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 January 7, 2009, deemed from a judgment of the same court entered March 30, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 7, 2009 order granting plaintiffs’ motion for summary judgment and denying defendant’s motion to dismiss the complaint, awarded plaintiffs the principal sum of $11,460.46.

ORDERED that the judgment is reversed without costs, the order granting plaintiffs’ motion for summary judgment and denying defendant’s motion to dismiss the
complaint is vacated, and the matter is remitted to the Civil Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the Civil Court of such application within 90 days of the date of the order entered hereon, the Civil Court shall deny plaintiffs’ motion and grant defendant’s motion to dismiss the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Thereafter, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (2), based upon the assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court denied defendant’s motion to dismiss and granted plaintiffs’ motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, [*2]from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The Workers’ Compensation Board (Board) has primary jurisdiction to determine factual issues concerning coverage under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909 [1983]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; Santigate v Linsalata, 304 AD2d 639 [2003]). Where a plaintiff fails to litigate the issue of the availability of workers’ compensation coverage before the Board, “the court should not express an opinion as to the availability of compensation but remit the matter to the Board” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; see also O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008]).

In the instant case, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiffs’ assignor was acting as an employee at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629; Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, prior to rendering a determination on the motions, the Civil Court should have held the matter in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the
parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 8, 2009, deemed from a judgment of the same court entered July 27, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 8, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the services rendered were not medically necessary. By order entered June 8, 2009, the Civil Court granted plaintiff’s motion for summary judgment. This appeal by defendant ensued. 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 submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers 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]). As a result, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with [*2]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]). Defendant also annexed a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 (Noach Dear, J.), entered May 21, 2009. 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 moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to the motion, plaintiff submitted only an affirmation from its counsel. The court denied defendant’s motion, finding that the sole issue to be determined at trial was the medical necessity of the supplies at issue. This appeal by defendant ensued.

The affidavit submitted by defendant was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of 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]). Defendant also submitted, among other things, a sworn peer review report, as well as an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which [*2]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 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]; ain 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., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 8, 2009, deemed from a judgment of the same court entered July 27, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 8, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $415.74.

ORDERED that the judgment is reversed without costs, the order entered June 8, 2009 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing 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 on the ground that it had timely and properly reimbursed plaintiff. By order entered June 8, 2009, the Civil Court granted plaintiff’s motion for summary judgment, finding that defendant had failed to demonstrate that it had timely mailed its claim denial. This appeal by defendant ensued. 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 was sufficient to establish that the documents annexed to plaintiff’s moving papers 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 defendant raised no other issue with respect to plaintiff’s establishment of a prima facie case, we do not otherwise pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavit submitted by defendant’s employee was sufficient to establish that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard [*2]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]). Defendant further demonstrated that it had properly reimbursed plaintiff, an acupuncturist, by using the workers’ compensation fee schedule applicable to chiropractors who render the same services as those billed for herein (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Amercure Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50068[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 (Sylvia G. Ash, J.), entered March 31, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, 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, the Civil Court, insofar as is relevant to this appeal, denied defendant’s motion for summary judgment dismissing the complaint and found, pursuant to CPLR 3212 (g), that defendant’s denial of claim form was timely. This appeal by defendant ensued.

It is undisputed that plaintiff’s claim for $455 has been paid in full, including statutory interest and attorney’s fees. Accordingly, defendant’s motion for summary judgment dismissing the complaint should have been granted as to that claim.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which had denied plaintiff’s claim for $1,480 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]). Defendant also submitted an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the supplies at issue. There is no merit to plaintiff’s contention that the affirmed peer review report should not be considered by the court (see Urban Radiology, P.C. [*2]v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff failed to proffer an affidavit from a medical practitioner to rebut the conclusions set forth in the peer review report and, therefore, failed to raise a triable issue of fact. Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted as to this claim as well (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., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 April 23, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 23, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,559.70.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers’ compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it had timely denied reimbursement for most of the services at issue for lack of medical necessity based upon an independent medical examination and that it had properly paid for the remainder of the services at issue at a rate reduced pursuant to the workers’ compensation fee schedule. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Plaintiff established its prima facie entitlement to summary judgment (see Insurance Law [*2]§ 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to the motion was sufficient to establish that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [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]).

