Civil Court of the City of New York, Kings County

046391/10

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

ATTORNEYS FOR PLAINTIFF:

Gary Tsirelman, P.C.

65 Jay Street, Third Floor

Brooklyn, NY 11201

ATTORNEYS FOR DEFENDANT:

Iseman, Cunningham, Riester & Hyde, LLP

2649 South Road, Suite 230

Poughkeepsie, New York 12601

Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion

PapersNumbered

Notice of Motion and Affidavits Annexed………….. …………………………1

Notice of Cross-Motion and Affidavits Annexed.. ………………………….

Answering Affidavits………………………………………………………………….. .2

Replying Affidavit of defendant…………………………………………………….3

Exhibits………………………………………………………………………………………..

Other: ………………………………………………………………………………………….

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

This case presents raises a new twist to previous rulings that the notification requirements for verification requests, as contained in 11 NYCRR §§65-3.5 and 3.6, do not apply to examinations under oath (“EUOs”) that are scheduled prior to the insurance company’s receipt of claim forms (“pre claim EUO”).

Defendant Hartford Insurance Co. (“defendant” or “Hartford”) seeks summary judgment [*2]based upon the assignor’s failure to appear at both a pre-claim EUO, which was adjourned on consent, and an EUO noticed and scheduled subsequent to defendant’s receipt of the claim which, under precedent, triggers strict regulatory time deadlines for compliance with verification requests. Plaintiff Lender Medical Supply, Inc. (“plaintiff” or “Lender”) opposes defendant’s motion on the grounds that since the first scheduled EUO was adjourned on consent, defendant had to request that the assignor appear for two other EUOs, pursuant to 11 NYCRR §65-3.6(b), before it could deny the claim, which it failed to do.

Lender provided medical equipment to its assignor on September 18, 2009. Hartford, by letter dated October 9, 2009, scheduled the assignor for an EUO to be held on November 10, 2009. On October 23, 2009, after it had sent the EUO request but prior to the scheduled date of the EUO, Hartford received the claim from plaintiff. Defendant granted the assignor’s request for an adjournment by letter dated November 10, 2009 and rescheduled the assignor’s EUO for November 17, 2009. After the assignor failed to appear at the rescheduled EUO, the defendant issued a denial dated December 8, 2009 based upon the assignor’s failure to appear for both EUOs.

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person …shall…as may reasonably be required submit to examinations under oath by any person named by the [insurer] and subscribe the same[11 NYCRR §65 – 1.1(d) [Sec. I. Conditions, Proof of Claim (b)]. Another condition to coverage under this section sets forth that an eligible person shall submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.”

11 NYCRR §65-3.5 details the verification procedures to be followed after the insurer receives the completed application for no fault benefits (NYS form N-F2). The insurance regulations provide for EUOs and IMEs as part of an insurer’s “entitlement to additional verification” following receipt of a provider’s statutory claim forms. Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc 3d 18, 19 (App. Term. 2d Dept. 2004), aff’d in pert part 35 AD3d 720 (2d Dept. 2006). See also, All-Boro Medical Supplies, Inc. v Progressive Ins. Co., 20 Misc 3d 554 (Civil Ct., Kings Co,. 2008); Lumbermen’s Mutual Casualty Company v. Inwood Hill Medical P.C., et al, 2005 NY Slip Op 51101(U), 8 Misc 3d 1014(A) (Sup. Ct., NY Co. 2005). An insurer may toll the 30 day period it has in which to deny a claim by properly requesting verification within 15 days from the receipt of the proof of claim form or bill (11 NYCRR §65.3.5). See, Psych. & Massage Therapy Assoc., PLLC v. Progressive Casualty Ins. Co., 5 Misc 3d 723 (Civ Ct. Queens Co., 2004).

Where an EUO is requested as additional verification after receipt of the claim, the insurer must schedule an EUO within a reasonable time frame and as “expeditiously as possible.” Eagle Surgical Supply, Inc. v. Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 (App. Term, 2d Dept. 2008). See Bayside Rehab. & Physical Therapy P.C. v. GEICO, 24 Misc 3d 542, 546 (Civil Ct., Richmond Co. 2009). If the “requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested., either by a telephone call or [*3]by mail. 11 NYCRR § 65-3.6(b). “A claim need not be paid or denied until all demanded verification is provided.” New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 569, 570 (2d Dept. 2004). See, Insurance Law § 5106(a); 11 NYCRR §§65-3.5(c), 65-3.8(a)(1).

