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 (Katherine A. Levine, J.), entered November 12, 2008. The order (1) granted the branch of defendant’s motion seeking leave to renew defendant’s prior motion and, upon renewal, directed plaintiff to return monies paid to it by defendant; (2) directed plaintiff to pay half the cost of defendant’s expert witness at trial; and (3) granted the branch of defendant’s motion seeking, in effect, to vacate the portion of the prior order which, sua sponte, restored the matter to the trial calendar, and directed that plaintiff move for such relief.

ORDERED that the appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, after a judgment in favor of plaintiff was satisfied by defendant, the underlying order in favor of plaintiff, upon which the judgment was entered, and implicitly the judgment, were vacated and the action was placed on the trial calendar. Although the parties dispute the issue, court documents indicate that the action was subsequently dismissed due to plaintiff’s nonappearance. Thereafter, defendant moved, in effect, for restitution of the amounts paid to plaintiff, pursuant to CPLR 5015 (d). The Civil Court granted the motion and, sua sponte, restored the matter to the trial calendar. Subsequently, defendant moved for, among other things, leave to renew the prior motion, and, in effect, to vacate the portion of the prior order which, sua sponte, restored the motion to the trial calendar. By order entered November 12, 2008, the Civil Court again ordered restitution, directed plaintiff to pay half the cost of defendant’s expert witness at trial, and vacated the portion of the prior order which, sua sponte, restored the matter to the trial calendar, with a direction that plaintiff move to restore. The instant appeal by plaintiff ensued. The appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial, [*2]which relief was not sought in defendant’s motion papers, is dismissed on the ground that said portion of the order did not determine a motion made upon notice and is not appealable as of right (CCA 1702 [a] [2]; see CPLR 2211).

The remainder of the order is affirmed. Where a judgment that has already been paid in full is set aside, the party that paid the judgment may seek repayment pursuant to CPLR 5015 (d), which authorizes a court, upon motion, to direct restitution. In our view, the Civil Court providently exercised its discretion in directing such restitution. Moreover, upon a review of the record, we find that, under the circumstances presented, the Civil Court properly directed plaintiff to move to restore the matter to the trial calendar.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 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 (Kathryn E. Freed, J.), entered October 8, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed without costs and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court granted plaintiff’s motion, and this appeal by defendant ensued.

On appeal, defendant argues, as it did in the Civil Court, that the affidavit submitted by plaintiff’s billing manager in support of plaintiff’s motion for summary judgment was insufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518. We agree (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 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 (Delores Thomas, J.), entered September 25, 2006. The order denied the petition of All For Happy Smiles Dental, P.C. to vacate a master arbitrator’s award.

ORDERED that the order is affirmed without costs.

All For Happy Smiles Dental, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award, which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

As the pertinent facts in this case are the same as those in 563 Grand Med., P.C. v Nationwide Ins. Co. (24 Misc 3d 135[A], 2009 NY Slip Op 51493[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), Avanessov v State-Wide Ins. Co. (21 Misc 3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]) and SP Med., P.C. v Country-Wide Ins. Co. (20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]), for the reasons stated in those cases, the instant order is affirmed.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 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 (Lila Gold, J.), entered September 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $139.34 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, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. According to the papers submitted by defendant in support of its motion, plaintiff, a professional corporation licensed to perform acupuncture, sought reimbursement in the sum of $139.34 for an initial acupuncture visit, a claim that defendant denied in its entirety. Plaintiff further sought reimbursement for a series of acupuncture sessions for which it had billed $90 per session. Defendant paid plaintiff for the sessions at the reduced rate of $42.84 per session, which, defendant claimed, was the amount paid to medical doctors for similar services. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff did not submit its claim forms in support of its cross motion for summary judgment. In light of plaintiff’s failure to submit competent evidence, plaintiff failed to establish its entitlement to summary judgment (see CPLR 3212; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Contrary to plaintiff’s contention, defendant’s submission of the claim forms in support of its own motion did not lay the requisite foundation for their admission as evidence pursuant to CPLR 4518, since an acknowledgment of receipt does not “concede the admissibility of the purported claim forms or the facts set forth therein” (see Midborough Acupuncture,P.C., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U]). Accordingly, the Civil [*2]Court properly denied plaintiff’s cross motion for summary judgment.

