[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 29, 2011

APPEARANCES OF COUNSEL

Law Offices of Moira Doherty, P.C., Bethpage (Kevin R. Glynn of counsel), for appellant.

{**35 Misc 3d at 70} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 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 and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the order as denied its cross motion.

A provider is required to submit proof of claim to the insurer “in no event later than 45 days after the date services are rendered” unless the insurer has been provided with “clear and reasonable justification for the failure to comply with such time limitation” (Insurance Department Regulations [11 {**35 Misc 3d at 71}NYCRR] § 65-1.1). Plaintiff’s billing manager alleged that he had [*2]personally mailed a claim form (which billed for acupuncture services rendered from May 23, 2007 through May 31, 2007) on June 21, 2007. Defendant denied payment for the portion of this claim which billed for treatment on May 23, 2007 and May 24, 2007, based on plaintiff’s submission of the claim form beyond the 45-day period. Defendant’s claims examiner averred that the claim form had not been received by defendant until July 13, 2007 and annexed the envelope, bearing a July 10, 2007 postmark, which purportedly contained the claim form in question. As there is an issue of fact regarding the date that this claim form was mailed, defendant was not entitled to summary judgment dismissing the portion of the claim which billed for treatment on May 23, 2007 and May 24, 2007.

With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant’s claims examiner stated that these claims underwent a “fee schedule review” resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant’s contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers’ compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.

Defendant denied the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 based on an independent medical examination (IME) performed on August 13, 2007 by an acupuncturist who concluded that further acupuncture treatment was no longer necessary. In support of its cross motion, defendant submitted the sworn report of the acupuncturist, which established, prima facie, a lack of medical necessity for the services performed from August 29, 2007 through September 6, 2007. In opposition, plaintiff submitted the affidavit of its treating acupuncturist which did not rebut the conclusions set forth in the IME report (see Olga Bard Acupuncture, P.C. v GEICO Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51898[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]). Accordingly, so much of defendant’s cross motion as seeks to dismiss this portion of plaintiff’s claim should have been granted.{**35 Misc 3d at 72}

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 is granted.

Golia, J. (dissenting in part and concurring in part and voting to modify the order, insofar as appealed from, by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff’s September 10, 2007 claim that was for services rendered from August 29, 2007 through September 6, 2007 is granted and by providing that so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover for services rendered from May 31, 2007 through August 27, 2007 is vacated, [*3]and the matter is remitted to the Civil Court for a new determination of this branch of defendant’s cross motion, in the following memorandum). I must dissent from my colleagues in the majority as to their implicit finding that a court is under no obligation to take notice of the rates set forth in the workers’ compensation fee schedule. Indeed, the question here is one of judicial notice and the obligations of the court with respect thereto. While the majority does not specifically cite to the term, judicial notice is the issue. I previously filed a concurrence addressing the very same issue in Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co. (14 Misc 3d 142[A], 2007 NY Slip Op 50372[U] [App Term, 2d & 11th Jud Dists 2007]). While my concurrence in Stanley Liebowitz, M.D. P.C. specifically addressed the Civil Court’s grant of summary judgment to the medical provider, as opposed to the denial of summary judgment to the insurance provider, the issue of judicial notice of the no-fault fee schedule was similarly the underlying basis of that matter.

CPLR 4511 (a) states that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state” (emphasis added). As the fee schedule by which the rates of no-fault medical providers is determined is codified in the Official Compilation of Codes, Rules and Regulations of the State of New York, it falls under the purview of this mandate, and is consequently an obligation of this court.{**35 Misc 3d at 73}

The fee schedule utilized in New York State’s no-fault insurance scheme is the same schedule that was originally devised to set fees for medical services provided in conjunction with workers’ compensation claims. The workers’ compensation fee schedule was “incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a])” (LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2011]). Hence, the fee schedule, as it pertains to no-fault claims, is codified as part of the Official Compilation of Codes, Rules and Regulations of the State of New York as a component of Insurance Department Regulations (11 NYCRR) § 68.1 (a).

The New York Court of Appeals has specifically addressed judicial notice as it pertains to New York State regulations. In Matter of New York Assn. of Convenience Stores v Urbach (92 NY2d 204, 214 [1998]), the Court of Appeals found that the repeal of certain regulations by the New York State Tax Department was a development of which the Court “must take judicial notice.”

Both the Third and First Departments have held much the same. In Cruise v New York State Thruway Auth. (28 AD2d 1029, 1030 [1967]), the Appellate Division, Third Department, found that “the [trial] court was required [by CPLR 4511 (a)] to take judicial notice of” certain regulations of the New York State Thruway Authority. In Chanler v Manocherian (151 AD2d 432, 433 [1989]), the Appellate Division, First Department, held that, under CPLR 4511 (a), “[t]he refusal to take judicial notice of pertinent laws and regulations constitutes reversible error” (citing Howard Stores Corp. v Pope, 1 NY2d 110 [1956]).

