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 21, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint 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. The instant appeal by plaintiff ensued.

The affidavit of defendant’s personal injury protection litigation representative sufficiently set forth her personal knowledge of defendant’s business practices and procedures, and sufficiently described defendant’s “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, 680 [2001]). There is no merit to plaintiff’s contention that the affidavit did not establish that the claim denial forms were mailed on the date on which the affiant stated.

Plaintiff also argues that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs), but rather to show that such denials were sent and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Furthermore, contrary to plaintiff’s contention, defendant was not required to lay a foundation for plaintiff’s own records. Defendant was only required to demonstrate, as it did, that it had timely and properly denied the claim forms which are the subject of the action.

Defendant established both that the notices which scheduled the EUOs of plaintiff’s assignor were properly mailed by the law firm retained by defendant to schedule and conduct [*2]said EUOs (see Residential Holding Corp., 286 AD2d at 680) and that the assignor failed to appear (see Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The fact that said law firm was contacted by the assignor’s attorney to reschedule or to confirm the EUOs indicates that the attorney had communicated with the assignor and was acting on her behalf (see generally St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]).

In view of the foregoing, and as the appearance of plaintiff’s assignor at an EUO was a condition precedent to defendant insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant’s motion for summary judgment dismissing the complaint was properly granted, and plaintiff’s cross motion was properly denied.

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, Kings County (Alice Fisher Rubin, J.), entered August 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. As to the claims pertaining to assignors Eridania Hiraldo and Manuel Espinal, defendant contended that such claims had been made pursuant to an insurance policy which had been cancelled prior to the date of the accident and that therefore there was no coverage for such claims. As to the claim pertaining to assignor Milton Williams, who was involved in a separate accident, defendant asserted that it had timely denied the claim on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion, and the instant appeal ensued.

Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed. [*2]

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

[*1]

Supreme Court, Appellate Term, Second Department, June 3, 2010

APPEARANCES OF COUNSEL

Rubin, Fiorella & Friedman LLP, New York City (Joseph Federici and Harlan R. Schreiber of counsel), for appellant. Lewin, Goodman, Baglio, LLP, Melville (James E. Coughlin of counsel), for respondent.

{**28 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Ordered that the appeal from the decision is dismissed; and it is further, ordered that the judgment is reversed without costs and the matter is remitted to the Civil Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Bhutta Realty Corp. v Sangetti, 165 AD2d 852, 853 [1990] [invoking CPLR 3222]; Coccio v Parisi, 151 AD2d 817 [1989] [same]). The sole legal issue presented by the submission was whether it was ascertainable, within one year of the subject accident, “that further expenses may be incurred as a result of the injury” (Insurance Law § 5102 [a] [1]). The Civil Court concluded that, because plaintiff’s assignor had submitted an application for no-fault benefits within two months of the subject accident, the injuries that would possibly require treatment were ascertainable, with minimal investigation or a simple inquiry, within a year of the date of the accident. A judgment was entered in plaintiff’s favor.

Insurance Law § 5102 (a) (1) provides for the payment of necessary medical and other expenses “all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.” The no-fault regulations state that “an insurer shall not be liable for the payment of medical and other benefits enumerated in section 5102(a)(1) if, during a period of one year from the date of the accident, no such expenses have been incurred by the applicant”{**28 Misc 3d at 57} (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [3]). No-fault expenses are incurred at the time treatment is received (see Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1088 [2007]).

While the parties stipulated that plaintiff’s assignor had been involved in an accident on [*2]December 12, 2005, that plaintiff’s assignor had submitted an application for no-fault benefits on February 1, 2006, that plaintiff had provided services between January 3, 2007 and May 14, 2007, that plaintiff had established its prima facie case, and that defendant had not received any no-fault claims on plaintiff’s assignor’s behalf until January 18, 2007, the stipulation is silent as to whether plaintiff’s assignor had received any relevant treatment from any provider, and therefore incurred any relevant expenses, within the one-year period following the accident. “It is well established that a stipulation of facts pursuant to CPLR 3222 must cover all points in dispute” (Bhutta Realty Corp., 165 AD2d at 853; see also CPLR 3222 [b] [5]; Coccio, 151 AD2d 817 [1989]). In our opinion, the absence of this relevant information precludes a determination of the action upon the submission of agreed upon facts. The submission should have been dismissed as inadequate, and the parties permitted to submit a more definite statement of facts or proceed to a trial on the disputed issue (see Bhutta Realty Corp., 165 AD2d 852 [1990]; Coccio, 151 AD2d 817 [1989]).

