District Court of Suffolk County, Third District

HUC 1503/2007

Rapuzzi, Palumbo & Rosenberger, P.C.

Jason Moroff, Esq.

Attorney for the Plaintiff

3361 Park Avenue

Wantagh, New York 11793

Bruno, Gerbino & Soriano, Llp

Adam D. Levine, Esq.

Attorney for the Defendant

445 broad Hollow road, Suite 220

Melville, New York 11747

C. Stephen Hackeling, J.

At a trial of the above captioned medical service provider “no-fault” action conducted June 17, 2010, neither side presented witnesses. Instead the plaintiff offered into evidence a Notice to Admit dated May 12, 2010 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $3,485.00, that no verification of information was requested, and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to NY Ins. Law § 5106(a). The defendant asserts that the plaintiff cannot avail itself of the statutory NY CPLR 3123 admissions as it did respond to same. The defendant’s response to the Notice to Admit contained the same verbatim response to each of the forty questions which reads: “Defendant can [*2]neither admit nor deny this matter as it pertains to a material issue of fact that can only be resolved at the time of trial, and is therefore not the proper subject of a Notice to Admit.” It is the defendant’s contention that it need not produce a witness to establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

It is noted that the Appellate Courts are split on the availability of Notices to Admit to establish a medical provider no fault insurance claim. This court has previously decided that the Notice to Admit could be used to establish a NY Ins. Law § 5106(a) prima facie cause of action. Advanced Tempromandibular Disorder & Dental Surgery v. Progressive Northeastern Ins. Co., 27 Misc 3d 436 (Suf. Co. Dist. Ct. 2010) 896 NYS2d 830. Subsequent to that decision, the Appellate term of the Supreme Court, First Department has allowed no fault plaintiffs to establish their prima facie case via Sec. 3123 admissions and expressly found that facts such as receipt of a claim and the failure to respond or pay within 30 days were not legal conclusions which constitute inappropriate requests to admit. Central Nassau Diagnostic Imaging, P.C. v. Geico., 2010 NY Slip Op 20244 (App. Term, 1st Dept., 2010).

The plaintiff in this action seeks to push the envelope one step further by asking for a finding that a written timely inappropriate response similarly constitutes a statutory admission sufficient to establish a prima facie case without the need to call a witness.

The Notice to Admit is a procedural device used to narrow the disputed issues to be addressed at trial. See Hodes v. City of New York I, 165 AD2d 168, 566 NYS2d 611 (App. Div. 1st Dept. 1991). If a party declines to do anything in response to the Notice to Admit, the requested admissions are deemed admitted. The proper response as per CPLR Sec. 3123 is either an admission, a denial, or ” if the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim..”^[FN1] Unlike requests for written interrogatories where a party is permitted to object in lieu of responding (CPLR 3133 (a)), such a procedure is not authorized with a Notice to Admit. See Webb v. Tire and Brake Distributor, Inc., 13 AD3d 835, 786 NYS2d 636 (NYAD 3rd Dept. 2004), cited in Prime Psychological Serv. P.C. v. Auto One Insurance Co.,18 Misc 3d 1122(A) (NY Civ. Ct. 2008). If there is a request for an improper admission, the correct procedure is to seek a protective order, pursuant CPLR § 3103. See Saqiv v. Gamache, 26 AD3d 368 (N.Y.A.D. 2nd Dept. 2006).

The plaintiff s Notice to Admit has established its prima facie case that; (1) necessary billing documents were mailed to and received by insurer, and (2) that the payments of no-fault benefits was overdue. New York Insurance Law § 5106; See Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (NY AD 1st Dept. 2008). As the defendant has presented no testimony or alternative evidence to rebut the plaintiff’s case, this Court must enter judgment for [*3]the plaintiff in the sum of $3,485.00. The plaintiff shall settle judgment plus appropriate costs, interest and attorneys fees upon twenty (20) days notice.

___________________________

J.D.C.

