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 September 22, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $292.24 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground, among others, that the services rendered were not medically necessary (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]). Also annexed to the motion papers were affirmed independent medical examination reports which set forth a factual basis and medical rationale for the peer reviewers’ [*2]opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; 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]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 29, 2008. The judgment, entered upon an order of the same court entered May 8, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, the order entered May 8, 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, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-
moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification request had been sent to plaintiff 29 days after the initial request for verification. A judgment was subsequently entered, and this appeal by defendant ensued.

It is undisputed that defendant timely mailed its initial request 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 request, which was mailed on the 29th day after the initial verification request, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial request for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (___ AD3d ___, 2009 NY Slip Op 08585 [2d Dept 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 *2 [citations omitted]). In view of the foregoing, we reach no other [*2]issue.

Accordingly, the judgment is reversed, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted on the ground that the action is premature.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Respondent Countrywide Insurance Company appeals from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), dated April 27, 2006, which granted the petition to vacate an arbitration award and awarded petitioner Preferred Medical Imaging, P.C. unpaid no-fault benefits in the principal sum of $912.

Per Curiam.

Order (Eileen A. Rakower, J.), dated April 27, 2006, affirmed, without costs.

Civil Court properly vacated the arbitration award issued in an arbitration proceeding commenced by the provider, Preferred Medical Imaging, P.C., to recover first-party no-fault benefits, since the court correctly concluded that the award was not “supported by a reasonable hypothesis and was … contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]). The arbitrator’s conclusion, which was sustained by the master arbitrator, that the provider was required to establish the medical necessity of the services rendered was contrary to settled law (see e.g. Mary Immaculate Hosp v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Metro. Radiological Imaging, P.C. v Country-Wide Ins. Co., 19 Misc 3d 130[A] [2008]).Respondent-appellant Countrywide Insurance Company’s remaining contentions are without merit.

We note respondent-appellant’s three and a half year delay in perfecting this appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 18, 2009

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 June 12, 2008. The order denied defendant’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that there was a triable issue of fact as to whether the alleged accident had occurred. The sole issue raised on appeal is whether defendant made a prima facie showing that plaintiff’s assignor’s injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), such that the burden shifted to plaintiff to raise a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of its motion, defendant annexed the affidavit of its insured, who averred that she had not hit any pedestrians. This affidavit was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Since plaintiff failed to raise a triable issue of fact in opposition to the motion, defendant’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009

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 December 11, 2007. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed without costs.

On November 21, 2006, plaintiff, a provider, commenced the instant action to recover assigned first-party no-fault benefits for a claim which was submitted to defendant on April 28, 2000. Defendant moved to dismiss the complaint on the ground that it was time-barred by the six-year statute of limitations. Plaintiff opposed defendant’s motion arguing that since this was defendant’s second pre-answer motion to dismiss, it was procedurally defective. The Civil Court granted defendant’s motion and dismissed the complaint. The instant appeal by plaintiff ensued.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) may be made at any time before service of the responsive pleading is required but no more than one such motion shall be permitted (see CPLR 3211 [e]). Where, as here, the original motion to dismiss the complaint pursuant to CPLR 3211 (a) is not decided on the merits, a subsequent motion to dismiss pursuant to CPLR 3211 (a) does not violate the single motion rule set forth in CPLR 3211 (e) (see Curtis v Chetrit, 243 AD2d 423 [1997]; Breiterman v Haidt, 4 Misc 3d 130[A], 2004 NY Slip Op 50683[U] [App Term, 1st Dept 2004]). Plaintiff’s remaining contention is not preserved for appellate review.

Accordingly, the order granting defendant’s motion to dismiss the complaint is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur. [*2]
Decision Date: December 15, 2009

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 February 26, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’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, plaintiff appeals from an order which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit a timely notice of claim (Insurance Department Regulations [11 NYCRR] § 65-1.1) and that plaintiff had failed to provide a “reasonable justification of the failure to give timely notice” (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]).

