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 (Kathryn E. Freed, J.), entered January 13, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment on the ground that plaintiff had failed to appear for two scheduled examinations under oath (EUOs).
Plaintiff opposed the motion and cross-moved for summary judgment, arguing, among other things, that defendant’s denial of plaintiff’s claims should be held to be untimely in that defendant had failed to establish the timely mailing of the EUO scheduling letters and also had failed to establish that plaintiff did not appear for the EUOs. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish the timely mailing of the denial of claim forms and the EUO scheduling letters, and also had failed to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant ensued.

Contrary to the Civil Court’s findings, defendant established the timely mailing of the EUO scheduling letters. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 [*2]Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of the plaintiff at an EUO 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 at 722), the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint. We note that, contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant timely mailed its denial of claim forms.

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

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

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

I would affirm the order of the Civil Court. While an examination under oath (EUO) is mandated when timely requested by the insurance carrier, here defendant failed to present an affidavit from anyone with personal knowledge that the plaintiff did not appear for the EUO. Contrary to the finding by the majority, defense counsel fails to explain how he knows that plaintiff failed to appear for the EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Decision Date: August 12, 2010

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 (Richard Velasquez, J.), entered October 15, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 summary judgment dismissing the complaint, arguing that it had timely denied plaintiff’s claim on the ground of lack of medical necessity and that, based on an annexed affirmed peer review report, it had established that the medical supplies
provided were not medically necessary. In opposition to the motion, plaintiff argued that defendant had failed to establish the timely mailing of its denial of claim form and
that defendant had failed to annex copies of the medical reports and/or records upon which the peer reviewer had relied in reaching his conclusion that the supplies provided were not medically necessary. The Civil Court granted defendant’s motion, finding that plaintiff had failed to rebut defendant’s showing of a lack of medical necessity.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claim at issue on the ground of lack of medical necessity (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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided (see e.g. 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 & [*2]11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment.

In opposition to the motion, plaintiff failed to raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (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]). While plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, plaintiff failed to demonstrate that it needed said documents in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; 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]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 12, 2010

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 (Diane A. Lebedeff, J.), entered February 5, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover the sum of $25,000 in assigned first-party no-fault benefits, defendant insurance company moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor’s injuries were preexisting, chronic or progressive degenerative conditions which did not result from the subject accident. The occurrence which forms the subject matter of this action took place on March 20, 2007. On June 12, 2007, plaintiff, an orthopedic surgeon, performed “anterior cruciate ligament reconstruction with suprapateller pouch and tendon left knee partial debridement, medial meniscectomy [and] left medial arthroscopic patellofemoral condoplasty” on plaintiff’s assignor at the Hospital for Special Surgery, for which he submitted a claim for $25,900. The claim was denied based upon an independent peer review on July 11, 2007 advising that the left knee injury was unrelated to the accident.

In support of its motion for summary judgment, defendant submitted, among other things, affirmed peer review reports and an “independent radiology report” of the MRI images of the affected area, which identified degenerative processes accounting for the conditions treated by plaintiff. In opposition, plaintiff submitted an affidavit from plaintiff’s president, a “board-certified” surgeon, who had performed the procedure. After defendant served reply papers in further support of the motion, plaintiff served a sur-reply, which contained a more detailed affidavit executed by the doctor. The Civil Court denied defendant’s motion, finding that plaintiff had raised issues of fact. This appeal by defendant ensued.

We note, at the outset, that plaintiff’s “Supplemental Affirmation in Opposition” is, in reality, a sur-reply, for the submission of which no showing of “good cause” had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d
463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). “It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate” (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant’s papers established, prima facie, based on objective medical evidence, that the assignor’s injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: August 02, 2010

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 (Diane A. Lebedeff, J.), entered April 29, 2009. The order denied plaintiff’s motion to vacate a prior order which had granted on default defendant’s motion to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action in July 2002 to recover assigned first-party no-fault benefits. Issue was joined in September 2002, and there was no further activity in relation to the litigation until March 2007, when defendant served on plaintiff’s counsel of record a 90-day demand pursuant to CPLR 3216 (b). Plaintiff did not respond to the demand, and, by order entered November 24, 2008, the Civil Court granted defendant’s motion pursuant to CPLR 3216 (a) to dismiss the complaint for failure to prosecute, upon plaintiff’s default in opposing the motion. Thereafter, plaintiff moved to vacate the November 24, 2008 order, alleging that it had no notice of the motion, the papers having been improperly served on plaintiff’s former counsel, who had been replaced as counsel by present counsel in May 2003. The Civil Court denied the motion, citing plaintiff’s failure to produce a consent to change attorney form executed by plaintiff or to file said form with the Civil Court. Plaintiff appeals and we affirm.

