Nassau Dist Ct, First District

10218/09

Amos Weinberg, Esq. – Plaintiff

John E. McCormack, Esq. – Defendant

Fred J. Hirsh, J.

Defendant Progressive Insurance Company (“Progressive”) moves for an order compelling Valadimir Alexsandrovich (“Alexsandrovich”) to appear for a deposition and answer questions concerning Bener Wholesale (“Bener”) and to provide actual documented costs of material supplied, alternatively for an order dismissing this action on the grounds plaintiff has wilfully refused to comply with defendant’s discovery demands or alternatively an order precluding plaintiff from producing evidence at trial as a result of its wilful failure to comply with defendant’s discovery demands.

BACKGROUND

This action raises issues about the extent to which a defendant can obtain discovery on defenses a defendant may be precluded from raising at a trial of an action for seeking payment of first party no-fault benefits.

Alev Medical Supply, Inc. (“Alev”) is in the business providing medical equipment and supplies. Alev commenced this action seeking to obtain payment of first party no-fault benefits for medical supplies it provided to Jason Bailey (“Bailey”).

Defendant served a discovery demand dated May 19, 2009. The demand seeks, inter alia, information regarding the amounts paid by Alev to the supplier of the medical equipment for the equipment furnished to Bailey.

Defendant also served a demand for interrogatories and a demand to take a deposition of a representative of Alev.

Progressive asserts its has conducted an investigation and believes Alev is part of a scheme involving an entity known as Bener Wholesale, Inc. (“Bener”) devised to defraud insurance companies.

Progressive claims that Bener does not really exist. Progressive asserts Bener was formed to generate invoices for medical supplies and equipment so Alev and other providers of medical equipment could bill no-fault and other insurance carriers.

Progressive seeks discovery primarily on its assertion that Bener does not exist [*2]and has not been selling medical equipment to Alev.

Progressive has sent an investigator to the addresses listed on invoices it has obtained through verification and has discovered Bener does not maintain any offices or other facilities at those locations.

Progressive does not indicate whether it has ever sent an investigator to the address Bener listed in its Certificate of Incorporation as the address to which the Secretary of State should mail process made upon the Secretary of State as statutory agent for process for Bener.

Progressive is essentially raising defenses of fraud and bills not in accordance with the no-fault payment schedule.

DISCUSSION

The No-Fault Law provides the provider of medical services and/or supplies shall be paid the amount “…the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents.” Insurance Law §5108(a). A provider of medical equipment is permitted to charge a no-fault insurance carrier 150% of the documented cost of the equipment to the provider. 11 NYCRR 68 Part E (b)(1).

Translated into this action, Alev would be permitted to bill Progressive and Progressive would be would required to pay Alev 150% of the amount Alev paid to Bener or any other wholesale supplier of medical equipment for the equipment it provided to Bailey. Therefore, the amount Alev paid to Bener or any other medical supplier would appear at first glance to be relevant to this action.

However, this is an action to obtain payment of first party no-fault benefits. Unless a no-fault carrier seeks verification [11 NYCRR 3.5], 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. 11 NYCRR 65-3.8. A no-fault insurance carrier who fails to deny a claim within 30 days of receipt is precluded from asserting most defenses to the claim. A no-fault insurance carrier is also precluded from asserting at the trial of an action any precludable defense not asserted in a timely denial. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Diseases v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007); and Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, rearg. denied 90 NY2d 937 (1997).^[FN1] Fraud and charges not in accordance with the worker’s compensation fee schedule are [*3]defenses the carrier is precluded from asserting unless raised in a timely served denial. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., supra; New York Hosp. Medical Center of Queens v. Country-Wide Ins. Co., 295 AD2d 583 (2nd Dept. 2002); Davydov v. Progressive Ins. Co., 25 Misc 3d 19 (App. Term 2nd & 11th Jud. Dist. 2009); and Lincoln General Ins. Co. v. Alev Medical Supply Inc., 25 Misc 3d 1019 (Dist. Ct. Nassau Co. 2009).