On appeal, plaintiff contends that defendant is not entitled to summary judgment because the affidavit of defendant’s no-fault adjuster is inadmissible inasmuch as it failed to comply with CPLR 2309 (c). However, as this contention is raised for the first time on appeal, it is waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff further argues that defendant is precluded from relying upon plaintiff’s untimely notice of claim because defendant’s denial of claim form did not advise plaintiff that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice,” as required by Insurance Department Regulations (11 NYCRR) § 65-3.3 (e). Said issue was likewise raised for the first time on appeal, as it differs from plaintiff’s contention in the Civil Court, which did not challenge the sufficiency of defendant’s denial of claim form but, [*2]rather, asserted that defendant did not demonstrate that plaintiff had failed to
provide a reasonable justification for the untimely notice of claim. Consequently, this contention by plaintiff is similarly waived. Accordingly, the order is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 24, 2008. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.; sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC and granted the branches of defendant’s cross motion for summary judgment dismissing the complaint insofar as asserted by plaintiffs D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action is treated as an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the appeal by plaintiff D.A.V. Chiropractic, P.C. is dismissed as abandoned; and it is further,

ORDERED that the order, insofar as appealed from and reviewed, is modified by providing that so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion; as so modified, the order is affirmed without costs. [*2]

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignors from March 2004 through July 2004, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. The District Court, sua sponte, stayed the action as to plaintiff A.B. Medical Services, PLLC (A.B. Med.) without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., so that said plaintiff “can properly dissolve and obtain the appointment of a receiver or liquidation trustee to maintain the action,” denied the branches of plaintiffs’ motion seeking summary judgment in favor of plaintiffs Lvov Acupuncture, P.C. (Lvov) and D.A.V. Chiropractic, P.C. (D.A.V.), and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov and D.A.V. The instant appeal by plaintiffs ensued.

For the reasons stated in A.B. Med. Servs., PLLC a/a/o Beauliere v Travelers Indem. Co. (___ Misc 3d ___, 2009 NY Slip Op _____ [Appeal No. 2009-549 N C], decided herewith), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. without determining the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med. is granted, said provision is stricken, and the matter is remitted to the District Court for a determination of said branch of plaintiffs’ motion.

It is uncontroverted that defendant’s denial of claim forms and verification requests were proper and timely. Contrary to Lvov’s contention, the denial of claim forms pertaining to Lvov clearly informed it of the insurer’s position regarding any disputed matter (see Insurance Department Regulations [11 NYCRR] § 65-3.2 [e]), and included the information called for in the prescribed denial of claim form (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). As the remaining contentions asserted by Lvov have no merit, the District Court properly denied the branch of plaintiffs’ motion seeking summary judgment in favor of Lvov and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by Lvov.

We note that no issue is raised on appeal regarding so much of the order as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by D.A.V. Accordingly, the appeal by D.A.V. is deemed abandoned (see e.g. Pizzaro v State of New York, 19 AD3d 891 [2005]) and is, therefore, dismissed.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 09, 2009

[*1]

Supreme Court, Appellate Term, Second Department, December 9, 2009

APPEARANCES OF COUNSEL

Picciano & Scahill, P.C., Westbury (Jason Tenenbaum of counsel), for appellant. Ilona Finkelshteyn, P.C., Brooklyn, for respondent.

{**26 Misc 3d at 40} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served various discovery requests, seeking, among other things, to conduct an examination before trial of plaintiff. Subsequently, defendant served plaintiff’s assignor with a notice of deposition and notified plaintiff’s counsel of the deposition request. When the assignor failed to appear for the deposition, defendant moved to dismiss the complaint, arguing that, by virtue of the assignment, party status may be imputed to the assignor and, even if such status could not be so imputed, the assignor was under the plaintiff assignee’s control (see CPLR 3126 [3]). The Civil Court denied the motion, and defendant appealed.

By its terms, the CPLR 3126 (3) dismissal sanction is applicable only to the disclosure violations of parties, not nonparties (see Siegel, NY Prac § 367 [4th ed]). By virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees (see e.g. Leon v Martinez, 84 NY2d 83, 88 [1994]; Cardtronics, LP v St. Nicholas Beverage Discount Ctr., Inc., 8 AD3d 419, 420 [2004]; 6A NY Jur 2d, Assignments §§ 59, 85). Similarly, a provider’s party status cannot be imputed to the assignor by virtue of an assignment. Thus, since plaintiff’s assignor is not an officer, member or employee of plaintiff or otherwise under plaintiff’s control, the Civil Court properly denied the motion for sanctions as against plaintiff pursuant to CPLR 3126 (Connors, Practice Commentaries, McKinney’s Cons Laws of [*2]NY, Book 7B, CPLR C3101:20; see Doelger, Inc. v L. Fatato, Inc., 7 AD2d 1003 [1959]; National Bank of N. Hudson v{**26 Misc 3d at 41} Kennedy, 223 App Div 680 [1928]; see also Schneider v Melmarkets Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Ctr., 117 AD2d 597 [1986]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51756[U] [App Term, 2d & 11th Jud Dists 2008]; 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]).

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