The essential principle underlying these decisions is that a court has an inherent obligation to know the laws which it is charged with applying, much the same as a judge would charge a jury on the law at the close of evidence. Indeed, in discussing the role of judicial notice in the application of laws, the American Jurisprudence Proof of Facts states that “[t]he exercise of [*4]such power is so much taken for granted, that the specific term ‘judicial notice’ is not generally associated with it, though technically it could well be applied,” as “[a] court has inherent power to know the domestic law of its own jurisdiction, both statutory and case law” (60 Am Jur Proof of Facts 3d 175, § 3).

This long-entrenched reluctance of courts to take judicial notice of codified laws and regulations is illustrated in some aged opinions of appellate courts in our sister states: “[i]nferior {**35 Misc 3d at 74}courts are required to know the local regulations, municipal ordinances and town by-laws which it is their duty to administer” (Strain v Isaacs, 59 Ohio App 495, 514, 18 NE2d 816, 825 [1938]); “[t]he court is bound to take notice of the law” (Randall v Commonwealth of Virginia, 183 Va 182, 186, 31 SE2d 571, 572 [1944]). Both cases remain good law in their respective jurisdictions and continue to inform as to the proper role of judicial notice.

More recently, in Getty Petroleum Mktg., Inc. v Capital Term. Co. (391 F3d 312, 322 [2004]), Judge Lipez of the United States Court of Appeals for the First Circuit wrote in a concurring opinion:

“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions—which are technically documents—because they are presented to the court as law, not to the jury as evidence.”

In light of the above-discussed precedent and the tangential connection between the formal practice of judicial notice and the recognition of codified laws and regulations, I can see no reason why this court should not take notice, judicial or otherwise, of the fee schedule. The fee schedule has been made part of the law of New York (see LVOV Acupuncture, P.C., 2011 NY Slip Op 51721[U]).

An advocate before any court need not supply it with physical copies of the laws upon which an argument is based to ensure that those particular laws are taken under consideration by this court. An advocate need only recite an argument involving a certain law; an attorney need only bring the relevant law to the attention of a court. Indeed, here it is enough that defendant alleged that the fee charged by plaintiff exceeded the relevant rates set forth in the fee schedule as prescribed by law. As such, I would remit this specific issue back to the lower court for a determination of the motion as to whether the proper fees were charged under the workers’ compensation fee schedule for the services rendered from May 31, 2007 through August 27, 2007, and whether appropriate payment was made thereon. I would also advise the motion court that it is obligated to take notice of the workers’ compensation fee schedule and all New York laws and regulations pertaining thereto.{**35 Misc 3d at 75}

Pesce, P.J., and Steinhardt, J., concur; Golia, J., dissents in part and concurs in part in a separate memorandum.

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 (Robert R. Reed, J.), entered February 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 28, 2011

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 (Jodi Orlow, J.), entered September 28, 2010. The order granted the motion of defendant Alicia A. Jackson to vacate a default judgment insofar as entered against her.

ORDERED that the order is reversed, without costs, and defendant Alicia A. Jackson’s motion to vacate the default judgment insofar as entered against her is denied.

Allstate Insurance Company, as subrogee of Joon Nam Kim and Kyu Nam Chae, brought this action against Alicia A. Jackson and Kevin D. Hudson, respectively the alleged owner and operator of a vehicle which, plaintiff claimed, was negligently operated, causing plaintiff’s subrogors to sustain serious injuries in an accident on October 17, 2006. As a result of the accident, plaintiff had to pay its subrogors for uninsured and no-fault benefits. After a default [*2]judgment was entered against defendant Hudson for failure to appear or answer, and against defendant Jackson for failure to appear at trial, Jackson moved, pro se, to vacate the default judgment insofar as entered against her. In her moving papers, Jackson asserted that she had a good defense because she “was not driving the car” at the time of the accident. The Civil Court granted Jackson’s motion.