If Progressive did not deny the claim submitted by Alev on the grounds of fraud or charges not in accordance with the no-fault schedule in a timely denial, Progressive is precluded from raising those defenses at trial.

The no-fault regulations provide an insurance carrier with the ability to investigate a claim prior to paying or denying the claim by demanding written verification [11 NYCRR 65 – 3.5] and/or an examination under oath [11 NYCRR 65-1.1]. The insurance carrier’s time to pay or deny a claim is extended by making a timely demand for verification. Infinity Health Products, Ltd. v. Eveready Ins. Co., 67 AD3d 862 (2nd Dept. 2009). A claim does not have to be paid or denied until the insurance carrier has been provided with all timely demanded verification. Mount Sinai Hosp. v. Chubb Group of Insurance Companies, 43 AD3d 899 (2nd Dept. 2007); and New York & Presbyterian Hosp. v. Progressive Cas. Ins. Co., 5 AD3d 569 (2nd Dept. 2004).

The entire purpose of the verification process is to provide the insurance carrier with the opportunity to seek additional information and time to review a claim before the carrier is required to pay or deny the claim. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., supra.

CPLR 3101(a) provides for full disclosure by a party to an action of “… all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof.”

Material demanded in discovery is “material and relevant” for the purposes of CPLR 3101(a) if the demanded matter, “…will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406 (1968). The demanded material must be produced if it can be used as evidence in chief, for rebuttal or for cross-examination. Allen v. Crowell-Collier Publishing Co., Id.; and Wind v. Eli Lilly & Co., 164 AD2d 885 (2nd Dept. 1990).

The party demanding discovery has the burden of establishing the production of the demanded material will lead to the discovery of evidence relevant to the action. Crazytown Furniture, Inc. v. Brooklyn Union Gas Co., 150 AD2d 420 (2nd Dept. 1989); Carp v. Marcus, 116 AD2d 854 (3rd Dept., 1986); and Herbst v. Bruhn, 106 AD2d 546 (2nd Dept., 1984).

To determine whether Progressive is permitted discovery on the issue of fraud or billing in excess of the amount permitted by the no-fault law and regulation, the court must know whether the claim was timely denied and the basis for the denial. If the claim made by Alev was not denied on the grounds of fraud or billing in excess of the amount permitted by the no-fault law and regulations, Progressive is precluded from raising those defenses at trial. Discovery cannot be obtained regarding matters that will not be in issue at trial. Since the defendant has not provided the court with copies of either the claims or the denials, the court cannot determine on the present record [*4]whether the material defendant seeks is subject to discovery.

Furthermore, the court believes Progressive is seeking discovery that cannot be obtained in the manner demanded. Progressive is seeking discovery from a party regarding a non-party. Bener is not a party to this action.

CPLR 3101(a)(4) permits a party to an action to obtain disclosure from a non- party “…upon notice stating the circumstances or reasons such disclosure is sought or required.”CPLR 3120 permits a party to an action to obtain discovery of documents from a non-party upon service of a notice to produce and a subpoena duces tecum.

The party seeking a deposition of a non-party must demonstrate special circumstances. Brooklyn Floor Maintenance Co. v. Providence Washington Ins. Co., 296 AD2d 520 (2nd Dept. 2002); and CPLR 3101(a)(4).

The motion specifically seeks the deposition of Valadimir Alexsandrovich to answer questions regarding Bener. The court cannot order a person who has not been subpoenaed to appear and give testimony regarding a non-party. If Progressive wants to obtain discovery from Bener, it must do so through subpoena.

Finally, the court notes many of the questions posed in the interrogatories relate to a Malella defense.^[FN2] CPLR 3018(b) requires a party to plead all matters that would likely take an adverse party by surprise or that would not appear on the face of the pleading. A Malella defense must be plead as an affirmative defense. New York First Acupuncture P.C. v. State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134(A) (App Term2nd, 11th & 13th Jud. Dists. 2009). The answer does not plead a Malella defense in its answer.

