SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered July 15, 2010. The order denied plaintiff’s motion for summary judgment and granted 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 granted, defendant’s cross motion for summary judgment dismissing the complaint is denied and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

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

Plaintiff established its prima facie entitlement to summary judgment by proof of the submission to defendant of the claim forms, proof of the fact and the amount of the loss sustained, and proof that defendant had failed to pay or deny the claims within the requisite 30-day period (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]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion and in support of its own cross motion for summary judgment, defendant failed to establish that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that the 30-day claim determination period (see Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising the failure of plaintiff’s assignors to appear at the EUOs as a defense (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive [*2]Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment dismissing the complaint is denied and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston and Rios, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J., dissents and votes to affirm the order in the following memorandum:

I disagree with the majority’s favoring of form over function and consequently find that the letters sent by the insurer qualify as verification requests, and thus tolled the 30-day time limit for denial of plaintiff’s claim. Further, I find that the insurer established that these same letters were sent to plaintiff in a timely fashion.

This Appellate Term has previously held that ” an insurer may not rely on a letter, even if denominated a verification request, that merely informs a claimant that a decision on the claim is delayed pending an investigation, and without specifying a particular form of verification and the person or entity from whom the verification is sought, to toll the 30-day claim determination period'” (Ocean Diagnostic Imaging P.C. v Citywide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U], *1 [App Term, 2d & 11th Jud Dists 2005], quoting Melbourne Med. P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 94 [App Term, 2d & 11th Jud Dists 2004]). I understand the holdings in Ocean Diagnostic Imaging P.C. and Melbourne Med. P.C. to place a greater value on function than form (see Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co., 13 Misc 3d 127[A], 2006 NY Slip Op 51672[U], *3 [App Term, 2d & 11th Jud Dists 2006] [Golia, J., concurring] [“(Ocean Diagnostic Imaging P.C.) held that even if a document is labeled a verification request, it will not serve to toll the 30-day period if it merely informs that the claim is delayed pending an investigation but fails to specify the particular information sought”]). Hence, just as the documents in Ocean Diagnostic Imaging P.C. were deemed not to qualify as verification requests despite being labeled as such, the documents in the present matter conversely do qualify as verification requests despite their being labeled otherwise.

Here, despite the document being labeled a “delay letter,” it informed plaintiff of both the delay and the “particular information sought.” The insurer’s letters explicitly state that information necessary for the investigation remains outstanding, namely “[a] statement from our policyholder and/or one of the parties involved in this loss.” Additionally, these letters specifically note that “[a]s soon as we receive the requested information and our investigation is complete, we will be happy to give further consideration to your claim.” These letters contain the very characteristics we identified in Ocean Diagnostic Imaging P.C. as necessary components of a verification request and inform plaintiff of what is required to facilitate the processing of the claim. The fact that these letters have been labeled as “delay letters” is subservient to the fact that the content and purpose of these letters is identical to a verification request.

Insurance Department Regulations (11 NYCRR) § 65-3.5 (b), addresses the manner in which additional verification may be requested by an insurer. Therein, it is stated:

“Subsequent to the receipt of one or more of the completed verification forms, any [*3]additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms. Any requests by an insurer for additional verification need not be made on any prescribed or particular form.”

Plaintiff did supply defendant with the initial verification forms (NYS Form N-3), and a copy of those forms were attached to plaintiff’s motion submitted below. Hence, any other verification required by defendant subsequent to the receipt of the initial verification would fall under the governance of Insurance Department Regulations (11 NYCRR) § 65-3.5 (b) as “additional verification.” Such “additional verification need not be made on any prescribed or particular form” (Insurance Department Regulations [11 NYCRR] § 65-3.5 [b] [emphasis added]). Thus, not only may an insurer request such verification simply by sending a letter, it would appear even a verbal request would suffice under the wording of section 65-3.5 (b).