Failure to submit a timely follow up request will void the tolling provisions of the time in which to submit a denial and will preclude a defendant from asserting the defense based on failure to produce requested verification, including failure to appear for a post-claim EUO. See, All-Boro Medical Supplies supra at 557; Kings Medical Supply Inc. v. Kemper Auto & Home Ins. Co., 2005 NY Slip Op 51450(U), 7 Misc 3d 128(A) (App. Term, 2 & 11th Dist. 2005). Therefore, in order for an insurer to predicate its denial based upon an assignor’s failure to appear for a post-claim EUO, it must prove that it sent both an original and follow up request and that the injured party failed to appear for both scheduled EUOs. See, Advanced Medical, P.C. v. Utica Mutual Ins. Co., 2009 NY Slip Op 51023(U), 23 Misc 3d 141(A) (App. Term, 2d Dept. 2009).

The detailed and narrowly construed verification procedures contained in 11 NYCRR 65-1.1(d) and 65-3.5(d) governing EUOs that are requested after receipt of a claim do not apply to EUO demands prior to the submission of a claim form. See Stephen Fogel Psychological, P.C. v. Progressive Ins. Co., 7 Misc 3d 18, 21 (App. Term, 2nd Dept. 2004). The right to an EUO prior to an insurer’s receipt of the claim is “not afforded by the verification procedures and timetables,” but rather by the mandatory personal injury protection, “which is independent of the verification procedures.” Id at 21. Furthermore, these detailed verification procedures are “not amenable to application at a stage prior to the submission of a claim form.” Id, at 21. See, Prime Psychological Services, P.C. (Ortiz) v. Nationwide Property and Cas. Ins. Co., 24 Misc 3d 230 (Civil Ct., Richmond Co. 2009) (an insurer not required to send EUO requests to the provider’s attorney for a pre claim EUO); Bayside Rehab., supra, an insurer need not notify the assignee medical services provider of pre claim IME cut off notice).

Therefore, an insurer is not obligated to send out a follow up request after an assignor failed to appears for a pre-claim EUO.^[FN1] Prime Psychological Services (Horne) v ELRAC, 2009 NY Slip Op 52579(U), 25 Misc 3d 1244(A) (Civil Ct., Richmond Co. 2009). It can properly deny the claim, retroactive to the date of loss, for the assignor’s failure to attend the one pre-claim scheduled IME so long as it mails the denial within 30 days of its receipt of the claim. Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 (2d Dept. 2006); Amaze Medical Supply, Inc., 2006 NY Slip Op 50909(U), 12 Misc 3d 127(A) (App. Term, 2d Dept. 2006); Prime Psychological (Horne), supra; All-Boro, supra. [*4]

Here, defendant cannot deny the claim based upon the assignor’s failure to attend the EUO that was scheduled prior to defendant’s receipt of the claim. By letter dated November 10, 2009 defendant’s attorney confirmed that at the request of the assignor’s attorney, the EUO was adjourned and that Hartford would provide his client with one final opportunity to appear for an EUO on November 17, 2009. Defendant’s consent to the adjournment vitiated its right to count the assignor’s failure to appear at the EUO as a no show. See Vitality Chiropractic, P.C..v . Kemper, 14 Misc 3d 94 (App. Term, 2d Dept. 2006)(mutually agreed upon rescheduling of initial IME is not equivalent of failure to supply requested verification.)

Furthermore, once defendant received the claim from the plaintiff, it was required to adhere to statutory and regulatory scheme of verification for the processing of no-fault claims. All-Boro Medical Supplies, supra, 20 Misc 3d at 556-557. Thus, defendant was required to send a follow-up request for an EUO pursuant to 11 NYCRR §65-3.6(b), once the assignor failed to appear for the scheduled November 17th date. Having failed to issue a follow up request, defendant could not assert, as a matter of law, the assignor’s failure to appear for the EUO as its basis to deny the claim. See, All- Boro, supra at 557.