Dated: June 23, 2010

Footnotes

Footnote 1: The assertion that a fact is too “material” to be admitted or denied does not qualify for this sworn “explanation” exemption.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered July 20, 2009. The order, insofar as appealed from, upon granting defendant’s motion for reargument, denied defendant’s motion to vacate arbitration awards and granted plaintiff’s cross motion for summary judgment.

ORDERED that, on the court’s own motion, the instant action is converted to a special proceeding.

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

AIU Insurance Company (AIU) commenced the instant action to confirm arbitration awards issued against defendant State Farm Insurance Company (State Farm) in a mandatory inter-company arbitration proceeding (Insurance Law § 5105) brought by AIU to recover first-party no-fault benefits paid to its insureds as a result of injuries they had suffered in a multi-vehicle accident. State Farm contended that the awards were arbitrary and capricious, and sought to vacate the awards on that basis. The District Court found in favor of AIU, and this appeal by State Farm ensued.

As a preliminary matter, we note that, pursuant to CPLR 7502 (a), “[a] special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy,” and therefore the proper procedure was to commence a special proceeding, not an action, to confirm the arbitration awards pursuant to CPLR 7510 (see Scaduto v DT Indus., 266 AD2d 149 [1999]; Polednak v Country-Wide Ins. Co., 153 AD2d 930 [1989]). Consequently, on this court’s own motion, we convert the action to a special proceeding (see CPLR 103 [c]; see also Saratoga CCM, Inc. v Guarino, 21 Misc 3d 142[A], 2008 NY Slip Op 52385[U] [App Term, 2d & 11th Jud Dists 2008]). [*2]

Upon a review of the record, we find that the awards in this compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762 [2005]). The decisions by the arbitrator indicated that he had considered the evidence proffered by the parties, including the police report, as well as State Farm’s affirmative defense. Thus, it cannot be said that the awards were arbitrary and capricious or that they were unsupported by any reasonable hypothesis (see Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214). Consequently, the District Court did not err in denying vacatur of the awards. We note that, in granting AIU’s cross motion for summary judgment, the District Court, in effect, confirmed the awards. Accordingly, the order, insofar as appealed from, is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 11, 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 (Wavny Toussaint, J.), entered May 1, 2009. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross 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, defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that there was no coverage for the claims at issue because the assignor had breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). Plaintiff appeals from that order, and we affirm.

On appeal, plaintiff’s only contention is that the EUO scheduling letters were “nullities” because they were sent by defendant’s counsel on behalf of defendant, not by defendant directly. Plaintiff’s argument lacks merit. The letters clearly apprised the assignor that counsel had been retained by defendant and that the letters were being sent on defendant’s behalf. Accordingly, the Civil Court properly found that the assignor had breached a condition precedent to coverage, and the order is affirmed.

We reach no other issue.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 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 (Lila Gold, J.), entered November 17, 2008, deemed from a judgment of the same court entered December 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $730.50.

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 claim had been submitted more than 45 days after the date the services had been rendered. 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]).

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (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]). [*2]

In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.

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., Weston and Golia, JJ., concur.
Decision Date: June 11, 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 December 17, 2008. 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. The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.” The instant appeal by defendant ensued.

Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed (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]). In regard to the two $990.48 claims for services rendered to assignor Avez, it is undisputed that plaintiff failed to respond to defendant’s verification requests. While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere. Consequently, the time in which defendant had to pay or deny the claims was tolled, and the branch of defendant’s motion seeking summary judgment dismissing the first and second causes of action, on the ground that they were premature, should have been granted (Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant’s denial of claim form, which denied the claims pertaining to assignor Rafailova on, among other grounds, a lack of medical necessity, together with defendant’s [*2]affirmed peer review report, established, prima facie, that there was no medical necessity for the services at issue. The fact that defendant’s peer reviewer considered medical records from plaintiff, as well as from other providers who treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; see generally East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009] [ in some instances, (the) regulations use the term applicant’ as a generic reference to both provider/assignees and injured persons”]). As a result, plaintiff’s contention that defendant must consider plaintiff’s bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit.

