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 (Kathryn E. Freed, J.), entered December 4, 2009. 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 reversed, without costs, 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted affidavits from its claims division employees which sufficiently established that the claim denial forms had been timely mailed (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]). The affidavits further established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services underlying the second through fifth causes of action (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant, prior to the commencement of this action, had paid plaintiff the full amount to which plaintiff was entitled for these causes of action, the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action should have been granted.

Furthermore, defendant denied the bill underlying plaintiff’s first cause of action based upon a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services provided (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]). In opposition to the branch of the cross motion seeking to dismiss this cause of action, plaintiff submitted an affidavit from its licensed acupuncturist which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action should also have been granted (see A. Khodadadi Radiology, P.C., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

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

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2012

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 (Genine D. Edwards, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed from a judgment of the same court entered January 18, 2011, pursuant to the December 17, 2010 order, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing
the complaint as to services rendered from August 2, 2007 to August 9, 2007 is vacated, and that branch of defendant’s cross motion is denied.

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 as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

While defendant demonstrated, prima facie, that it had timely denied the claims at issue, by submitting an affidavit of an employee of its claims division setting forth defendant’s standard [*2]office practices and procedures for mailing denial of claim forms (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]), plaintiff’s employee’s affidavit, submitted in support of plaintiff’s motion for summary judgment, created a triable issue of fact as to whether the claim for services rendered from August 2, 2007 to August 9, 2007 had been timely denied. As a result, defendant’s motion for summary judgment dismissing the complaint should not have been granted as to that claim.

Accordingly, the judgment is reversed, so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint as to the services rendered from August 2, 2007 to August 9, 2007 is vacated, and that branch of defendant’s cross motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012

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 (Terrence C. O’Connor, J.), entered October 25, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed from a judgment of the same court entered December 15, 2011, pursuant to the order entered October 25, 2010, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

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 granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s sole argument on appeal, the record does not demonstrate the existence of a triable issue of fact as to whether defendant denied any of the claims at issue. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012

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 (Margaret A. Pui Yee Chan, J.), entered June 16, 2010. The order denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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. Plaintiff’s motion was withdrawn, and defendant’s cross motion was denied.

The affidavits submitted by defendant were sufficient to establish that defendant had timely denied plaintiff’s claim (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]) on the ground of lack of medical necessity. Defendant also submitted a peer review report, which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue, as well as an affidavit executed by the chiropractor who had performed the peer review. Contrary to the Civil Court’s finding and plaintiff’s argument on [*2]appeal, the annexed copy of the peer review report and the accompanying affidavit established, prima facie, a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]), but plaintiff failed to do so.

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

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012

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 (Terrence C. O’Connor, J.), entered October 22, 2010, deemed from a judgment of the same court entered November 15, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the October 22, 2010 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 $5,349.47.

ORDERED that the judgment is reversed, without costs, so much of the order as denied the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action and granted plaintiff’s cross motion for summary judgment is vacated, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action are 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 appeals from an order denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, [*2]from which we deem the appeal to have been taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled independent medical examinations (IMEs) of plaintiff’s assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with NCEI’s standard office practices and procedures (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]). Defendant also submitted an affidavit from its examining chiropractor/acupuncturist, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff failed to raise a triable issue of fact, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action should have been granted and the branches of plaintiff’s cross motion seeking summary judgment on those causes of action should have been denied.

The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it 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]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order as denied the branches of defendant’s motion for summary judgment seeking to dismiss the first, second, fourth and fifth causes of action and granted plaintiff’s cross motion for summary judgment is vacated, the branches of defendant’s motion seeking summary judgment dismissing the first, second, fourth and fifth causes of action are granted, and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012

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 (Anna Culley, J.), entered June 15, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 15, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to the motion, plaintiff demonstrated that there was a triable [*2]issue of fact as to whether the supplies at issue were medically necessary (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the judgment is reversed, the order granting defendant’s motion for summary judgment dismissing the complaint is vacated and the motion is denied.
Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 11, 2012

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 (Margaret A. Pui Yee Chan, J.), entered October 23, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the complaint as to services rendered to Natalia Agudelo from September 11, 2006 to November 16, 2006 and as to services rendered to Maria Salazar from November 11, 2006 to November 15, 2006.

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

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the complaint as to services rendered to Natalia Agudelo from September 11, 2006 to November 16, 2006 and as to services rendered to Maria Salazar from November 11, 2006 to November 15, 2006, implicitly finding that defendant had timely denied these claims based upon the workers’ compensation fee schedule.

Plaintiff’s argument that defendant failed to demonstrate that it had fully paid plaintiff for [*2]the acupuncture services at issue in accordance with the workers’ compensation fee schedule lacks merit. Plaintiff’s remaining contention is, as plaintiff concedes, based upon material that is dehors the record, and will not be considered.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: May 11, 2012