Civil Court of the City of New York, Kings County

164656/07

Attorney for Plaintiff

Law Offices of Melissa Betancourt, P.C.

155 Kings Highway, 3rd Floor

Brooklyn, NY 11223

Attorney for Defendant

Law Offices of Daniel J. Tucker

American Transit Insurance Co.

330 West 34th St., 10th Floor

New York, NY 10001

Katherine A. Levine, J.

This motion raises the issue of whether an insurer must issue a denial within 30 days of an injured party’s failure to appear for a post claim IME. The court concludes that since a failure [*2]to appear for a post claim is a violation of a condition precedent to the contract, as opposed to a policy exclusion, a denial on this ground is not subject to the preclusion rule.

Plaintiffs Neomy Medical, P.C., Perfect Point Acupuncture, P.C., and Chiropractic Back Care, P.C., (collectively “plaintiffs”), all medical service companies, commenced this action pursuant to Insurance Law 5106(a) to recover the sum of $5,854.55 for medical services they provided to their assignor Fan fan Both (“assignor” or “Both”). Defendant American Transit Ins. Co. (“American” or “defendant”) cross moved for summary judgment based on its claim that the assignor failed to appear at an independent medical examination (“IME”)(“IME no show”).

During oral argument, defendant conceded that only some of its denials were timely; ie mailed within 30 days of receipt of claim form. Defendant contended, however, that its late denials were not fatal since failure to appear for an IME is a violation of a condition precedent to the insurance policy which vitiates the contract and makes such s violation a non- precludable defense which survives a late denial. Plaintiff countered that an IME no show is a precludable defense. The court requested briefs solely on this issue.

To grant summary judgment, “it must clearly appear that no material and triable issue of fact is presented. Forrest v. Jewish Guild for the Blind, 3 NY3d 295 (2004); Zuckerman v, City of New York, 49 NY2d 557 (1980). A plaintiff establishes a prima facie entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form has been mailed and received, and that payment of no-fault benefits was overdue.” Mary Immaculate Hosp. v. Allstate Ins., 5 AD3d 742, 743 (2d Dept.2004); Second Medical v. Auto One Ins., 20 Misc 3d 291, 293 (Civil Ct., Kings Co.2008).

Condition Precedent

11 NYCRR 65-1.1 (d) provides for the mandatory personal injury protection endorsement (“PIP”). Under the subheading entitled “Conditions”, “Action against Company,” the regulation provides that “No action shall lie against the [c]ompany unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.” One provision under this subheading provides that the eligible person shall submit to medical examinations by physicians selected by or acceptable to the insurer…when, and as often as, the Company may reasonably require.” 11 NYCRR §65 – 1.1(d)[Sec. I. Conditions, Proof of Claim (b)]. Another condition to coverage under this section is that an eligible person shall, as may reasonably be required, submit to examinations under oath (“EUO”) by any person named by the insurer. Id. ^[FN1]

In Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 18, 20 (App. Term, 2d Dept. 2004) aff’d 35 AD3d 720 (2d Dept. 2006), the Appellate Term found that [*3]an insurer had the right to conduct an IME prior to its “receipt of the statutory claim form or its statutory equivalent which “under the regulations, trigger the verification process.” The right to an IME, at this juncture was not afforded by the verification procedures, as the “detailed and narrowly construed verification protocols are not amenable to application at a stage prior to submission of a claim form.” Id at 21. The court then noted the “Conditions” section in the Mandatory PIP predicates the right to commence an action against the insurer upon an eligible injured person’s (“assignor”) compliance with the terms of coverage. Fogel, supra, 7 Misc 3d at 25 (Golia, J., conc. in part and diss. in part).”Where an eligible injured person fails to submit to a reasonably requested IME, the insurance policy, by its terms…affords no coverage for the otherwise eligible injured person.” 7 Misc 3d at 25 citing to Orr. v Continental Cas. Co., 205 AD2d 599 (2d Dept. 1994) (Under New York law, the insurer has the right to declare the contract at the end where the insured breaches a term upon which the contract was conditioned). Thus, an insured’s refusal to comply with a reasonably requested IME which was not opposed or adequately refuted, constitutes a complete defense to the claim warranting dismissal. 7 Misc 3d at 25.