Malella does not apply to the claim asserted in this action. The principle underlying Malella is that only a licensed professional can be officer, shareholder or director of a professional corporation, a partner in a professional limited liability partnership or a manager of a professional limited liability company. The “fraudulent incorporation” element of Malella is that a non-professional has the actual ownership or controlling interest in such a business entity that only a licensed professional can own.

Alev is the provider of medical supplies. Defendant has failed to establish that the owner of a medical supply company must have a license. In fact, it would appear to the contrary since Alev is a domestic, business corporation.

Thus, to the extent defendant seeks material that cannot be in issue in this litigation, the discover demands are palpably improper. Saratoga Harness Racing, Inc. v. Roemer, 274 AD2d 887 (3rd Dept. 2000); and Titleserv, Inc. v. Zenobio, 210 AD2d 314 (2nd Dept. 2000); and Grossman v. Lacoff, 168 AD2d 484 (2nd Dept.,1990).

The no-fault law is designed to insure prompt payment of claims of medical claims arising from automobile accidents. Medical Society of the State of New York v. Serio, 100 NY2d 854, 860 (2003). See, Fair Price Medical Supply Corp. v. Travelers Indemnity Co., supra; and Hospital for Joint Disease v. Travelers Property Casualty Ins. Co., supra.

Permitting a defendant to conduct discovery on defenses it is precluded from raising at [*5]trial would defeat this goal.

Therefore, defendant’s motion is denied with leave to renew upon proper papers including a copy of the claim and a copy of the denial.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: May 3, 2010

Footnotes

Footnote 1:There are four defenses a carrier can raise that are not subject to the preclusion rule: (1) fraudulent incorporation, [State Farm Mutual Ins. Co. v. Malella, 4 NY3d 313 (2005)], (2) lack of coverage, [Central General Hosp. v. Chubb Group of Ins. Cos., 90 NY2d 195 (1997)], (3) staged accident [Central General Hosp. v. Chubb Group of Ins. Cos., supra; Allstate Ins. Co. v. Massre, 14 AD3d 610 (2nd Dept. 2005); and V.S. Medical Services P.C. v. Allstate Ins. Co., 11 Misc 3d 334 (Civil Ct. Kings Co. 2006)] and (4) exhaustion of coverage [Hospital for Joint Disease v. Hertz Corp., 22 AD3d 724 (2nd Dept.2005); and Hospital for Joint Disease v. State Farm Mut. Auto. Ins. Co., 8 AD3d 533 (2nd Dept. 2004)].

Footnote 2:The names of the shareholders and owners in a management company and the services provided by the management company are Mallela issues.

Civil Court of the City of New York, Richmond County

08R014639

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001

Katherine A. Levine, J.

Plaintiff Anthony Mandracchia, D.C. (“plaintiff”), a medical service provider, brings this action pursuant to Insurance Law § 5106(a) to recover $320.30 for services it provided to its assignor, Dwayne Loftin (“assignor”), for injuries he allegedly sustained in an automobile accident. Defendant Allstate Insurance Co. (“defendant”) moves to dismiss pursuant to CPLR § 3211 or, in the alternative, for summary judgment pursuant to CPLR § 3212 on the grounds that the instant action is barred by the six (6) year Statute of Limitation. Plaintiff opposes the motion.