If a notice of change of attorney form was executed in 2003, there is no proof that it was filed with the Civil Court at any time prior to defendant’s service of the 90-day demand in March 2007 (see CPLR 321 [b]; Moustakas v Bouloukos, 112 AD2d 981, 983 [1985]). Plaintiff’s present counsel does not claim that he communicated with defendant or its counsel during that four-year period, nor do any grounds appear on this record to support an inference that defendant was aware of the change of counsel, thereby rendering the filing requirement a mere “formality,” [*2]which may be disregarded (Bevilacqua v Bloomberg, L.P., 70 AD3d 411, 412 [2010]). Consequently, the counsel on whom defendant served its 90-day demand remained the counsel of record, and service of the demand and of the subsequent motion to dismiss on said counsel was proper (Stancage v Stancage, 173 AD2d 1081 [1991]), as was the order dismissing the complaint on plaintiff’s default in opposing defendant’s motion to dismiss. Under the circumstances, the noncompliance with the filing and notice requirements of CPLR 321 (b) represented no mere neglect of formalities, but the failure to transfer representation to new counsel (Splinters, Inc. v Greenfield, 63 AD3d 717, 719 [2009]; Hawkins v Lenox Hill Hosp., 138 AD2d 572, 573 [1988]; Moustakas v Bouloukos, 112 AD2d at 983; see Weinstein-Korn-Miller, NY Civ Prac ¶ 321.11 [2d ed]).

Accordingly, the order denying plaintiff’s motion to vacate the order dismissing the complaint is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010

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 (Alice Fisher Rubin, J.), entered August 5, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands, to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order.

ORDERED that the order is modified by providing that defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands is granted to the extent of compelling plaintiff to provide the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection within 60 days of the date of this decision and order; 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 defendant cross-moved to compel plaintiff to provide discovery and to produce its owner, Valentina Anikeyeva, for an examination before trial. The Civil Court denied plaintiff’s motion for summary judgment as premature and granted defendant’s cross motion to compel plaintiff to provide discovery to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant argued in opposition to plaintiff’s summary judgment motion that the motion must be denied since there were “outstanding discovery demands,” to wit, its notice for an examination before trial and its supplemental demand for discovery and inspection. The Civil [*2]Court’s order did not compel plaintiff to appear for an examination before trial and defendant has not cross-appealed. As the order only compelled plaintiff to provide written verified discovery responses to all of defendant’s written demands, only those items sought in defendant’s supplemental demand for discovery and inspection are addressed herein.

Since the supplemental demand for discovery and inspection was served on plaintiff’s counsel on October 12, 2007, and plaintiff failed to challenge the propriety of such demand for discovery and inspection within the time prescribed by CPLR 3122, plaintiff is obligated to produce the information sought therein except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). The record reveals that, in opposition to plaintiff’s motion and in support of its cross motion, defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible, as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), to recover assigned no-fault benefits, a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records and management agreements, defendant will be able to ascertain whether plaintiff is ineligible to recover assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

We note that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns (see CPLR 3101 [a]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is entitled to discover the information sought in item 6.

However, to the extent that defendant seeks, in item 5, to compel the production of Ms. Anikeyeva’s personal income tax returns, defendant has failed to establish its entitlement to such documents. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s personal income tax returns are properly discoverable, particularly since defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Likewise, at this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s bank account statements, “bank account registers, cancelled checks and ledger” are “material and necessary” (CPLR 3101 [a]) to the defense of this action (see Altidor, 22 AD3d 435; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51636[U] [App Term, 1st Dept 2009]; cf. Dore, 264 AD2d 804). Accordingly, [*3]defendant is entitled to the information sought in items 12 and 13, solely with respect to plaintiff.

Item 7 seeks a copy of the assignment. However, defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, because defendant is now precluded from litigating the validity of the assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]), defendant’s demand for a copy of the assignment is palpably improper.

Finally, item 11 seeks expert witness disclosure. In view of the fact that CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information within any specifically restricted time limit, plaintiff should not be compelled to respond to item 11 at this juncture.

Accordingly, defendant is entitled to the production of the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection.

We note that, contrary to plaintiff’s contention, the Civil Court properly held that plaintiff’s motion for summary judgment was premature pending the completion of discovery (see CPLR 3212 [f]; Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637 [2010]). Plaintiff’s remaining contention lacks merit.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010