In affirming the Appellate Term, the Second Department found that there was no distinction between the contractual remedies available for failure to appear for pre claim as opposed to post claim IMEs and that the ” appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy.” Fogel v. Progressive Cas. Ins. Co., 35 AD2d 720, 721 (2d Dept. 2006).^[FN2]

The First Department subsequently found failure to comply with a request for an IME, whether pre-or post claim was a violation of a condition of coverage which would preclude an action against an insurer for payment of health services provided. Inwood Hill Medical, P.C. v. General Assurance Co., 10 Misc 3d 18. 20 (App. Term, First Dept. 2005).In Inwood Hill Medical, P.C. v. General Assurance Co., 10 Misc 3d 18, 20 (1st Dept. 2005), the First Department ruled that “inasmuch as attendance at a medical examination is a condition of coverage under Section 65-1.1, it follows that an eligible injured person’s failure to comply with a request for an IME precludes an action against an insurer for payment of health services provided.”

Preclusion Rule

Insurance Law § 5106(a) sets forth that no fault benefits “are overdue if not paid within 30 days after the claimant provides proof of the fact and the amount of loss sustained.” Similarly 11 NYCRR §65-3.8 c require that “(w)ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or part.” See Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274, 278-79(1997) (“30 day rule”). [*4]

A timely disclaimer is not required, however, when the policy on which the claim rests does not, by its terms, cover the incident giving rise to liability. Handlesman v. Sea Insurance Co., 85 NY2d 96 (1994). “Under those circumstances, the insurance policy does not contemplate coverage in the first instance, and requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed. ” Mtr. Of Worcester Ins. Co. V. Bettenhauser, 95 NY2d 185, 189 ( 2000). However, a timely disclaimer is necessary when the denial of coverage is based upon a policy exclusion or a breach of a policy condition without which the claim would be covered. Id. See, Zappone v, Home Ins. Co., 55 NY2d 131 (1982),

Although there are legions of cases discussing the preclusion rule, “drawing the line” between a lack of coverage in the first instance ( requiring no disclaimer) and a lack of coverage based on a policy exclusion (requiring a timely denial) has proven to be “problematic”. Mtr. Of Worcester, supra , 95 NY2d at 189.

In Fair Price Medical v. Travelers Ins., 10 NY3d 556 (2008), the Court of Appeals further clarified when the non-preclusion rule applied. Citing to its prior decision in Central General Hospital v. Chubb Group, 90 NY2d 195 (1997), the Court cautioned that there was only one “narrow” exception to the preclusion rule for those situations where an insurance company raises the defense of lack of coverage.Fair Price, 10 NY3d at at 563. A determination as to whether a specific defense is precluded under the 30 day rule or falls within the exception entails a judgment as to whether the defense is more like a “normal exception ” from coverage such as a policy exclusion or a lack of coverage in the first instance, i.e. a defense “implicating a coverage matter.” 10 NY3d at 565.

The oft cited distinction between policy exclusions and lack of coverage was further elaborated upon in State Farm Mut. Auto Ins. V. Mallela, 4 NY3d 313 (2005). In finding that medical corporations that are fraudulently incorporated are not entitled to reimbursement the Court of Appeals pointed to 11 NYCRR 65-3.16(a)(12), which excludes from the meaning of “basic economic loss” payments made to unlicensed or fraudulently licensed providers “thus rendering them ineligible for reimbursement” 4 NY3d at 320. These revised regulations (which include the PIP) do not ” create not a new category of exclusion, but rather merely a condition precedent with which all claimants must comply in order to receive benefits under statute”. 4 NY3d at 321 citing Mtr. Of Medical Society of NY v. Serio, 100 NY2d 854.866 (2003).

