SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial.

ORDERED that the appeal is dismissed as academic.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT). Subsequent to the entry of the November 18, 2010 order, the Civil Court dismissed the complaint. The dismissal of the [*2]complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 8, 2013

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Abrams, Cohen & Associates, New York City (Barry Cohen of counsel), for respondent.

{**39 Misc 3d at 10} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT).

Plaintiff was required, but failed, to challenge the propriety of defendant’s discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff{**39 Misc 3d at 11} is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d{**39 Misc 3d at 12} 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Pursuant to CPLR 3124, if a party fails to respond to or comply with any request, notice, interrogatory, demand or order under article 31 of the CPLR, the party seeking disclosure may move to compel compliance (see also CPLR 3126). There is no requirement upon the movant other than to show that no response had been received. Thus, in the case at bar, defendant was not required to demonstrate that its discovery demands were not palpably improper. Rather, in order to successfully oppose defendant’s cross motion to compel, plaintiff would have had to show that defendant’s defense of billing fraud was precluded because it was not asserted in a timely NF-10 denial of claim form, which plaintiff did not do.

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). In addition, defendant is entitled to an EBT of Vladimir Grinberg (see CPLR 3101 [a]; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [2008]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment (see CPLR 3212 [f]) and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an EBT.

Accordingly, the order is affirmed.

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered February 23, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Plaintiff’s assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), and the defense of a lack of medical necessity for the rendered services can be precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey (see Matter of Allstate Ins. Co. [Stolarz – New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]).

Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 27 Misc 3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff’s motion for summary judgment should have been denied.

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur. [*3]
Decision Date: February 01, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered February 3, 2011 which granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law. Subsequent to the entry of the February 3, 2011 order, the Civil Court entered an order dismissing the complaint. The dismissal of the complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc [*2]3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered January 13, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The appeal is deemed to be from a judgment of the same court entered February 4, 2011 awarding plaintiff the principal sum of $1,780.19 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant [*2]appeals from so much of an order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]; see also All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]) plaintiff’s claims for dates of service December 18, 2008 and May 18, 2009 on the ground of lack of medical necessity. Defendant also annexed an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report and the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009 should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 4, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order that denied its motion for summary judgment and granted defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

For the reasons stated in D & R Med. Supply v American Tr. Ins. Co. (32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: February 01, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Robert R. Reed, J.), entered April 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered April 18, 2011, affirmed, with $10 costs.

We sustain the denial of defendant’s motion for summary judgment dismissing this first-party no-fault action. Defendant’s June 26, 2008 request for additional verification in the form of an examination under oath (EUO) of the plaintiff medical provider was untimely and did not serve to toll defendant’s time to pay or deny the claim, since the request was made well beyond the requisite 15-day time period following the assignor’s EUO (see 11 NYCRR 65-3.5[b]; 65—3.8[a][1]; see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 17-18 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013