Pursuant to Insurance Law § 5106, a complete proof of claim is a prerequisite to receiving no-fault benefits. Under the old regulations applicable to insurance policies issued before April 5, 2002, the written proof of claim must be submitted to the insurance company “as soon as reasonably practicable, but in no event later than 180 days after the date services are rendered or 180 days after the date written notice was given to the insurer. 11 NYCRR 65.12. See Rockman v. Clarendon, 2008 NY Slip Op 52093 (U), 21 Misc 3d 1118(A) (Civil Ct., Richmond Co. 2008) citing Montefiore Medical Center v. Mary Immaculate Hospital, 9 AD3d 354 (2d Dept. 2004). Within 30 days of receiving the claim, an insurer shall either pay or deny the claim in whole or in part. See 11 NYCRR 65.15(g)(3). In the event an insurer fails to timely deny a claim or request verification from the provider, the insurer is precluded from asserting that the claim was untimely or incomplete. Presbyterian Hosp. In City of NY v. Maryland Cas. Co., 90 NY2d 274, 282 (1997); Montefiore Medical Center v. NY Cent. Mut. Fire Ins. Co., 9 AD3d 354, 355 (2d Dept. 2004); NY Hosp. Med. Ctr. Of Queens v. Country-Wide Ins. Co., 295 AD2d 583 (2d Dept. 2002).

An action to recover first party benefits owed under an insurance policy is viewed as a breach of contract governed by the six year statute of limitations contained in CPLR 213(2). Alleviation Supplies, Inc. v Enterprise Rent-A-Car, 12 Misc 3d 787, 791 (Civil Ct., Richmond Co. 2006). See, Benson v. Boston Old Colony, 134 AD2d 214, 215 (1st Dept. 1987); Spring World Acupuncture, PC. V. NYC Transit Authority ., 24 Misc 3d 39 (2009). In contract cases, the cause of action accrues ,and the statute of limitations begins to run at the time of the breach.Micha v. Merchants Mutual Ins. Co., 94 AD2d 835, 836 ( 2d Dept. 1983). [*2]

In no fault actions, a defendant insurer’s contractual obligation to pay the first party benefits arises after it receives the claim. As set forth above, pursuant to Insurance Law §5106, an insurer must either pay or deny the claim within 30 days of submission of proof or the bill becomes overdue. The cause of action thus accrues once the claim is overdue. In Line Chiropractic v. MVAIC, 2005 NY Slip Op 50275U, 6 Misc 3d 1032A (Civil Ct, Bronx Co. 2005), and the statute of limitations thus commences either upon the denial of the claim or, if the thirty days after the submission of plaintiff’s proof of claim. Mandarino v. Travelers Prop. Cas. Ins. Co., 37 AD3d 775 (2nd Dept. 2007); Micha v. Merchants Mut. Ins. Co., 94 AD2d 835, 836 (3d Dept. 1983), citing Insurance Law 675(1); Chester Medical Diagnostic v. Kemper Casualty Ins. Co., 2008 NY Slip Op. 52009(U), 21 Misc 3d 1108(A) (Civil Ct., Kings Co. 2008).

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. Cimino v. Dembeck,61 AD3d 802 (2d Dept. 2009). See, Swift v New York Med. Coll., 25 AD3d 686, 687 ( 2d Dept. 2006). “In order to make a prima facie showing, the defendant must establish, inter alia, when the plaintiff’s cause of action accrued” (Swift v New York Med. Coll., 25 AD3d at 687). Furthermore, in deciding a CPLR 3211 motion to dismiss, “a court must take the allegations in the complaint as true and resolve all inferences ] in favor of the plaintiff” Cimino, supra, (Sabadie v Burke, 47 AD3d 913, 914,(2d Dept. 2008).

On a motion for summary judgment, a court may consider evidence contained in documents supplied by a party to the court. See Kwiecinski v. Chung Hwang, 2009 NY Slip Op 06630, 2009 NY App. Div. LEXIS 6503 (3d Dept. 2009); Sonnenfeldt v. Kyriakoudes, 226 AD2d 286 (1 Dept. 1996) citing Central Petroleum Corp. v. Kyriakoudes, 121 AD2d 165 (1st Dept. 1986). A court may utilize these admissions as evidence upon which it can make findings of fact. Potamkin Cadillac Corp. v. BRI Coverage Corp., 38 F3d 627 (2d Cir. 1994); Freemantle v. U.S. Hoffman Machinery Corp., 2 AD2d 634 (3d Dept. 1956)(statements in answers to interrogatories or in proposed findings of fact are admissions against the party that made them); Bertha Building Corp. v. National Theatres Corp., 248 F.2d 833, 836 (1957).