In Travelers indemnity Co. v. Milan Medical, 2009 NY Slip Op. 31604U, 2009 NY Misc LEXIS 3867 (Sup. Ct. NY Co. 2009), the court found that the Mallela defense was a “coverage defense: and as such was not subject to the preclusion rule. Id at 5. See Multiquest PLLC v. Allstate Ins. Co., 17 Misc 3d 37 (App. Term, 2d Dept. 2007); Crossbay Acupuncture v. State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 (App. Term, 2d dept. 2007); Eastern Medical P.C. v. Allstate Ins. Co., 19 Misc 3d 775, 790 ( the challenged regulation in Mallela did not create a new category of exclusion but rather was “a condition precedent with which all claimants must comply in order to receive benefits.” ). The court rejected the defendant’s contention that the [*5]defense of fraudulent incorporation did not fit within the “tight restrictions of the exception to preclusion outlined in General Hospital v. Chubb, 90 NY2d 199. Chubb, like Mallela, “spoke to a threshold coverage matter” Id.

In the very recent decision of Unitrin Advantage Ins. Co. V. Bayshore Physical Therapy, 2011 NY Slip Op 1948 (App. Div., 1st Dept. 3/17/11), the First Department explicitly found that “the failure to appear for IMEs requested by an insurer…is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine. Id at 2 citing Central General Hosp. V. Chubb, 90 NY2d 195 (1997)(defense that injured person’s condition and hospitalization were unrelated to the accident was non precludable ). The First Department justified its finding that an IME no show was a non -precludable defense on the ground that a “breach of a condition precedent to coverage voids the policy ab initio.” Thus, the failure to appear for an IME cancels the contract as if there was no coverage in the first instance and the insurer has the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely. Id.

In light of the afore-mentioned precedent, it is clear that the claimant’s failure to comply with a condition precedent to coverage voids the contract ab initio and defendant is not obligated to pay the claim, regardless of whether it issued denials beyond the 30 day period. Furthermore, since the contract has been vitiated, defendant may deny all the claims retroactively to the date of loss. In light of the above, the case is dismissed with prejudice.

This constitutes the Amended Decision and Order of the Court which replaces the Decision and Order of the Court dated March 30, 2011, which is hereby recalled and vacated.

DATED: April 7, 2011__________________________

KATHERINE A. LEVINE

JUDGE, CIVIL COURT

Footnotes

Footnote 1:Since the right to conduct EUOs and IMEs both appear in the PIP, and thus constitute conditions precedent to coverage, the case law treats both of these examinations in the same fashion.

Footnote 2: The majority found that the language mandating compliance with the terms of the coverage as a condition precedent to bringing a lawsuit applied solely to “an insureds cooperation with the post claim verification protocols with regard to IMEs.” 7 Misc 3d at 22.

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, Third District (Fred J. Hirsh, J.), dated March 22, 2010. The order denied plaintiff’s motion to strike defendant’s demand for a trial de novo.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties participated in a mandatory arbitration proceeding (see Rules of the Chief Judge [22 NYCRR] part 28). Following the arbitration hearing, the arbitrator found in favor of plaintiff. Thereafter, defendant timely served and filed a demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12). Plaintiff moved to strike the demand, asserting that, while defense counsel had appeared at the arbitration hearing, that appearance was tantamount to a default since defendant had attempted to establish its defense of lack of medical necessity through non-evidentiary submissions of counsel, and had not produced its doctor to testify. As a result, plaintiff contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). The District Court denied plaintiff’s motion to strike defendant’s demand for a trial de novo, and this appeal by plaintiff ensued.

The order is affirmed (see B.Y., M.D., P.C. v Geico Indem. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50036[U] [App Term, 9th & 10th Jud Dists 2011]).