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat defendant’s motion for summary judgment. In view of the foregoing, and as plaintiff’s remaining contentions lack merit or are unpreserved for appellate review, the branch of defendant’s motion seeking summary judgment dismissing the [*3]third and fourth causes of action should also have been granted (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 142[A] 2009 NY Slip Op 50491[U]).

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

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 08, 2010

District Court of Nassau County, Second District

32836/08

Friedman, Harfenist, Langer & Kraut, LLP, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042, Attorney for Plaintiff

Rossillo & Licata, P.C. 355 Post Ave., Suite 204, Westbury, NY 11590, Attorney for Defendant

Michael A. Ciaffa, J.

Motion by defendant for summary judgment dismissing plaintiff’s no-fault claim is DENIED.

The papers submitted by defendant in support of its motion for summary judgment include proof of plaintiff’s admitted receipt of defendant’s denial, grounded upon a defense of lack of medical necessity. Although plaintiff’s counsel questions the sufficiency of defendant’s proof that the denial was mailed timely, cf Elmont Open MRI v. Progressive Cas. Ins. Co., 2009 NY Slip Op 50693 (Dist Ct Nassau Co.), plaintiff is in no position to contest the adequacy of defendant’s proof of timely mailing under the circumstances at bar. At least in cases, like this one, where plaintiff’s interrogatory responses admit receipt of the denial but aver that plaintiff keeps no record of the dates when denials are received, plaintiff should not be allowed to dispute the timeliness of the denial without making an affirmative allegation that the denial was received on or after a particular date. In the absence of such an affirmative allegation, the Court may properly assume that the denial was mailed on or about the date shown on the denial. Federal Courts routinely assume that notices are duly mailed “on the date shown on the notice” unless the recipient presents “sworn testimony or other admissible evidence” which provides a factual basis for challenging the assumption. See, e.g. Sherlock v. Montefiore Med. Center, 84 F3d 522, 526 (2nd Cir, 1996). [*2]

Moreover, since the denial presumably was received in an envelope which included evidence of a date of postmarking or postal metering, the Court can properly draw an adverse inference from plaintiff’s failure to retain and preserve the envelope. It appears well settled that a party’s failure to keep and produce “the postmarked envelope” may result in an “adverse inference” in cases involving an issue of timely mailing. See, e.g. Lewis v. U.S., 144 F3d 1220, 1223 (9th Cir. 1998).

Consequently, the Court need not reach the issue of whether defendant’s proof of timely mailing of its denial strictly satisfied the requirements of St. Vincent’s Hosp. v.

GEICO, 50 AD3d 1123 (2d Dept. 2008), and its progeny. Since plaintiff’s answers to interrogatories admitted receipt of the denial, and since plaintiff has averred that it kept no records indicating the date of receipt, the timeliness of defendant’s mailing is not a legitimate issue in dispute. The Court therefore turns to the sufficiency of defendant’s proof of its defense, on the merits, that the subject MRI was not medically necessary.

In support of defendant’s lack of medical necessity defense, defendant relies upon the affidavit and peer review report of Dr. Kevin Portnoy. The proof is in proper evidentiary form. The doctor’s opinion is based upon his review of medical records obtained as part of defendant s verification process. Dr. Portnoy appears to have the background, experience, and credentials to make a credible presentation on the issue of medical necessity. His report, on its face, sets forth a factual basis and medical rationale for the denial, supported by reference to certain articles and general guidelines respecting the performance of MRIs. Cf. Nir v. Allstate Ins. Co., 7 Misc 3d 544, 546-7 (Civ Ct Kings Co 2005).

Nevertheless, it cannot be emphasized too strongly that summary judgment is a “drastic remedy” which should not be granted if there is “any doubt” respecting the existence of a triable issue. “Issue finding, not issue determination, is the key to the procedure.” Staten Island Hosp. v. Home Ins. Co., 148 AD2d 522 (2d Dept 1989), quoting Sillman v. Twentieth Century-Fox, 3 NY2d 395, 404 (1957); see also Millennium Radiology P.C. v. NY Central Mut. Fire Ins. Co., 2009 NY Slip Op 50877 (Civ Ct Richmond Co.).