Plaintiff has annexed to its complaint a ledger providing the particulars of the assignor’s bill, including the date of accident and the date of service of August 25, 1998. The complaint avers that “the bill was received timely”; i.e. that plaintiff submitted the bill to Allstate within 180 days. The complaint also avers that more than 30 days have passed since the bill was submitted and that defendant failed to properly deny the bill within 30 days of receipt. Given these admissions, the court follows the rational of Pinnacle Open MRI, PC., v. Republic Western Insurance Co., 18 Misc 3d 626 (Dist. Ct., Nassau Co. 2008), in determining the latest date by which plaintiff could have commenced the lawsuit and be timely. In Pinnacle, the defendant insurer averred that it did not have the NF-3 claim form filed with it by the plaintiff, although it did not deny its receipt. The court therefore used the date of service, added the additional 180 days that plaintiff had to file the claim, and then added the maximum of 30 days in which the insurer had in which to pay or deny the claim to determine the day that plaintiff’s cause of action ripened.

Utilizing this formula, plaintiff would be barred by the six year statute of limitations from [*3]bringing this action. Adding the additional 180 days to the date of service – August 25, 1998- and then adding an additional 30 days in which the insurer had to pay or deny the claim – bring the date that the claim became overdue to March 23, 1999. Since plaintiff admits that the service of the summons and complaint upon defendant was completed on August 6, 2008 ( see proposed judgment and attorney’s affirmation of plaintiff’s counsel dated October 6, 2008 annexed to defendant’s motion as Exhibit “B”) it is clear that the instant action was commenced way beyond the six year statute of limitations. As such, the complaint is dismissed.

The foregoing constitutes the order and decision of the court.

Dated: April 28, 2010_____________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

ASN by_________on________

A P P E A R A N C E S:

Attorneys for Plaintiff:

Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

Attorneys for Defendant:

Peter C. Merani, P.C.

298 Fifth Avenue, 3rd Floor

New York, NY 10001

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 April 28, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

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 the motion and the cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it had timely and properly denied the claims at issue after requesting that plaintiff appear for an examination under oath (EUO), and held that “the sole issue remaining to be determined at trial is the EUO no-show as a proper basis of denial” (see CPLR 3212 [g]). Defendant appeals from so much of the order as denied its cross motion for summary judgment.

In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs (see 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 appearance of the eligible injured person’s assignee at an EUO upon a proper request 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 at [*2]722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]).

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) findings that the EUO requests were mailed and that the claims were timely denied, from which no appeal has been taken by plaintiff, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 16, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $11,220.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered in favor of defendant dismissing the complaint.

Plaintiff Specialty Surgical Services commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $11,220. The instant appeal by defendant ensued.

Defendant’s contention, that plaintiff lacks standing since the assignment executed by plaintiff’s assignor was in favor of North Jersey Center for Surgery rather than plaintiff, lacks merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. Consequently, defendant is precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]).

At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, Inc., 45 NY2d 493 [1978]; S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A]; 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]; see also 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]; 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]).

LaCava and Iannacci, JJ., concur.

Molia, J.P., taking no part.
Decision Date: April 16, 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 (Margaret A. Pui Yee Chan, J.), entered March 12, 2009. The order, insofar as appealed from, denied without prejudice defendant’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision denying without prejudice defendant’s motion for summary judgment is stricken and defendant’s motion for summary judgment 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 plaintiff fails 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 grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court denied without prejudice both the motion and cross motion. Defendant appeals from so much of the order as denied without prejudice its motion for summary judgment.

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]; 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 [*2]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, contrary to plaintiff’s contention, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that plaintiff’s assignor was acting as an employee at the time of the accident and that therefore workers’ compensation benefits were 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 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]).