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

—[*1] Smith & Laquercia, LLP, New York, N.Y. (Robert W. Napoles of counsel), for appellant.

Goidel & Siegel, LLP, New York, N.Y. (Andrew B. Siegel of counsel), for respondent Vitaly Polyakov.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for supplementary uninsured motorist benefits, New York Central Mutual Fire Insurance Company appeals from an order of the Supreme Court, Kings County (Balter, J.), dated June 17, 2009, which denied the petition and directed the parties to proceed to arbitration.

Ordered that the order is reversed, on the law, with costs, the petition is granted, and the arbitration is permanently stayed.

On September 1, 2007, the respondent Vitaly Polyakov (hereinafter Polyakov) was involved in a motor vehicle accident while driving a motorcycle which he owned. Polyakov’s motorcycle hit the rear end of the automobile of the respondent P. Tsismanakis while that automobile was stopped at a traffic light on Coney Island Avenue in Brooklyn. Polyakov reported to the police officer who responded to the scene that an unidentified vehicle struck his motorcycle causing him to swerve and hit the Tsismanakis vehicle in the rear. The police accident report did not list any insurance information for either the Tsismanakis vehicle or the motorcycle. However, at the time of the accident, the respondent Mikhail Polyakov (hereinafter the named insured), Polyakov’s father, had a policy of automobile insurance issued by the petitioner, New York Central Mutual Fire Insurance Company. The only vehicle named under that policy as a covered vehicle was a 2001 Nissan Maxima owned by the named insured.

By letter dated September 28, 2007 (hereinafter the notice of accident), Polyakov’s counsel advised the petitioner that Polyakov was involved in the subject accident while he “occupied [an] uninsured vehicle.” Polyakov advised the petitioner of his intent to file a claim for no-fault first-party benefits under the subject policy as the son of the named insured who was a member of the same household. Polyakov also advised of his intent to pursue claims “under the hit and run provisions of the [subject] policy.” Notably, in the application for no-fault benefits signed by Polyakov, he asserted, inter alia, that the owner of the motorcycle he was driving was “unknown at this time.” [*2]

By letter dated October 12, 2007 (hereinafter the denial of claim), from the petitioner’s counsel to Polyakov’s counsel, Polyakov was advised that his claim for benefits under the supplementary uninsured/underinsured motorists endorsement (hereinafter the SUM endorsement) of the subject policy was denied. The petitioner averred that its investigation revealed that Polyakov was the titled owner of the motorcycle which he was riding at the time of the accident. In addition, the motorcycle was not an insured vehicle under the subject policy. Consequently, the petitioner advised Polyakov that his claim for SUM benefits must be denied because the SUM endorsement excluded coverage for bodily injury to an insured while occupying a motor vehicle owned by that insured which was not insured under the subject policy. The petitioner also reserved its rights to deny coverage for any additional reasons that later came to its attention.

By demand for arbitration dated March 5, 2009, submitted to the American Arbitration Association, New York State Sum Arbitrational Tribunal, Polyakov made a demand on the petitioner for arbitration of his claim for SUM benefits. On or about March 23, 2009, the petitioner commenced this proceeding pursuant to CPLR article 75 to permanently stay arbitration of Polyakov’s claim. The Supreme Court denied the petition and directed the parties to proceed to arbitration. We reverse.

The policy language in question was not ambiguous, and the petitioner was entitled to have the provisions it relied on to disclaim coverage enforced (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d 486, 487-488 [2006]; see generally Baughman v Merchants Mut. Ins. Co., 87 NY2d 589, 592 [1996]; Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865 [1977]). The SUM endorsement under the subject policy provided, in relevant part, that “[t]his SUM coverage does not apply . . . [t]o bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made.” This language is not ambiguous and the terms must be construed according to their plain and ordinary meaning. This policy exclusion unambiguously excluded from SUM coverage compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident with an uninsured vehicle, while occupying a motor vehicle he or she owns, which vehicle was not covered under the policy (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488; Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d 127, 129 [2005]; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d 829, 829-830 [1996]). There is no dispute that Polyakov, at the time of the accident, was occupying a vehicle, the motorcycle, that he owned but that was not covered under the subject policy.