Insurance Department Regulations (11 NYCRR) § 65-3.5 (b) provides that if an insurer has not received the additional verification sought within 30 days of the “original request, the insurer shall” make a second request within 10 days. None of the letters sent by the insurer is this case fell outside this 40-day window. The insurer first received the bills from plaintiff on September 9, 2002 (the first Chervyakov claim), September 26, 2002 (the second Chervyakov claim), August 26, 2002 (the first Komarov claim) and September 5 (the second Komarov claim). The letters sent by the insurer concerning the Chervyakov claims were dated September 6, October 7, and October 29. The letters addressing the Komarov claims were dated September 6, September 19, October 7 and October 21.

Indeed, the insurer submitted the affidavit of Marie Murad, a Senior Claims Examiner for defendant, attesting to the fact that these letters were mailed on the dates listed above. Ms. Murad also testified in the affidavit to the fact that the insurer had made efforts to obtain statements from the assignors, however these efforts “proved futile.” As there exists no prescribed form in which additional verification requests must be made, the efforts engaged in by the insurer to obtain needed statements from the allegedly injured parties is more than sufficient to qualify as verification requests.

Finally, when these efforts to obtain statements failed to produce any cooperation, the insurer retained a law firm to conduct examinations under oath (“EUOs”) of the assignors. The first EUO scheduling letter was mailed to both assignors on October 28, 2002. Neither assignor appeared for the EUO scheduled as a result of the first letter. A second scheduling letter was mailed to both assignors on November 11, 2002, and again neither assignor appeared for the scheduled EUO. These letters were sent not only to the assignors, but the assignors’ attorney as well. The record is devoid of any evidence that the assignors or their attorney made any response [*4]to these scheduling letters or attempted to participate in these duly scheduled EUOs. Indeed, the record includes transcripts from both attempted EUOs. Therein, the insurer’s attorney states that having appeared at the duly scheduled time and place to conduct the EUOs, both the assignors and their attorney had failed to appear.

As an assignor’s participation in a reasonably scheduled EUO is a condition precedent for payment of a claim, the insurer was within its rights to deny the claim on that basis. Furthermore, because of the insurer’s diligent efforts to obtain statements from the assignors, as chronicled by the many letters discussed above, the 30-day deadline for a denial had been properly tolled. Thus, the insurer’s denial was timely and proper, and consequently there exists more than enough evidence to defeat plaintiff’s motion for summary judgment as well as give credence to defendant’s cross motion for summary judgment.
Decision Date: February 21, 2012

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 (Dawn Jimenez Salta, J.), entered October 15, 2009. The order, insofar as appealed from as limited by the brief, 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 the motion and cross motion, and found that the sole issue for trial was the medical necessity of the services provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is 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 order, insofar as appealed from, is reversed, and defendant’s cross [*2]motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 21, 2012

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 (Ingrid Joseph, J.), entered April 1, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint on the ground that there was no medical necessity for the services rendered.

As the affidavit of plaintiff’s psychologist submitted in opposition to defendant’s motion was sufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services at issue, the order, insofar as appealed from, is affirmed (see Ozone Park Chiropractic v Clarendon Natl. Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51453[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 21, 2012

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 (Pamela L. Fisher, J.), entered June 18, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In support of its motion, defendant submitted an affidavit by its biomechanical engineer, which affidavit was in admissible form, as it was accompanied by a certificate of conformity pursuant to Real Property Law § 299-a, and was therefore in compliance with CPLR 2309 (c) (cf. Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The engineer concluded that the injuries of plaintiff’s assignors could not have arisen out of the accident in question, after he reviewed, among other things, the photographs of the vehicle involved in the accident, the medical records of plaintiff and other providers regarding their treatment of the assignors, and copies of the transcripts of plaintiff’s assignors’ testimony at their examinations under oath, all of which defendant attached to its moving papers.

As defendant established its entitlement to judgment as a matter of law by submitting proof in admissible form showing the lack of a causal connection between the accident and the injuries claimed by plaintiff’s assignors, the burden shifted to plaintiff to rebut defendant’s showing. Plaintiff, in its opposition papers, failed to do so. Defendant’s motion for summary judgment dismissing the complaint should therefore have been granted.

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

Golia, J.P., and Weston, J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order in the following memorandum:

I respectfully dissent and vote to affirm the order.

