SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 16, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $11,220.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered in favor of defendant dismissing the complaint.

Plaintiff Specialty Surgical Services commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $11,220. The instant appeal by defendant ensued.

Defendant’s contention, that plaintiff lacks standing since the assignment executed by plaintiff’s assignor was in favor of North Jersey Center for Surgery rather than plaintiff, lacks merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. 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. Consequently, defendant is precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]).

At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, Inc., 45 NY2d 493 [1978]; S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A]; 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]; see also 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]; 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]).

LaCava and Iannacci, JJ., concur.

Molia, J.P., taking no part.
Decision Date: April 16, 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 (Margaret A. Pui Yee Chan, J.), entered March 12, 2009. The order, insofar as appealed from, denied without prejudice defendant’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision denying without prejudice defendant’s motion for summary judgment is stricken and defendant’s motion for summary judgment is remitted to the Civil Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court denied without prejudice both the motion and cross motion. Defendant appeals from so much of the order as denied without prejudice its motion for summary judgment.

The Workers’ Compensation Board (Board) has primary jurisdiction to determine factual issues concerning coverage under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909 [1983]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; Santigate v Linsalata, 304 AD2d 639 [2003]). Where a plaintiff fails to litigate the issue of the availability of workers’ compensation coverage before the Board, “the court should not [*2]express an opinion as to the availability of compensation but remit the matter to the Board” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; see also O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008]).

In the instant case, contrary to plaintiff’s contention, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that plaintiff’s assignor was acting as an employee at the time of the accident and that therefore workers’ compensation benefits were available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Defendant’s motion should not have been denied without prejudice but, rather, should have been held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752). Accordingly, we reverse the order, insofar as appealed from.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 13, 2010

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 (Norman Janowitz, J.), entered November 26, 2008. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for dismissal of the complaint on the ground of res judicata (CPLR 3211 [a] [5]). Defendant argued that plaintiffs had previously commenced an identical action, which had been dismissed pursuant to CPLR 3126 (3) for plaintiffs’ failure to comply with a discovery order. Defendant appeals from the denial of its motion.

“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action” (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51552[U] [App Term, 2d & 11th Jud Dists 2008]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). Plaintiffs’ prior action was dismissed pursuant to CPLR 3126 (3), but the dismissal order did not state that the dismissal was with prejudice, nor does a review of the record reveal the existence of a preclusion order. Consequently, plaintiffs were not barred from [*2]commencing a second action. Accordingly, the District Court properly denied defendant’s pre-answer motion to dismiss the complaint based on the doctrine of res judicata.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: April 13, 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 (Timothy Dufficy, J.), entered December 17, 2007. 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 reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding, pursuant to CPLR 3212 (g), that plaintiff had proved the submission of its claim forms and that defendant had demonstrated that it had timely denied the claims based upon a peer review report, and declaring that medical necessity remained the sole issue for trial.

Defendant appeals from so much of the order as denied its cross motion for summary judgment, arguing that it established prima facie that the supplies billed for were not medically necessary and that plaintiff failed to rebut that showing. Plaintiff concedes the timeliness of defendant’s denials and that defendant’s affirmed peer review report raises a triable issue of fact as to medical necessity, but argues that the matter should not be resolved on a motion for summary judgment because a triable issue as to medical necessity exists.

Contrary to plaintiff’s contentions, once defendant submitted an affirmed peer review report that set forth a factual basis and medical rationale for its peer reviewer’s opinion that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question, shifting the burden to plaintiff to rebut defendant’s showing (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*2]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut defendant’s evidence, defendant was entitled to summary judgment, and its cross motion should have been granted (see e.g. 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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 13, 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 3, 2009, deemed from a judgment of the same court entered March 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 3, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,099.94.

ORDERED that the judgment is reversed without costs, the order entered February 3, 2009 is vacated, 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant submitted an affidavit by its litigation specialist which established that the letters scheduling the IMEs had been timely sent pursuant to defendant’s standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thereafter, defendant submitted a supplemental affirmation, pursuant to the instructions of the Civil Court, from its examining physician. The physician stated therein that plaintiff’s assignor had failed to appear for scheduled IMEs. As a result, defendant established its prima facie case. Accordingly, the judgment is reversed, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the [*2]complaint is granted.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 09, 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 October 27, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant’s cross motion for summary judgment as sought dismissal of the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs and the matter is remitted to the Civil Court for a hearing in accordance herewith and a new determination thereafter of defendant’s cross motion.

In this action by a provider seeking assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment
dismissing the complaint on the ground that the equipment provided was not medically necessary. The Civil Court denied both plaintiff’s motion and defendant’s cross motion, finding that the sole issue for trial was the medical necessity of the supplies provided. Defendant appeals, arguing that its cross motion for summary judgment dismissing the complaint should have been granted because the doctor’s affirmation submitted by plaintiff in opposition to defendant’s cross motion was not in admissible form and was otherwise insufficient to rebut defendant’s peer review report.

We find that plaintiff’s doctor’s “affirmation” submitted in opposition to defendant’s cross motion, if admissible, is sufficient to demonstrate a triable issue of fact as to medical necessity. However, defendant argued, before the Civil Court and on appeal, that plaintiff’s doctor’s “affirmation” is not admissible because it impermissibly bears a stamped facsimile of the doctor’s signature. We recognize that such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motion for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the [*2]opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the signature upon plaintiff’s doctor’s “affirmation,” which will determine whether the “affirmation” was in admissible form (see also Uniform Rules for Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant’s prima facie showing upon its cross motion was rebutted.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of plaintiff’s doctor’s affirmation and for a new determination thereafter of defendant’s cross motion.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: April 09, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 30, 2008. The judgment, entered pursuant to an order of the same court dated April 30, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $3,553.29.

ORDERED that the judgment is reversed without costs, the order dated April 30, 2008 is vacated, 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, the Civil Court, by order dated April 30, 2008, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant appeals from the judgment which was entered, pursuant to the Civil Court’s order, on July 30, 2008, awarding plaintiff the sum of $3,553.29.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (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]). Defendant’s assertion that plaintiff failed to prove submission of its claims to defendant lacks merit. Consequently, plaintiff established its prima facie entitlement to summary judgment. The burden then shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. [*2](67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

Accordingly, the judgment is reversed, the order dated April 30, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 09, 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 (Rudolph E. Greco, Jr., J.), entered October 22, 2008. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a conditional order of preclusion.

ORDERED that the order, insofar as appealed from, 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, plaintiff failed to serve complete responses to defendant’s discovery demands within 45 days as required by a conditional order of preclusion which, among other things, provided that if plaintiff failed to do so, plaintiff would be precluded from offering any evidence in any subsequent motion or at trial. As a result, the conditional order of preclusion became absolute upon plaintiff’s failure to comply (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Calder v Cofta, 49 AD3d 484 [2008]; Callaghan v Curtis, 48 AD3d 501 [2008]; Michaud v City of New York, 242 AD2d 369 [1997]; Saavedra v Aiken, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In order to avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate an excusable default and a meritorious cause of action (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud at 370). Since plaintiff failed to do so, plaintiff is precluded from establishing a prima facie case. Accordingly, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint (see Panagiotou, 66 AD3d 979; Calder, 49 AD3d 484; Callaghan, 48 AD3d 501; Michaud, 242 AD2d 369; Saavedra, 25 Misc 3d 133[A], 2009 NY Slip Op 52207[U]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 09, 2010