Defendant’s motion should not have been denied without prejudice but, rather, should have been held 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 LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752). Accordingly, we reverse the order, insofar as appealed from.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 13, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 26, 2008. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for dismissal of the complaint on the ground of res judicata (CPLR 3211 [a] [5]). Defendant argued that plaintiffs had previously commenced an identical action, which had been dismissed pursuant to CPLR 3126 (3) for plaintiffs’ failure to comply with a discovery order. Defendant appeals from the denial of its motion.

“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action” (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51552[U] [App Term, 2d & 11th Jud Dists 2008]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). Plaintiffs’ prior action was dismissed pursuant to CPLR 3126 (3), but the dismissal order did not state that the dismissal was with prejudice, nor does a review of the record reveal the existence of a preclusion order. Consequently, plaintiffs were not barred from [*2]commencing a second action. Accordingly, the District Court properly denied defendant’s pre-answer motion to dismiss the complaint based on the doctrine of res judicata.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: April 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 (Timothy Dufficy, J.), entered December 17, 2007. 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, finding, pursuant to CPLR 3212 (g), that plaintiff had proved the submission of its claim forms and that defendant had demonstrated that it had timely denied the claims based upon a peer review report, and declaring that medical necessity remained the sole issue for trial.

Defendant appeals from so much of the order as denied its cross motion for summary judgment, arguing that it established prima facie that the supplies billed for were not medically necessary and that plaintiff failed to rebut that showing. Plaintiff concedes the timeliness of defendant’s denials and that defendant’s affirmed peer review report raises a triable issue of fact as to medical necessity, but argues that the matter should not be resolved on a motion for summary judgment because a triable issue as to medical necessity exists.

Contrary to plaintiff’s contentions, once defendant submitted an affirmed peer review report that set forth a factual basis and medical rationale for its peer reviewer’s opinion that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question, shifting the burden to plaintiff to rebut defendant’s showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut defendant’s evidence, defendant was entitled to summary judgment, and its cross motion should have been granted (see e.g. 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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 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 February 3, 2009, deemed from a judgment of the same court entered March 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 3, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,099.94.

ORDERED that the judgment is reversed without costs, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross 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]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant submitted an affidavit by its litigation specialist which established that the letters scheduling the IMEs had been timely sent pursuant to defendant’s standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thereafter, defendant submitted a supplemental affirmation, pursuant to the instructions of the Civil Court, from its examining physician. The physician stated therein that plaintiff’s assignor had failed to appear for scheduled IMEs. As a result, defendant established its prima facie case. Accordingly, the judgment is reversed, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the [*2]complaint is granted.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 09, 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 October 27, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant’s cross motion for summary judgment as sought dismissal of the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter of defendant’s cross motion.

In this action by a provider seeking assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment
dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court denied both plaintiff’s motion and defendant’s cross motion, finding that the sole issue for trial was the medical necessity of the supplies provided. Defendant appeals, arguing that its cross motion for summary judgment dismissing the complaint should have been granted because the doctor’s affirmation submitted by plaintiff in opposition to defendant’s cross motion was not in admissible form and was otherwise insufficient to rebut defendant’s peer review report.

We find that plaintiff’s doctor’s “affirmation” submitted in opposition to defendant’s cross motion, if admissible, is sufficient to demonstrate a triable issue of fact as to medical necessity. However, defendant argued, before the Civil Court and on appeal, that plaintiff’s doctor’s “affirmation” is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of plaintiff’s doctor’s affirmation and for a new determination thereafter of defendant’s cross motion.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: April 09, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2008. The judgment, entered pursuant to an order of the same court dated April 30, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $3,553.29.

ORDERED that the judgment is reversed without costs, the order dated April 30, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order dated April 30, 2008, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant appeals from the judgment which was entered, pursuant to the Civil Court’s order, on July 30, 2008, awarding plaintiff the sum of $3,553.29.

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]). Defendant’s assertion that plaintiff failed to prove submission of its claims to defendant lacks merit. Consequently, plaintiff established its prima facie entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. [*2](67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

Accordingly, the judgment is reversed, the order dated April 30, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 09, 2010