Judged by these standards, defendant has not met its heavy burden. Although plaintiff perhaps would have been better served had it secured an affidavit from the doctor who prescribed the subject MRI, the doctor previously submitted to defendant a letter of medical necessity which sets forth his own factual basis and medical justification for the MRI. It states, in pertinent part: “After two months of treatment, patient still has neck pain and stiffness. An MRI of the Cervical Spine was warranted to further evaluate my patient and to rule out disc herniation and pathology.” The factual basis set forth is supported by medical documentation, showing claimant’s condition, day to day, in the weeks immediately preceding the MRI. Moreover, the MRI test results confirmed multiple disc herniations abutting the anterior aspect of the spinal canal.

Dr. Portnoy’s report never specifically addresses the treating doctor’s stated basis for the test. While he gives a number of examples of factors that would justify an MRI, he cites no [*3]specific medical authority or standards which state that an MRI would be contraindicated for a patient still suffering from a cervical trauma approximately two months post-accident. Moreover, he makes no effort “to explain how the [MRI] could be medical unnecessary when the test[] did in fact yield positive findings . . .” Nir, supra.

In short, when viewed in the context of the presumption of medical necessity, the treating doctor’s rationale, the medical records of claimant’s condition, and the heavy burden placed upon defendant under the caselaw governing summary judgment, the Court concludes that Dr. Portnoy’s report and affidavit fail to prove defendant’s entitlement to judgment as a matter of law. Accordingly, defendant’s motion for summary judgment must be denied.

SO ORDERED:

DISTRICT COURT JUDGE

Dated: June 4, 2010

CC:Friedman, Harfenist, Langer & Kraut, LLP

Rossillo & Licata, P.C.

MAC:ju

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 April 13, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the supplies provided to plaintiff’s assignor were not medically necessary. The Civil Court granted the motion, finding that plaintiff’s opposition papers failed to rebut defendant’s showing that the supplies provided were not medically necessary. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing the timely mailing of the claim denial form (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]) and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for the supplies provided (see 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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for [*2]summary judgment dismissing the complaint was properly 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]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 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 November 5, 2008. 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. The Civil Court denied both motions. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (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]) the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, an affidavit from its peer review chiropractor and a 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 services at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant’s showing that the services were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.
Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 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 February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated September 13, 2006, plaintiff was required “to serve full and complete responses” to defendant’s discovery demands by a specified date or be precluded from offering such evidence at trial.

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Consequently, defendant moved for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 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 February 18, 2009, deemed from a judgment of the same court entered March 16, 2009 (see CPLR 5520 [c]). The judgment, entered pursuant to the February 18, 2009 order granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated December 13, 2006, plaintiff was required “to serve complete verified responses to [d]efendant’s [w]ritten [d]iscovery demands” by February 26, 2007. The stipulation further provided that “[f]ailure to comply [with] the terms [of the stipulation] will result in [p]laintiff being precluded from offering evidence or testimony at trial.”

It is undisputed that plaintiff failed to timely provide the ordered discovery responses. Over a year after plaintiff’s deadline to comply with the so-ordered stipulation had passed, defendant moved to dismiss plaintiff’s complaint on the ground that plaintiff was precluded from offering any evidence or testimony at trial and, thus, could not establish a prima facie case. In opposition, plaintiff offered no excuse for its failure to comply with the so-ordered stipulation, asserting only that it had finally, over a year after the deadline and after defendant had made the instant motion, served the requested responses. The Civil Court granted defendant’s motion. A judgment was subsequently entered, from which we deem plaintiff’s appeal to be taken (CPLR 5520 [c]).

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon plaintiff’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). Plaintiff failed to meet this burden. Consequently, as the order of preclusion prevented [*2]plaintiff from making out a prima facie case, the Civil Court properly granted defendant’s motion seeking to dismiss the complaint. Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 04, 2010