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 November 7, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

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 and defendant’s cross motion for summary judgment. Defendant appeals, as limited by its brief, from so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action.

The affidavit of defendant’s claims representative sufficiently established the timely mailing of the claim denial form (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]). In support of its cross motion, defendant also submitted the affidavit and peer review report of its chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s conclusion that there was a lack of medical necessity for the medical equipment for which plaintiff sought payment in its second cause of action. As a result, defendant made a prima facie showing of its entitlement to summary judgment dismissing plaintiff’s second cause of action (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]), and the burden shifted to plaintiff to raise a triable issue of fact as to medical necessity.

As the doctor’s affirmation submitted by plaintiff in opposition to the cross motion was [*2]sufficient to raise a triable issue of fact as to medical necessity, the Civil Court properly denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action. Accordingly, the order, insofar as appealed from, is affirmed.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 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 March 18, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. Plaintiff opposed the motion. The Civil Court’s order, insofar as appealed from, denied defendant’s motion, finding that plaintiff’s doctor’s affirmation raised a triable issue of fact as to whether the services provided were medically necessary.

Defendant, through the submission of the affidavit of its claims representative and the affirmed independent medical examination report of its examining doctor, made a prima facie showing that it had properly and timely denied plaintiff’s claim based on lack of medical necessity (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50731[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to defendant’s motion, plaintiff submitted an affirmation executed by Dr. Leena Doshi, who described herself as the “owner and medical director of plaintiff.” Defendant objected to the submission of said affirmation in its reply papers, citing CPLR 2106. Since Dr. Doshi was a principal of plaintiff professional corporation, a party to the action, the submission of her affirmation was improper, and the Civil Court should not have considered any facts set forth in said affirmation (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, [*2]265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to proffer any evidence in admissible form to raise an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]), defendant was entitled to summary judgment. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 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 (Noach Dear, J.), entered February 19, 2009. The order, insofar as appealed from, denied so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006).

ORDERED that the order, insofar as appealed from, is reversed without costs, and so much of defendant’s motion as sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006) is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment dismissing plaintiff’s complaint with respect to a claim for $55.69 (for services rendered on October 5, 2006) and a claim for $111.38 (for services rendered from November 12 to 16, 2006), finding that, with respect thereto, the “sole issue for trial is medical necessity of the bills that were denied based on a[n] independent medical examination.” The instant appeal by defendant ensued.

In support of its motion for summary judgment, defendant submitted an affidavit executed by the chiropractor/acupuncturist who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue. In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s “supervising acupuncturist” did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see 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]; see also 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]). Accordingly, so much of defendant’s motion as sought dismissal of the claims at issue should have been granted (id.; see also A. [*2]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]).

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 08, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeals from orders of the Civil Court of the City of New York, Queens County, entered October 31, 2008 (Diane A. Lebedeff, J.) and February 23, 2009 (Anna Culley, J.). The order entered October 31, 2008 granted defendant’s motion to compel plaintiff to produce Drs. Livchits and Levin for depositions. The order entered February 23, 2009 granted defendant’s motion to dismiss the complaint based on plaintiff’s failure to comply with the October 31, 2008 order. The appeal from the February 23, 2009 order is deemed to be from a judgment of the same court entered February 26, 2009, which dismissed plaintiff’s complaint (see CPLR 5520 [c]).

ORDERED that the appeal from the order entered October 31, 2008 is dismissed; and it is further,

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits,
defendant moved for an order compelling plaintiff to produce for depositions Dr. Levin, an owner of plaintiff, and Dr. Livchits, a physician associated with plaintiff who had allegedly treated plaintiff’s assignor. By order entered October 31, 2008, the Civil Court granted defendant’s motion and ordered plaintiff to produce Drs. Livchits and Levin for depositions within 60 days. The court further stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff must submit an affidavit to defendant so stating. Plaintiff appeals from this order. Thereafter, defendant moved to strike plaintiff’s complaint based on plaintiff’s failure to comply with the October 31, 2008 order. Plaintiff submitted opposition papers, in which it conceded that it had not produced a witness for a deposition. By order entered February 23, 2009, the Civil Court granted defendant’s motion to strike plaintiff’s complaint. Plaintiff also appeals from this order. The notice of appeal from the February 23, 2009 order is deemed to be a premature notice of appeal from the judgment entered on February 26, 2009 dismissing plaintiff’s complaint (see CPLR 5520 [c]). [*2]

The appeal from the order entered October 31, 2008 must be dismissed as the right of direct appeal therefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