In addition, contrary to Polyakov’s contention, the exclusion from coverage also would have been applicable under the mandatory uninsured motorists provision of the policy, which similarly provides that the petitioner does “not provide Uninsured Motorists Coverage for ‘bodily injury’ sustained: 1. By an insured while ‘occupying’, or when struck by, any motor vehicle owned by that ‘insured’ which is not insured for this coverage under this policy.” However, as the petitioner correctly argues, the mandatory uninsured motorists provision was removed from the subject policy by amendment pursuant to Section III of the Amendment of Policy Provisions—New York, and the SUM endorsement was added (see generally 11 NYCRR 60-2.3 [e]).

Accordingly, the petition should have been granted (see Matter of USAA Cas. Ins. Co. v Hughes, 35 AD3d at 488; Matter of Utica Mut. Ins. Co. v Reid, 22 AD3d at 129; Matter of New York Cent. Mut. Fire Ins. Co. [Prehoda], 231 AD2d at 829-830; cf. Matter of Metropolitan Prop. & Liab. Co. v Feduchka, 135 AD2d 715 [1987]; see generally Government Empls. Ins. Co. v Kligler, 42 NY2d at 864-865).

The parties’ remaining contentions either are without merit or have been rendered academic. Skelos, J.P., Covello, Hall and Sgroi, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, May 29, 2010

APPEARANCES OF COUNSEL

Law Offices of Daniel J. Tucker, New York City (Peter Coates of counsel), for defendant. Law Offices of Melissa Betancourt, P.C., Brooklyn (Aaron Cargain of counsel), for plaintiff.

{**28 Misc 3d at 828} OPINION OF THE COURT

Sylvia G. Ash, J.

In an action seeking payment of first-party no-fault benefits, defendant moves to reargue the court’s decision dated October 9, 2009, wherein the court found that defendant’s denial of plaintiff’s claim was untimely.

The court found that defendant’s follow-up verification request was two days late, thus reducing its denial time to 28 days (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]), which made its denial in this case late by one day. Defendant contends that the court erred in its finding that its follow-up verification request was sent two days late rather than one day late. Defendant argues that Presidents’ Day is a legal holiday and should not have been included in computing the timeliness of defendant’s denial.

In an action to obtain payment of first-party no-fault benefits, 11 NYCRR 65-3.8 provides that a no-fault insurance carrier has 30 days from the date of receipt of the claim to pay or deny a claim in whole or in part. However, the insurance carrier’s time to pay or deny a claim is extended by making a timely demand for verification. (See Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2d Dept 2009].) A claim does not have to be paid or denied until the insurance carrier has been provided with all timely demanded verification. (See New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2d Dept 2004]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2d Dept 2007].) Pursuant to 11 NYCRR 65-3.5 (b) the insurance company must request additional verification within 15 business days of the [*2]receipt of the prescribed verification forms. However, an untimely verification request will reduce the 30 calendar days wherein a claim must be denied or paid upon receipt of the requested information. (11 NYCRR 65-3.8 [j].)

The court notes that the rule specifically states business days rather than calendar days. However, the statute does not define either term. Traditionally the law has recognized the difference between a calendar day and business day (see Miuccio v Puppy City, Inc., 22 Misc 3d 1132[A], 2009 NY Slip Op 50404[U] [2009]). A calendar day is defined as a Sunday or any day of the week specifically mentioned (see General Construction Law § 19). Therefore, even a holiday would be considered a calendar day. Generally, when an act must be done within a given number of days, and the last day falls on a holiday, the time is extended{**28 Misc 3d at 829} to the next business day (see General Construction Law § 20). However, when an act must be done within a given number of “calendar” days weekends and legal holidays are not excluded in the calculation thereof.

The General Construction Law does not contain a definition of business days. In examining how the term is defined in different statutes, it generally means any calendar day except Sunday and any legal holiday (see Miuccio v Puppy City, Inc., supra). However, this definition comes into conflict with the way most courts define business days when it comes to no-fault cases, where Saturday, Sunday and holidays have generally been excluded.

Here, if the rule called for 15 calendar days, Presidents’ Day as an intervening holiday would not be excluded in calculating defendant’s verification request (General Construction Law § 20). However, since the rule specifically states that such request must be submitted within 15 business days, it appears that the legislature’s intent was to at least exclude legal holidays in calculating the number of days required to submit additional verification requests.

In the case at bar, plaintiff submitted its claim to the defendant on February 5, 2007. The court, in computing the time defendant was required to request additional verification, hereby defines business day to mean any calendar day excluding Saturday, Sunday and legal holidays. Therefore, the court agrees with the defendant that Presidents’ Day, being a legal holiday, should have been excluded in computing the time for the verification request, and as such, its request was one day late not two days late.