The affidavit submitted by defendant sufficiently established that its denial of claim forms were 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, 1124 [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]). However, defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit (cf. Rogy Medical, 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]).

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant had timely paid a portion of each of the claims and that defendant had timely denied the balance allegedly due on them. This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff’s complaint with respect to those claims.

We note that, despite plaintiff’s allegations, plaintiff has failed to demonstrate that the New York Workers’ Compensation fee schedules for acupuncture services performed by a medical doctor and by a chiropractor were not “prepare[d] and establish[ed]” by the Chair of the Workers’ Compensation Board (see Workers’ Compensation Law § 13; see also Insurance Department Regulations [11 NYCRR] § 68.1 [a]).

Accordingly, the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon the claim for $139.34 is denied and the order is otherwise affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2010

District Court of Suffolk County, Third District

HUC 1503/2007

Rapuzzi, Palumbo & Rosenberger, P.C.

Jason Moroff, Esq.

Attorney for the Plaintiff

3361 Park Avenue

Wantagh, New York 11793

Bruno, Gerbino & Soriano, Llp

Adam D. Levine, Esq.

Attorney for the Defendant

445 broad Hollow road, Suite 220

Melville, New York 11747

C. Stephen Hackeling, J.

At a trial of the above captioned medical service provider “no-fault” action conducted June 17, 2010, neither side presented witnesses. Instead the plaintiff offered into evidence a Notice to Admit dated May 12, 2010 which asked the defendant to admit it received the attached claim and assignment for no-fault medical provider services for $3,485.00, that no verification of information was requested, and that payment was not made thereon. Thereafter, the plaintiff rested asserting the establishment of a prima facie cause of action pursuant to NY Ins. Law § 5106(a). The defendant asserts that the plaintiff cannot avail itself of the statutory NY CPLR 3123 admissions as it did respond to same. The defendant’s response to the Notice to Admit contained the same verbatim response to each of the forty questions which reads: “Defendant can [*2]neither admit nor deny this matter as it pertains to a material issue of fact that can only be resolved at the time of trial, and is therefore not the proper subject of a Notice to Admit.” It is the defendant’s contention that it need not produce a witness to establish its affirmative defense of lack of medical necessity as the plaintiff has not carried its burden of establishing a prima facie cause of action.

It is noted that the Appellate Courts are split on the availability of Notices to Admit to establish a medical provider no fault insurance claim. This court has previously decided that the Notice to Admit could be used to establish a NY Ins. Law § 5106(a) prima facie cause of action. Advanced Tempromandibular Disorder & Dental Surgery v. Progressive Northeastern Ins. Co., 27 Misc 3d 436 (Suf. Co. Dist. Ct. 2010) 896 NYS2d 830. Subsequent to that decision, the Appellate term of the Supreme Court, First Department has allowed no fault plaintiffs to establish their prima facie case via Sec. 3123 admissions and expressly found that facts such as receipt of a claim and the failure to respond or pay within 30 days were not legal conclusions which constitute inappropriate requests to admit. Central Nassau Diagnostic Imaging, P.C. v. Geico., 2010 NY Slip Op 20244 (App. Term, 1st Dept., 2010).

The plaintiff in this action seeks to push the envelope one step further by asking for a finding that a written timely inappropriate response similarly constitutes a statutory admission sufficient to establish a prima facie case without the need to call a witness.

The Notice to Admit is a procedural device used to narrow the disputed issues to be addressed at trial. See Hodes v. City of New York I, 165 AD2d 168, 566 NYS2d 611 (App. Div. 1st Dept. 1991). If a party declines to do anything in response to the Notice to Admit, the requested admissions are deemed admitted. The proper response as per CPLR Sec. 3123 is either an admission, a denial, or ” if the matters of which an admission is requested cannot be fairly admitted without some material qualification or explanation such party may, in lieu of a denial or statement, serve a sworn statement setting forth in detail his claim..”^[FN1] Unlike requests for written interrogatories where a party is permitted to object in lieu of responding (CPLR 3133 (a)), such a procedure is not authorized with a Notice to Admit. See Webb v. Tire and Brake Distributor, Inc., 13 AD3d 835, 786 NYS2d 636 (NYAD 3rd Dept. 2004), cited in Prime Psychological Serv. P.C. v. Auto One Insurance Co.,18 Misc 3d 1122(A) (NY Civ. Ct. 2008). If there is a request for an improper admission, the correct procedure is to seek a protective order, pursuant CPLR § 3103. See Saqiv v. Gamache, 26 AD3d 368 (N.Y.A.D. 2nd Dept. 2006).