A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and that she 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]; Solomon v Ramlall, 18 AD3d 461 [2005]). Vehicle and Traffic Law § 388 places responsibility for harm resulting from the operation of a motor vehicle on the owner of the vehicle. Although the Court of Appeals has interpreted the statute as creating a rebuttable presumption that the driver of the vehicle operated it with the permission of the owner (Murdza v Zimmerman, 99 NY2d 375, 379-380 [2003]), Jackson failed to offer any evidence to rebut the presumption that Hudson drove the vehicle with her consent. Jackson’s mere assertion that she was not driving the vehicle at the time of the accident did not constitute a meritorious defense to the action (Traore v Nelson, 277 AD2d 443 [2000]). In view of the foregoing, we need not reach the issue of whether Jackson offered a reasonable excuse for her default. Accordingly, the order is reversed and defendant Jackson’s motion to vacate the default judgment insofar as entered against her is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Second District (Michael A. Ciaffa, J.), dated July 7, 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 denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claim on the ground of lack of medical necessity (see Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affirmed report of defendant’s peer reviewer set forth a sufficient medical rationale and factual [*2]basis to demonstrate a lack of medical necessity for the services at issue (see B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

In opposition to defendant’s motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered June 15, 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.

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated October 9, 2009, plaintiffs agreed to serve defendant with verified responses to its written discovery demands within 60 days of the date of the order or be precluded from offering evidence at trial. In January 2010, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiffs were precluded from offering any evidence at trial; and, therefore, that plaintiffs could not establish their prima facie case. In opposition, plaintiffs offered no excuse for their failure to comply with the so-ordered stipulation; rather, plaintiffs stated that they had served defendant with their responses in June [*2]2010. The Civil Court denied defendant’s motion finding that “there exists reasonable excuse for the delay in responding to defendant’s discovery demands i.e. change of attorneys handling this matter and the plaintiff [sic] should not be prejudiced due to changes in counsel.”

A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiffs were required to demonstrate a reasonable excuse for their failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiffs failed to meet this burden. Although the Civil Court found that defendant’s change of attorney constituted a valid excuse, plaintiffs’ opposing affirmation made no reference to any change of attorney nor indicated how any such change of attorney excused its compliance. Accordingly, as the order of preclusion prevents plaintiffs from establishing their prima facie case, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branches of plaintiff’s cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment upon the seven claims at issue in this action. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied plaintiff’s claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion. [*2]

On appeal, defendant argues that its motion to compel plaintiff to produce Dr. Mayard and Dr. Berardi for depositions should have been granted because the motion sought information regarding “treatment” and plaintiff’s “billing practices,” which information is material and necessary to the defense of this action. However, we find that these defenses are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]), and therefore defendant is not entitled to the discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s cross motion, since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant admits that it received plaintiff’s claims seeking the sums of $748.24 and $230.09 on December 16, 2006 and December 29, 2006, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Nor does defendant claim that the EUOs of Drs. Mayard and Berardi were requested, or pending, during that time. We note that defendant’s January 15, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of either of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that these two claims were timely denied and therefore has not established that its defenses as to these two claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to these claims.

However, the record establishes that defendant’s time to pay or deny the remaining claims, seeking the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16, was tolled. The affirmation submitted by defendant’s attorney established that EUO scheduling letters had been mailed in accordance with his law firm’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’s February 13, 2007 request, which scheduled the EUOs for February 28, 2007, was timely with respect to these remaining claims (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]), as was the March 7, 2007 follow-up request, which rescheduled the EUOs for March 21, 2007, after the doctors had failed to appear for the scheduled February 28, 2007 date (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith).

Defendant raised a triable issue of fact by demonstrating that the doctors had failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of these five remaining claims had been timely denied on April 11, 2007 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since defendant is not precluded from interposing that defense with respect to these claims, the [*3]branches of plaintiff’s cross motion seeking summary judgment with respect to the remaining five claims should have been denied.

In light of the foregoing, the order appealed from is modified by providing that the branches of plaintiff’s cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied.

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

Golia, J., taking no part.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross 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, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion on the ground that it had timely denied plaintiff’s claims after Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]

Defendant demonstrated that it had properly requested that plaintiff’s principals appear for an EUO, that they failed to appear for scheduled EUOs and that defendant issued a denial of claim form on April 11, 2007, within 30 days after their failure to appear (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith). However, the claims at issue in this case were submitted to defendant after it had issued that denial of claim form, and, thus, the April 11, 2007 denial is ineffective as to these claims (cf. Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant attached denial of claim forms to its opposition to plaintiff’s cross motion which purport to address the claims at issue here, and which appear timely on their face, but defendant failed to submit evidence that it had mailed them. Since defendant failed to prove that it had timely denied the claims at issue, it is precluded from asserting most defenses, including its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011], lv denied 17 NY3d 705 [2011]). Furthermore, defendant is not entitled to the depositions of Dr. Mayard and Dr. Berardi, as it only sought the depositions in order to obtain information regarding “treatment” and plaintiff’s “billing practices,” defenses which we find to be precluded (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant’s motion was properly denied and plaintiff’s cross motion for summary judgment was properly granted.

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

Golia, J., taking no part.
Decision Date: December 23, 2011