Plaintiff was not entitled to summary judgment on the claims making up the first through fifth causes of action and $124.14 of the sixth cause of action, which were denied based upon an independent medical examination, since defendant’s papers, which included an affidavit and examination report from the acupuncturist that performed the independent medical examination, were sufficient to demonstrate the existence of a triable issue of fact with respect to defendant’s defense of lack of medical necessity (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]; 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]).

For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since defendant established that it had fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint as to those claims that were reduced pursuant to the workers’ compensation fee schedule (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied, upon searching the record, partial summary judgment is granted to defendant dismissing the seventh cause of action and so much of the sixth cause of action as sought to recover the unpaid balance of $105.21 on claims that were reduced pursuant to the workers’ compensation fee schedule, and the matter is remitted to the Civil Court for all further proceedings on the first through fifth causes of action and so much of the sixth cause of action as sought to recover upon a claim in the sum of $124.14.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 (Noach Dear, J.), entered March 16, 2009. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s unopposed motion, finding that plaintiff had failed to make out a prima facie case. This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]). Accordingly, the order is affirmed.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 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 (Noach Dear, J.), entered November 3, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and granted the branch of a motion by plaintiff seeking to deem certain facts established for all purposes in the action.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the Civil Court’s order as found that plaintiff had established its prima facie case and as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see 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]).

Defendant denied the claim at issue in plaintiff’s first cause of action on the ground of lack of medical necessity. In support of its cross motion, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided. As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action 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]; 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]; 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]).

Defendant denied the claims at issue in plaintiff’s second, third and fourth causes of action based upon plaintiff’s assignor’s failure to appear for properly scheduled independent medical examinations (IMEs). In support of the branches of its cross motion seeking summary judgment as to those causes of action, defendant submitted the affidavit of an employee of Media Referral Inc., which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on February 27, 2007 and March 9, 2007 in accordance with Media Referral’s standard office practices and procedures (see Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted the affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on March 8 and March 22, 2007 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department
Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the branches of defendant’s cross motion seeking summary judgment as to those causes of action should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied. In light of our determination, we do not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 01, 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 (Alice Fisher Rubin, J.), entered February 6, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02.

ORDERED that the order, insofar as appealed from, is reversed without costs, and the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment upon its
claim form for the sum of $3,551.02. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The Civil Court granted plaintiff’s motion for summary judgment upon this claim form, and this appeal ensued.

Contrary to defendant’s contention, the affidavit of plaintiff’s medical billing supervisor was sufficient to establish that the documents annexed to plaintiff’s moving papers 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 defendant raises no other issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not otherwise pass on the propriety of the determination of the Civil Court with respect thereto.

The affidavits submitted by defendant’s “mail and file manager” and its litigation examiner were sufficient to establish that defendant’s denial of claim form, which had denied the [*2]claim at issue of 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]; 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]). Defendant also submitted a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is reversed and plaintiff’s motion for summary judgment upon the claim form seeking to recover the sum of $3,551.02 is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 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 (Robin S. Garson, J.), entered August 8, 2008. The order denied a petition to vacate a master arbitrator’s award and confirmed the award.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator which upheld an award of an arbitrator rendered pursuant to Insurance Law § 5106 (b), respondent opposed the petition, asserting that the master arbitrator had properly upheld the award. The Civil Court denied the petition and confirmed the award. The instant appeal by petitioner ensued.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and
narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]). In the instant case, petitioner failed to demonstrate the existence of any of the statutory grounds for vacatur of the master arbitrator’s award. Moreover, the determination of the master arbitrator upholding the arbitrator’s award “had evidentiary support and a rational basis, and was not arbitrary and capricious” (id.; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560 [2007]). Accordingly, the Civil Court properly denied the petition to vacate the master arbitrator’s award, and the order is affirmed. [*2]

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am in complete disagreement with the findings of the arbitrator and the master arbitrator, in that they improperly imposed an additional requirement for a sufficient peer review report, which requirement is neither mandated by the no-fault regulations nor supported by authoritative case law. However, notwithstanding the error in their application of the law, such error does not here rise to the level of being arbitrary and capricious.
Decision Date: October 01, 2010