Tanenbaum, J.P., Molia and LaCava, JJ., concur. [*2]
Decision Date: April 06, 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, Third District (Fred J. Hirsh, J.), dated November 18, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiff’s claims based on the assignor’s failure to appear at two scheduled examinations under oath (EUOs). The District Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, holding that although defendant had established the timely mailing of the EUO scheduling letters and the nonappearance of the assignor at the EUOs, defendant had failed to show that the EUO was “based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination.” This appeal by defendant ensued.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted affidavits of its no-fault examiner and its mailroom supervisor. The affidavits sufficiently established that the EUO notices had been sent to plaintiff’s assignor in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; 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]). Defendant also submitted an affidavit of the investigator who was to perform the EUOs, which established that the assignor had failed to appear therefor (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant’s request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

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

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 06, 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, First District (Fred J. Hirsh, J.), dated December 23, 2009. 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that
he had failed to appear for an independent medical examination (IME). The District Court denied defendant’s motion, and defendant appeals.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit of an employee of Alternative Consulting and Examinations (ACE), which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with ACE’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; 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]). Defendant also submitted an affidavit of the doctor who was to perform the IMEs, which established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., [*2]35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

We note that, contrary to the finding of the District Court, while Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) states that a no-fault insurer must base its request for an examination under oath upon “the application of objective standards so that there is specific objective justification supporting the use of such examination,” it does not impose such a standard on a request for an IME.

As the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), defendant’s motion for summary judgment dismissing the complaint is granted.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 06, 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, Richmond County (Kim Dollard, J.), entered December 17, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by personally serving defendant via mail pursuant to CPLR 312-a. Thereafter, defendant moved to dismiss the complaint on the ground that process had not been properly served. In its moving papers, defendant asserted that since it had not signed the acknowledgment of receipt of the summons and complaint and returned it to plaintiff within 30 days of receiving it, plaintiff was required to serve defendant in another manner and had failed to do so. In opposition to the motion, plaintiff’s attorney stated, among other things, that defendant should be compelled to sign the acknowledgment of receipt of the summons and complaint. The Civil Court denied defendant’s motion.

Since defendant did not sign and return the acknowledgment of receipt of the summons and complaint, service of process was not effectuated pursuant to CPLR 312-a, and no personal jurisdiction was acquired (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]). Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*2]
Decision Date: April 05, 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 (Noach Dear, J.), entered February 19, 2009. The order, insofar as appealed from, denied defendant’s cross 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, the Civil Court denied plaintiff’s motion for summary judgment, as well as defendant’s cross motion for summary judgment dismissing the complaint, finding that “issues of fact remain for trial as to the propriety of the defendant’s denials and plaintiff’s purported failure to appear for an EUO.” This appeal by defendant ensued from so much of the order as denied its cross motion.

Defendant denied all of the claims at issue on the ground that the assignors had failed to attend scheduled examinations under oath (EUOs). In order for defendant to make a prima facie showing of its entitlement to summary judgment based on the assignors’ failure to appear at scheduled EUOs, defendant had to demonstrate that its initial and follow-up requests for verification were timely mailed (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignors failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In support of its cross motion, defendant submitted the affirmation of an attorney employed by the law office that defendant hired to schedule and conduct the EUOs. This affirmation, however, failed to establish a prima facie showing since it did not describe the law [*2]office’s standard practices and procedures used to ensure that the verification requests were properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co. 286 AD2d 679 [2001]; Advanced Med., P.C. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51023[U]). Consequently, the Civil Court properly denied defendant’s cross motion for summary judgment. Accordingly, the order is affirmed insofar as appealed from.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: April 05, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated June 10, 2010, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), dated June 10, 2010, reversed, without costs, motion denied and complaint reinstated.

Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a “financial relationship” with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.

Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a “financial relationship” with the health care provider (Public Health Law § 238-a[1][a]). A “financial relationship” is defined in section 238(3) of the Public Health Law as “an ownership interest, investment interest or compensation arrangement.” Critically, a “compensation arrangement” means “any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider” (Public Health Law § 238-a[5][a]), but does not include “payments for the rental or lease of office space” if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).

The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any “financial relationship” between plaintiff and the referring practitioner. No allegation is made that there was any “ownership interest” or “investment interest” between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant’s limited submission failed to establish that there was any “compensation arrangement” in general or any “payments for the rental or lease of office space” in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 5, 2008, which denied their motion for summary judgment in the principal sum of $9,902.18.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 5, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $6,902.18, and plaintiff Devonshire Surgical Facility in the principal sum of $3,000. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 05, 2011