Contrary to the finding of the majority, the affidavit of defendant’s biomechanical engineer was insufficient to establish as a matter of law that the injuries claimed by plaintiff’s assignors could not have arisen from the accident. Instead, the affidavit merely demonstrated a “founded belief” that the alleged injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly denied.
Decision Date: February 21, 2012

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 (William A. Viscovich, J.), entered May 10, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order.

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 to compel disclosure and thereafter to produce plaintiff’s owner, Nikolai Lagoduke, for an examination before trial, and denied plaintiff’s cross motion for a protective order. At issue on this appeal is whether defendant’s failure to assert a defense pursuant to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]) precludes it from seeking discovery related to that defense. We conclude that, based on the record before us, defendant made sufficient allegations of fraudulent incorporation to warrant disclosure.

It is well settled that a party is entitled to full disclosure of all matter that is “material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]). What is “material and necessary” is left to the sound discretion of the court and includes “any facts bearing on the controversy which 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 Publ. Co., 21 NY2d 403, 406 [1968]; Young v Tierney, 271 AD2d 603 [2000]). Where, as here, an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense (see e.g. Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). A Mallela defense is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial (see Midwood Acupuncture, P.C. v State Farm [*2]Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]).

Here, although defendant never moved to amend its answer to assert a defense based on fraudulent incorporation, it did submit an affidavit containing sufficient allegations of fraudulent incorporation. Defendant included an affidavit from its Senior Special Investigator, who set forth, in detail, plaintiff’s close connection with another medical provider whose owner was convicted of, among other things, fraud and falsifying business records. Since defendant made adequate allegations of fraudulent incorporation, the Civil Court did not abuse its discretion in granting those branches of defendant’s motion seeking to compel disclosure on that issue, and in denying plaintiff’s cross motion for a protective order (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U]).

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

Rios, J.P., and Weston, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur for the reasons stated in my concurrence in Lexington Acupuncture, P.C. v General Assur. Co. (___ Misc 3d ___, 2012 NY Slip Op ______ [Appeal No. 2010-165 K C], decided herewith). While there exist certain differing factual elements in these two matters, those facts have no significance here, and consequently play no part in the legal issues in controversy.

Additionally, the failure of the defendant in this matter to assert every affirmative defense asserted in Lexington Acupuncture, P.C. is of no consequence. The inclusion of any one satisfactory affirmative defense would be sufficient. Furthermore, and just as importantly, as stated in my Lexington Acupuncture, P.C. concurrence, a Mallela claim is non-precludable and can be raised at any time (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).
Decision Date: February 21, 2012

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 (Sylvia G. Ash, J.), entered December 17, 2009. The order, upon an amended cross motion by defendant for, among other things, leave to amend its answer and to direct plaintiff “to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same,” granted defendant leave to amend its answer and directed that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer.”

ORDERED that the order is modified by striking so much of the order as directs that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer” and by providing that the branch of defendant’s cross motion seeking to direct disclosure is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, by an amended cross motion, defendant cross-moved for, among other things, leave to amend its answer to assert the additional affirmative defense to the effect that plaintiff was not entitled to receive no-fault benefits because it failed to comply with applicable state or local licensing laws. Defendant’s cross motion also sought an order, pursuant to CPLR 3104, directing plaintiff “to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same.” By order dated November 18, 2009, the Civil Court denied plaintiff’s motion. By order entered December 17, 2009, the Civil Court granted the branch of defendant’s amended cross motion seeking to amend the answer and directed plaintiff to “provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer.”

Leave to amend pleadings should be freely granted absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 225 [2008]; see also Worthen-Caldwell v Special Touch Home Care Servs., Inc., 78 AD3d 822 [2010]). As plaintiff was neither prejudiced nor surprised by defendant’s delay in asserting the foregoing affirmative [*2]defense, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s amended cross motion seeking leave to amend its answer (see e.g. New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52217[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

A review of the record indicates that defendant’s initial discovery demands had not requested any “management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records,” and were merely comprised of a “Demand for Disclosure of Witness(es),” a “Notice Pursuant to CPLR 3101” for, among other things, the identities of expert witnesses intended to be called at trial, and a “Declination of Service by Electronic Means.” Since defendant had not served any supplemental discovery demands upon plaintiff prior to making its cross motion, and did not submit any proposed supplemental discovery demands with its cross motion, so much of the order as states that “the plaintiff shall provide verified responses to defendant’s discovery demands within 60 days after defendant serves its amended answer” is stricken.