The plaintiff s Notice to Admit has established its prima facie case that; (1) necessary billing documents were mailed to and received by insurer, and (2) that the payments of no-fault benefits was overdue. New York Insurance Law § 5106; See Countrywide Ins. Co. v. 563 Grand Medical, P.C., 50 AD3d 313 (NY AD 1st Dept. 2008). As the defendant has presented no testimony or alternative evidence to rebut the plaintiff’s case, this Court must enter judgment for [*3]the plaintiff in the sum of $3,485.00. The plaintiff shall settle judgment plus appropriate costs, interest and attorneys fees upon twenty (20) days notice.

___________________________

J.D.C.

Dated: June 23, 2010

Footnotes

Footnote 1: The assertion that a fact is too “material” to be admitted or denied does not qualify for this sworn “explanation” exemption.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered July 20, 2009. The order, insofar as appealed from, upon granting defendant’s motion for reargument, denied defendant’s motion to vacate arbitration awards and granted plaintiff’s cross motion for summary judgment.

ORDERED that, on the court’s own motion, the instant action is converted to a special proceeding.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

AIU Insurance Company (AIU) commenced the instant action to confirm arbitration awards issued against defendant State Farm Insurance Company (State Farm) in a mandatory inter-company arbitration proceeding (Insurance Law § 5105) brought by AIU to recover first-party no-fault benefits paid to its insureds as a result of injuries they had suffered in a multi-vehicle accident. State Farm contended that the awards were arbitrary and capricious, and sought to vacate the awards on that basis. The District Court found in favor of AIU, and this appeal by State Farm ensued.

As a preliminary matter, we note that, pursuant to CPLR 7502 (a), “[a] special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy,” and therefore the proper procedure was to commence a special proceeding, not an action, to confirm the arbitration awards pursuant to CPLR 7510 (see Scaduto v DT Indus., 266 AD2d 149 [1999]; Polednak v Country-Wide Ins. Co., 153 AD2d 930 [1989]). Consequently, on this court’s own motion, we convert the action to a special proceeding (see CPLR 103 [c]; see also Saratoga CCM, Inc. v Guarino, 21 Misc 3d 142[A], 2008 NY Slip Op 52385[U] [App Term, 2d & 11th Jud Dists 2008]). [*2]

Upon a review of the record, we find that the awards in this compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762 [2005]). The decisions by the arbitrator indicated that he had considered the evidence proffered by the parties, including the police report, as well as State Farm’s affirmative defense. Thus, it cannot be said that the awards were arbitrary and capricious or that they were unsupported by any reasonable hypothesis (see Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214). Consequently, the District Court did not err in denying vacatur of the awards. We note that, in granting AIU’s cross motion for summary judgment, the District Court, in effect, confirmed the awards. Accordingly, the order, insofar as appealed from, is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 11, 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 (Wavny Toussaint, J.), entered May 1, 2009. The order granted defendant’s motion for summary judgment and denied 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 for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that there was no coverage for the claims at issue because the assignor had breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). Plaintiff appeals from that order, and we affirm.

On appeal, plaintiff’s only contention is that the EUO scheduling letters were “nullities” because they were sent by defendant’s counsel on behalf of defendant, not by defendant directly. Plaintiff’s argument lacks merit. The letters clearly apprised the assignor that counsel had been retained by defendant and that the letters were being sent on defendant’s behalf. Accordingly, the Civil Court properly found that the assignor had breached a condition precedent to coverage, and the order is affirmed.

We reach no other issue.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 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 (Lila Gold, J.), entered November 17, 2008, deemed from a judgment of the same court entered December 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $730.50.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see 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]). [*2]

In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010