CPLR 3101 (a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party, or the officer, director, member, agent or employee of a party.” Consequently, the court properly ordered plaintiff to produce Drs. Livchits and Levin for depositions (see CPLR 3101 [a] [1]; see also 7 Carmody-Wait 2d § 42:56, at 100-102; cf. CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; A.M. Med. Servs., P.C. v Allstate Ins. Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling discovery lie within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118 [1999]; Zletz v Wetanson, 67 NY2d 711 [1986]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]). Although striking a pleading is a drastic remedy, it is appropriate where there is a clear showing that the failure to comply with discovery demands was willful or contumacious (see Frias v Fortini, 240 AD2d 467 [1997]). It can be inferred that a party’s conduct is willful and contumacious when the party repeatedly fails to comply with discovery demands and court orders compelling disclosure, without providing a reasonable excuse for noncompliance (see Mei Yan Zhang v Santana, 52 AD3d 484 [2008]; Dinstber v Geico Ins. Co., 32 AD3d 893 [2006]; Kroll v Parkway Plaza Joint Venture, 10 AD3d 633 [2004]). “If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl, 94 NY2d at 123).

In the case at bar, plaintiff did not produce witnesses for depositions despite three motions by defendant seeking to compel plaintiff to produce such witnesses. Moreover, plaintiff failed to offer a reasonable excuse for failing to comply with the October 31, 2008 order compelling plaintiff to produce Drs. Livchits and Levin for depositions. Plaintiff belatedly stated that Dr. Livchits was no longer under its control and that it did not have to comply with the October 31, 2008 order because there was an appeal pending. However, in its order, the Civil Court specifically stated that if Dr. Livchits was no longer under the control of plaintiff, plaintiff need only provide an affidavit stating same. Not only did plaintiff not produce Drs. Livchits or Levin for depositions as required by the order, it failed to provide an affidavit stating that Dr. Livchits was no longer under its control and did not even offer a reason why it did not submit such affidavit. In addition, insofar as plaintiff asserts that it did not need to comply with the October 31, 2008 order because there was an appeal pending therefrom, since plaintiff did not move for a stay of the order pending the determination of the appeal, plaintiff was required to comply with the order (see generally Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Plaintiff’s remaining contention lacks merit.

In light of the foregoing, we find that the Civil Court did not improvidently exercise its discretion in striking the complaint for plaintiff’s willful and contumacious failure to comply with the court’s order compelling depositions of Drs. Livchits and Levin.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 08, 2010

[*1]

Civil Court of the City of New York, Richmond County, March 5, 2010

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for plaintiff.

{**29 Misc 3d at 187} OPINION OF THE COURT

Katherine A. Levine, J.

During oral argument, the parties stipulated that the only issue before the court was whether 11 NYCRR 65-3.6 (b) requires the insurer to notify the injured party when it sends the follow-up verification request to the plaintiff provider. This court has already determined and reiterates herein that the injured party need not be notified. (See Cambridge Med., P.C. v Nationwide Prop. & Cas. Ins. Co., Civ Ct, Richmond County, Feb. 22, 2010, index No. 4561/08.)

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial. (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 889-890 [2d Dept 2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997].) An insurer may toll the 30-day period by properly requesting additional verification within 15 days from the receipt of the no-fault insurance claim forms (NF-3 or claim form). (Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004]; 11 NYCRR 65-3.5 [b].) If the

“requested verification[ ] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” (11 NYCRR 65-3.6 [b] [emphasis added]; see Pine Hollow Med., P.C. v Global Liberty Ins. Co. of N.Y., 25 Misc 3d 244 [Civ Ct, Richmond County 2009].)

If the insurer does not receive the verification request after its follow-up request is sent, its time to pay or deny the claim is tolled pending submission of the requested information. “A claim need not be paid or denied until all demanded verification is provided.” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Westchester County Med.{**29 Misc 3d at 188} Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [2d Dept 1999].) The insurer must pay or deny the claim within 30 days after it receives verification of all relevant information it requested pursuant to its original request for additional information. (11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1]; Westchester County Med. Ctr., supra.)

The clear language of 11 NYCRR 65-3.6 (b) does not even mention the term “applicant” within the context of its requirement that the insurer follow up with the party from whom the verification was requested. Rather, the term “applicant” is only utilized within the context of the further obligation of the insurer to inform the applicant and such person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.