We note that, contrary to plaintiff’s contention, there is no requirement that a CPLR 321 change or withdrawal of attorney form be notarized. We further note that nothing in our decision herein is intended to preclude defendant from serving supplemental discovery demands.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: February 21, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered August 31, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Elizabeth A. Taylor, J.), entered August 31, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, a chiropractor’s sworn peer review report, setting forth a factual basis and medical rationale for his stated conclusion that the diagnostic testing giving rise to plaintiff’s no-fault claim lacked medical necessity (see generally CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In opposition, plaintiff failed to raise a triable issue of fact. The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff’s medical records. Further, plaintiff’s affiant did not refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer (see CPT Med. Servs. P.C., 18 Misc 3d at 88). Nor is the separate, unsigned medical report submitted by plaintiff properly considered (see CPLR 2106; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 16, 2012

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 (Katherine A. Levine, J.), entered March 23, 2010. The order, insofar as appealed from, in effect, denied defendant’s cross motion for summary judgment dismissing the complaint and found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision thereof finding that plaintiff had established its prima facie case, and by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted; as so modified, 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 moved for summary judgment or, in the alternative, for a finding for all purposes in the action, that plaintiff had established its prima facie case. Defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and found, implicitly pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. [*2]

We note initially that plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of the president of its third-party biller was insufficient to establish that the documents annexed to plaintiff’s motion papers were admissible pursuant to CPLR 4518 (a) (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff was not entitled to a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case.

In support of defendant’s cross motion for summary judgment, defendant submitted, among other things, an affidavit of its claims examiner, which established that the claim denial forms had been timely mailed in accordance with defendant’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, however, did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial consultation on August 29, 2007 (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), nor did it establish as a matter of law that the amounts sought by plaintiff for acupuncture treatment rendered from August 30, 2007 through October 25, 2007 were in excess of the amounts permitted by the workers’ compensation fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied the branch of defendant’s cross motion seeking the dismissal of these claims.

In support of its cross motion, defendant submitted a sworn report of the licensed acupuncurist/chiropractor who had conducted an independent medical examination of plaintiff’s assignor on October 16, 2007. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. Since defendant’s showing that the services rendered from October 30, 2007 through January 30, 2008 were not medically necessary was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing plaintiff’s claims for these dates of service (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 order of the Civil Court is modified by striking the provision thereof finding that plaintiff established a prima facie case and by providing that the branch of defendant’s cross motion for summary judgment seeking to dismiss plaintiff’s claims for dates of service from October 30, 2007 through January 30, 2008 is granted.

Pesce, P.J., Weston and Rios, JJ., concur. [*3]
Decision Date: February 14, 2012

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated November 6, 2009. The order granted defendant’s motion to amend its answer to add affirmative defenses.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to amend its answer, approximately four years after joinder of issue, to add affirmative defenses asserting the existence of a personal injury deductible in the insurance contract and denying that plaintiff’s assignor was an eligible injured person. The Civil Court granted the motion.

Plaintiff does not deny that the underlying insurance contract contains a deductible or that defendant’s timely NF-10 denial of claim forms asserted the existence of the deductible (see e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U] [App Term, 2d & 11th Jud Dists 2005]). Although there was a lengthy period of time between the joinder of issue and the making of the motion to amend, lateness alone is not a barrier to amendment absent a showing of “significant” prejudice to the opposing party (Rodriguez v Panjo, 81 AD3d 805, 806 [2011]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [*2][1983]), or that the proposed defenses are “patently devoid of merit” or “palpably insufficient to state a . . . defense” (Lucido v Mancuso, 49 AD3d 220, 229 [2008]; see also Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51570[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion’s merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant’s claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion’s denial is not established (e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U]).

Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2011]; see Ops. Gen. Counsel NY Ins. Dept. No 08-04-16 [April 2008] [assignee-provider “may pursue all of the remedies that would have been available to the patient”]). Upon the record before us, we find that the Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer to interpose the aforementioned affirmative defenses (CPLR 3025 [a]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 09, 2012