Accordingly, defendant’s motion to reargue and vacate the court’s order dated October 9, 2009, is hereby granted to the extent that the parties’ summary judgment motions are denied, and this matter is set down for trial on the sole issue of medical necessity.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]D
ecision Date: May 24, 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.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to (1) grant summary judgment to plaintiff Carnegie Hill Orthopedic Services, P.C., on the second and third causes of action seeking the principal sum of $9,118.76, and the Clerk is directed to judgment accordingly; and (2) grant partial summary judgment to plaintiffs on the issue of liability as to their first cause of action, and the matter remanded for apportionment between plaintiffs of the damages thereon; and, as so modified, order affirmed, with $10 costs.

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Although defendant does not dispute the total amount overdue on the first cause of action, we remand the matter to Civil Court for an apportionment of the amount owed to each respective plaintiff on that cause of action, since plaintiffs failed to establish such apportionment in their motion papers.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 17, 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 (Peter Paul Sweeney, J.), entered April 23, 2009. The order denied plaintiff’s motion for leave to enter a default judgment.

ORDERED that the order is modified by providing that plaintiff’s motion is denied with leave to renew upon proper papers; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment based upon defendant’s failure to appear or answer the complaint or, in the alternative, for an order finding for all purposes in the action that plaintiff had established a prima facie case. The motion was unopposed. The Civil Court denied the motion, and this appeal by plaintiff ensued.

In support of its motion, plaintiff proffered neither an affidavit nor a verified complaint by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted a complaint verified by counsel, who did not demonstrate personal knowledge of the facts, and an affidavit of the president of a third-party billing company, which affidavit did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers [*2]Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Andrew Carothers, M.D., P.C. v Geico Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Since plaintiff’s motion papers did not demonstrate a prima facie entitlement to judgment as a matter of law, the Civil Court properly denied the motion (see All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, plaintiff is not entitled to the alternative relief it sought, a finding for all purposes in the action that it had established its prima facie case (see e.g. B.Y., M.D., P.C. v Government Empls. Ins. Co., 26 Misc 3d 95 [App Term, 9th & 10th Jud Dists 2010]). However, in the circumstances presented, we modify the order to provide that plaintiff’s motion is denied with leave to renew upon proper papers.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 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 March 17, 2009, deemed from a judgment of the same court entered April 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 17, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $479.50.

ORDERED that the judgment is reversed without costs, the order entered March 17, 2009 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff’s commencement of a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because it was commenced before defendant had received responses to its outstanding verification requests. By order entered March 17, 2009, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from that order is deemed to be from the judgment which was [*2]subsequently entered (see CPLR 5501 [c]).

The affidavit of defendant’s claims representative established that defendant had timely mailed its request and follow-up request for verification to plaintiff (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 18 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff had failed to provide the requested verification. In opposition to defendant’s cross motion, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, under the circumstances presented, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]), and plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]). We do not reach any other issue.

Accordingly, the judgment is reversed, the order entered March 17, 2009 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice to plaintiff’s commencement of a new action.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 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 March 18, 2009, deemed from a judgment of the same court entered April 2, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 18, 2009 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,250.90.

ORDERED that the judgment is reversed without costs, the order entered March 18, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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 plaintiff’s treatments were not medically necessary, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s senior litigation examiner sufficiently established [*2]that the denial of claim forms at issue were timely mailed pursuant to defendant’s standard office practice or procedure (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 sworn peer review report and the sworn independent medical examination report by defendant’s chiropractors provided a factual basis and medical rationale for their determination that the treatments at issue were not medically necessary (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]). Consequently, defendant’s moving papers made a prima facie showing that defendant was entitled to judgment as a matter of law and shifted the burden to plaintiff to raise a triable issue of fact.

The affidavit submitted by plaintiff in opposition to defendant’s motion was insufficient to raise a triable issue of fact, as it merely consisted of a conclusory statement by the affiant, the doctor who had provided the treatments, that he reaffirmed his opinion that the disputed services were medically necessary. The affiant did not refer to, or discuss, the determination of defendant’s chiropractors. Consequently, plaintiff failed to demonstrate the existence of an issue of fact with respect to medical necessity (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]), and defendant’s motion for summary judgment should have been granted.

Accordingly, the judgment is reversed, the order entered March 18, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010