Accordingly, defendant’s motion for summary judgment is denied and the case is to proceed to trial.

The foregoing shall constitute the Decision and Order of the Court.

Dated: May 01, 2012___________________________

Katherine A. LevineJudge, Civil Court

Footnotes

Footnote 1:Insurer could have properly denied plaintiff’s claim upon plaintiff’s failure to show up for a pre-claim EUO as a violation of a condition precedent to coverage. See Neomy Medical, P.C. v. American Transit Ins. Co., 2011 NY Slip Op 50536(U), 31 Misc 3d 1208(A)(Civ. Ct., 2011).

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 (Devin P. Cohen, J.), entered July 28, 2010. The order denied defendant’s motion to vacate an order entered December 8, 2009 which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered August 16, 2010 dismissing the complaint (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted on default inasmuch as the court refused to consider defendant’s opposing papers as well as its cross motion for summary judgment dismissing the complaint because, while the cross motion and opposing papers had been served 21 days before the return date of the motion, they were untimely pursuant to a briefing schedule set by the Civil Court. Defendant appeals from an order entered July 28, 2010 which denied its motion to vacate the default order entered December 8, 2009 and, upon vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment.
We deem the appeal to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

The Civil Court’s denial of defendant’s motion was premised upon the fact that the order which had granted plaintiff’s motion on default had already determined that defendant’s untimely [*2]papers should not be considered. However, where, as here, a defendant is seeking to vacate an order entered on default, relief may be granted upon a showing that there was a reasonable excuse for the default and that the defendant has a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]). In the instant case, defendant proffered a reasonable excuse for its failure to timely submit its opposing papers and cross motion, and also set forth a meritorious defense to the action. Accordingly, the judgment is reversed, the order entered July 28, 2010 is vacated, defendant’s motion to vacate the order entered December 8, 2009, which had granted, as unopposed, plaintiff’s motion for summary judgment and had refused to consider, on the ground of untimeliness, defendant’s cross motion for summary judgment dismissing the complaint, and, upon such vacatur, for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint is granted, and plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint are remitted to the Civil Court for a new determination.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012

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

Appeals from orders of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 6, 2010 and December 20, 2010. The order entered October 6, 2010 granted plaintiff’s unopposed motion for summary judgment. The order entered December 20, 2010 denied defendant’s motion to vacate the order entered October 6, 2010 and, upon such vacatur, to deny plaintiff’s motion for summary judgment. The appeal from the order entered December 20, 2010 is deemed to be from a judgment of the same court entered January 4, 2011 awarding plaintiff the principal sum of $9,697.56 (see CPLR 5512 [a]).

ORDERED that the appeal from the order entered October 6, 2010 is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from, among other things, an order of the Civil Court entered December 20, 2010 which denied defendant’s motion to vacate a prior order entered October 6, 2010 granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s motion for summary judgment. We deem the appeal from the order entered December 20, 2010 to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

A defendant seeking to vacate an order entered on default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). In the instant case, defendant’s moving papers failed to proffer, let alone establish, a reasonable excuse for the default. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012

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

Appeals from orders of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 7, 2010 and December 20, 2010. The order entered October 7, 2010 granted plaintiff’s unopposed motion for summary judgment. The order entered December 20, 2010 denied defendant’s motion to vacate the order entered October 7, 2010 and, upon such vacatur, to deny plaintiff’s motion for summary judgment. The appeal from the order entered December 20, 2010 is deemed to be from a judgment of the same court entered January 4, 2011 awarding plaintiff the principal sum of $3,787.20 (see CPLR 5512 [a]).

ORDERED that the appeal from the order entered October 7, 2010 is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from, among other things, an order of the Civil Court entered December 20, 2010 which denied defendant’s motion to vacate a prior order entered October 7, 2010 granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s motion for summary judgment. We deem the appeal from the order entered December 20, 2010 to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

A defendant seeking to vacate an order entered on default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). In the instant case, defendant’s moving papers failed to proffer, let alone establish, a reasonable excuse for the default. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012

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

Appeals from orders of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered October 7, 2010 and December 20, 2010. The order entered October 7, 2010 granted plaintiff’s unopposed motion for summary judgment. The order entered December 20, 2010 denied defendant’s motion to vacate the order entered October 7, 2010 and, upon such vacatur, to deny plaintiff’s motion for summary judgment. The appeal from the order entered December 20, 2010 is deemed to be from a judgment of the same court entered January 4, 2011 awarding plaintiff the principal sum of $3,780.82 (see CPLR 5512 [a]).