Plaintiff interprets the term “applicant” of 11 NYCRR 65-3.6 (b) to mean that the insurer must inform the assignor and the assignor’s attorney of the reasons why the claim is delayed at the same time the defendant requests a follow-up verification from the provider, since the defendant failed to notify the assignor and the assignor’s attorney, hence negating its motion for summary judgment. The defendant counters that upon the assignment of no-fault [*2]benefits, the medical provider steps into the shoes of its assignor and assumes all of his rights and obligations, thereby becoming the applicant within the meaning of 11 NYCRR 65-3.6 (b). Moreover, defendant argues that the plaintiff provider’s attorney’s letter directing the defendant to send all correspondence, including payment and verification requests to the provider’s attorney’s office or to “face unnecessary litigation,” placed the defendant on notice that the provider’s law firm was acting as the agent for the bills at issue.

In East Acupuncture, P.C. v Allstate Ins. Co. (61 AD3d 202 [2d Dept 2009]), the Second Department recognized that the no-fault regulations do not specifically define the term “applicant,” which generically refers to both the provider/assignee and injured persons in various no-fault sections. In Doshi Diagnostic Imaging Servs. v State Farm Ins. Co. (16 Misc 3d 42 [App Term, 9th & 10th Jud Dists 2007]), the Appellate Term interpreted the term “applicant” as used in 11 NYCRR 65-3.6 (b), to apply to an MRI facility which was the medical services provider/assignee. Accordingly, the plain meaning of 11 NYCRR 65-3.6 (b) refers to any entity, whether an injured person or a provider/assignee, who submits a claim or applies to an insurance{**29 Misc 3d at 189} company for no-fault benefits. (East Acupuncture, P.C., 61 AD3d at 210, citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998].)

Furthermore, the objective behind the aforementioned law is the efficient and speedy processing of the no-fault claims. It therefore begs all reason to require an insurer to seek verification from a party who has divested his interest in no-fault benefits by assigning his rights to his provider. (Mia Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [assignment of no-fault benefits divests eligible injured persons of their interest in no-fault benefits and makes them nonparties to actions commenced by their assignees].) The letter mailed by the plaintiff provider’s attorney to the defendant, directing that all correspondence, including payment and verification requests, be mailed to the plaintiff provider’s attorney clearly placed the defendant on notice that the provider’s law firm was acting as the agent for receipt of all correspondence concerning the bills at issue. (See Lenox Hill Radiology & MIA P.C. v Global Liberty Ins., 20 Misc 3d 434 [Civ Ct, NY County 2008].)

The court therefore deems the provider to be the applicant in the instant matter. Since the plaintiff did not provide the verification sought by the defendant, the 30-day period in which the defendant had to either pay or deny the claim did not begin to run and the instant case is premature. (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999].)

Accordingly, the defendant’s motion is granted.

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Robert B. Taylor, New Rochelle, N.Y., for respondent.

In an action to recover first-party no-fault benefits pursuant to a policy of insurance, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated February 27, 2009, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction or, in the alternative, for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the motion following a prompt application by the plaintiff to the Workers’ Compensation Board to determine his rights under the Workers’ Compensation Law.

“[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; see O’Rourke v Long, 41 NY2d 219 [1976]; Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d 517 [2007]). In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 269 [1991]). Resolution of these questions “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (id. at 269). Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law (see Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d at 518-519; Arvatz v Empire Mut. Ins. Co., 171 AD2d at 269). Covello, J.P., Miller, Dickerson and Belen, JJ., concur.

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, insofar as appealed from as limited by the brief, granted 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, plaintiff moved for an order compelling defendant to appear for an examination before trial. Defendant cross-moved, based upon an affirmed peer review report, for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. In opposition to defendant’s cross motion, plaintiff asserted that the peer review report annexed to defendant’s cross motion was deficient in that it contained a stamped signature and was not in compliance with CPLR 2106. In reply, defendant submitted an affidavit from the peer review doctor in which she stated that she had “personally applied the signature on the peer review report.” The Civil Court denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff appeals from so much of the order as granted defendant’s cross motion, arguing solely that the signature on the peer review report was a stamped facsimile signature.

When an allegation that a peer review report contains a stamped signature of the peer reviewer is properly asserted, it generally cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment, because an issue of fact exists (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]). However, in the instant case, plaintiff’s mere assertion that the peer review report contained a stamped facsimile signature, without any indication as to why it believes the signature is a stamped facsimile signature, is insufficient to raise an issue of fact. In any event, in [*2]reply, defendant submitted an affidavit from the peer reviewer in which she stated that she had “personally applied the signature on the peer review report.” In light of the foregoing, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: February 19, 2010