of medical necessity defense.

Based on the law, neither of the peer reviews at issue in the Diggs case can be rendered admissible because they were not signed, regardless that one of the doctors was present to testify. Since the documents are not admissible, they cannot serve as a valid basis for defendant’s denials and, therefore, defendant is not able to establish its prima facie case.

In the Johnson case, because Dr. Snitkoff was not present, there is no way to authenticate his signature, and his peer review is therefore inadmissible. Although not notarized, it would seem as though Dr. Ferrante’s peer reviews are admissible because he was present in court to affirm his own{**30 Misc 3d at 490} signature. However, because both of his peer reviews fail to state the date they were signed, this court cannot ensure that the peer reviews presented were the ones relied upon and referenced in the denials. Based upon the aforementioned facts and law, defendant has not provided sufficient proof of its medical necessity defense and judgment is entered in favor of plaintiff.

Footnotes

Footnote 1: Plaintiff argues that the one peer review admitted in the Diggs case was in error because there was a month-long gap between the date of the peer review and the date it was signed, which is a violation of CPLR 4518. The court finds this argument to be misplaced and will not review the documents already admitted into evidence.

Footnote 2: For example, to prove that there was an injury or that a patient was treated as set forth in the records. (Urban Radiology, P.C., 2010 NY Slip Op 50987[U], *2.)

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants.

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 26, 2010, as granted the defendant’s cross motion to modify the amount of a judgment entered upon an order of the same court dated September 22, 2009, inter alia, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.

Ordered that the appeal by the plaintiffs Mary Immaculate Hospital-Caritas Health Care, as assignee of Leroy Pearson, and New York Hospital Medical Center of Queens, as assignee of Eugenia Theodosiou, is dismissed, as those plaintiffs are not aggrieved by the portion of the order appealed from; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant, payable by the plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell.

The plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell (hereinafter the plaintiff), was awarded summary judgment on a cause of action to recover no-fault medical payments from the defendant under an insurance contract. Thereafter, judgment was entered against the defendant in satisfaction, inter alia, of the aforementioned claim of the plaintiff. The defendant subsequently cross-moved pursuant to CPLR 5019 (a) to modify the amount of the judgment that was in satisfaction of that claim, on the ground that it exceeded the limits of the policy covering Gonell in light of payments made under that policy to other health care providers. The Supreme Court, among other things, granted the cross motion.

Contrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (see Hospital for Joint [*2]Diseases v Hertz Corp., 22 AD3d 724 [2005]; see generally Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; Frankel v J.P. Morgan Chase & Co., 76 AD3d 664 [2010]).

The plaintiff’s remaining contentions are without merit.

We note that, in affirming the Supreme Court’s order, we do not pass upon the propriety of the procedural mechanism utilized by the defendant, to wit, CPLR 5019 (a), to which the plaintiff did not object (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]; Martin v City of Cohoes, 37 NY2d 162, 165-166 [1975]). Skelos, J.P., Fisher, Santucci and Leventhal, JJ., concur.