ORDERED that the appeal from the order entered October 7, 2010 is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from, among other things, an order of the Civil Court entered December 20, 2010 which denied defendant’s motion to vacate a prior order entered October 7, 2010 granting plaintiff’s unopposed motion for summary judgment and, upon such vacatur, to deny plaintiff’s motion for summary judgment. We deem the appeal from the order entered December 20, 2010 to be from the judgment which was subsequently entered (see CPLR 5512 [a]).

A defendant seeking to vacate an order entered on default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Hodges v Sidial, 48 AD3d 633, 634 [2008]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760 [2006]). In the instant case, defendant’s moving papers failed to proffer, let alone establish, a reasonable excuse for the default. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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 (Wavny Toussaint, J.), entered March 2, 2010. The order denied plaintiff’s 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, plaintiff appeals from an order which denied its unopposed motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the 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]; 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]). Here, plaintiff failed to demonstrate that defendant’s denial of claim forms were either untimely or without merit as a matter of law.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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 (Carolyn E. Wade, J.), entered April 5, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to respond to defendant’s discovery demands.

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, plaintiff appeals from an order of the Civil Court denying its motion for summary judgment and granting defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to provide defendant with, among other things, verified responses to its discovery demands “including 1099s, K-1s & W2s showing distributions . . ., proof of payment for spaces used and lease agreements, management agreements (and) corporate tax returns.”

While plaintiff argues that defendant is not entitled to the discovery ordered by the court, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). 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 Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC, 11 Misc 3d 71).

Defendant set forth detailed and specific reasons for its belief that plaintiff may be [*2]ineligible to recover assigned first-party no-fault benefits because it is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d, 11th & 13th Jud Dists 2010]). By obtaining discovery of the documents directed by the Civil Court, defendant will be able to ascertain whether plaintiff is ineligible to recover assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). Plaintiff’s remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 27, 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 (Jacqueline D. Williams, J.), entered May 3, 2010. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered June 28, 2010, pursuant to the May 3, 2010 order, awarding plaintiff the principal sum of $11,957.93 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Contrary to the finding of the Civil Court, plaintiff failed to establish its prima facie entitlement to summary judgment. Plaintiff relied upon its claim forms to establish the fact and the amount of the loss sustained; however, plaintiff failed to demonstrate that the claim forms annexed to its motion papers were admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the “act, transaction, occurrence or event” recorded in the document (CPLR 4518 [a]; 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]). As plaintiff failed to make out its prima facie case, its motion should have been denied. In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, so much of the order entered May 3, 2010 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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 (Richard G. Latin, J.), entered March 5, 2010, deemed from a judgment of the same court entered March 24, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 5, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,773.25.

ORDERED that the judgment is reversed, without costs, the order entered March 5, 2010 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, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint. After a judgment was entered, plaintiff appealed from the order. We deem plaintiff’s appeal to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

The affidavit of defendant’s claim specialist established that defendant had timely mailed requests and follow-up requests for verification (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]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim specialist was also sufficient to establish that plaintiff had failed to respond to those requests. It is noted that plaintiff never alleged that it had responded.

Consequently, the 30-day period within which defendant was required to pay or deny plaintiff’s claims did not commence to run and plaintiff’s action is premature (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]). Thus, defendant’s cross motion should have been granted. In light of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, the order entered March 5, 2010 is vacated, [*2]plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 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 September 22, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13.

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, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13.

The branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13 were granted due to the failure of plaintiff’s assignor to appear for examinations under oath (EUOs). On appeal, plaintiff contends that these branches of defendant’s motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument lacks merit (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]).

Plaintiff’s remaining contention is not properly before this court since it is raised for the first time on appeal.

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012