Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp. (2022 NY Slip Op 01890)
| State Farm Mut. Auto. Ins. Co. v AK Global Supply Corp. |
| 2022 NY Slip Op 01890 [203 AD3d 556] |
| March 17, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| State Farm Mutual Automobile Insurance Company,
Appellant, v AK Global Supply Corp. et al, Defendants, and Atlas PT PC et al., Respondents. |
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for appellant.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about September 30, 2020, which, to the extent appealed from as limited by the brief, denied plaintiff insurer’s motion for a declaratory judgment on default, upon the first and second causes of action, against defendants Atlas PT PC, Bliss Acupuncture PC, Confident Medical Services, Harbor Medical Group, PC, M&D Elite Pharmacy LLC, MG Chiropractic PC, Red Oak Medical PC, RL Chiropractic Diagnostic PC, Seasoned Acupuncture PC (collectively, the Defaulting Medical Providers), Charles Guillaume, Jean Gedin, Orelien Huggins, John Doe, and Shenigthder Loiseau, unanimously modified, on the law, to grant the motion as to the Defaulting Medical Providers and defendant Huggins, and it is declared that plaintiff has no duty to pay these defendants’ claims arising out of an alleged October 17, 2018 automobile accident, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 2, 2021, which denied plaintiff’s motion to reargue, unanimously dismissed, without costs, as abandoned and as taken from a nonappealable order.
Plaintiff submitted proof of proper service pursuant to CPLR 308 (3) on the Defaulting Medical Providers and proof of proper service pursuant to CPLR 308 (1) on Huggins. Plaintiff failed to provide proof of proper service on defendants Guillaume, Gedin, and Loiseau. It provided affidavits of service on the latter three defendants pursuant to CPLR 308 (4), but, while the affidavits listed the dates and addresses of attempted service, they failed to specify the times of attempted service, as required by CPLR 306 (c).
In any event, plaintiff demonstrated that Guillaume, Gedin, and Huggins (collectively, the claimants) each breached a condition precedent to coverage by failing to appear for properly noticed Examinations Under Oath (EUOs) on two separate occasions (see Hertz Vehicles, LLC v Alluri, 171 AD3d 432, 432 [1st Dept 2019]). Documentary evidence shows that plaintiff sent the EUO scheduling letters to the claimants within 15 business days of receiving the prescribed verification forms (in this case, NF-3 forms), as required (see 11 NYCRR 65-3.5 [b]; Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617 [1st Dept 2018]). Contrary to the motion court’s calculation of the 15-day period as starting from plaintiff’s receipt of the claimants’ NYS Form NF-2s, the NYS Form NF-2 is not a “prescribed verification form[ ],” but an application for no-fault benefits (11 NYCRR 65-3.5 [b]). Plaintiff also submitted an affirmation by attorney Harlan R. Schreiber that demonstrated timely mailing of the EUO scheduling letters by describing the standard practices and procedures used by his office to ensure that such letters are properly addressed and mailed, as well as stating that he personally supervised the mailing of these particular letters (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411, 411 [1st Dept 2015]). Plaintiff further established [*2]that each claimant failed to appear for the duly scheduled EUOs by submitting the transcripts of the EUOs.
Plaintiff demonstrated that it has no duty to pay defendants’ claims in connection with the alleged accident, including the obligation to defend and indemnify Loiseau or John Doe, because it had a “founded belief” that the alleged injuries did not arise out of the subject insured accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Plaintiff did not have the benefit of discovery with respect to the claimants, but its complaint and supporting affidavits allege facts sufficient to state a viable cause of action, and, “[i]ndeed, defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71 [2003]). Plaintiff’s Claim Specialist, Danette Rodriguez submitted an affidavit stating that the policy was procured online to an Albany address 22 days before the collision, that the collision occurred late at night in Queens County, far from Albany, and that the adverse driver, Alister Brown, told the police he did not believe that the claimants were in the insured vehicle at the time of the collision. She stated further that the claimants began undergoing elaborate and mirror treatments the next day, although the police accident report showed no reported injuries at the scene and no damage to either car. Moreover, during an interview with plaintiff, the alleged driver of the insured vehicle, Oneil Pierrisaint, denied ever driving the vehicle, knowing any of the claimants, or knowing Loiseau’s name, which led plaintiff to conclude that Pierrisaint’s identity had been stolen by John Doe, the unknown driver. Finally, Evans Julce, a witness to the collision, stated in an affidavit that the insured vehicle seemed to have collided with Brown’s car intentionally. Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.
Reported in New York Official Reports at American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)
| American Tr. Ins. Co. v Alcantara |
| 2022 NY Slip Op 01871 [203 AD3d 535] |
| March 17, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1] (March 17, 2022)
| American Transit Insurance Company,
Respondent, v Ada Alcantara, Defendant, Advanced Ortho & Joint Preservation PC et al., Appellants, and P&D Merchandise Corp. et al., Respondents, et al., Defendants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.
Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.
Reported in New York Official Reports at American Tr. Ins. Co. v Rivera (2022 NY Slip Op 50180(U))
American Transit
Insurance Company, Plaintiff,
against Erika Rivera, ACCU REFERENCE MEDICAL LAB LIMITED LIABILITY COMPANY, D.H. CHIROPRACTIC, P.C., FAST CARE MEDICAL DIAGNOSTICS, PLLC, GLOBAL SURGERY CENTER LLC, HUDSON TRANSPORTATION LLC, LIBERTY RHEA RANADA EBARLE, PT, P.C., MOUNT SINAI ST. LUKE’S HOSPITAL, MOUNT SINAI ST. LUKES ADULT ED, PRECISION PAIN MANAGEMENT P.C., REBOUND ACUPUNCTURE P.C., SAFE ANESTHESIA AND PAIN, LLC, SHIBRAH M. JAMIL, MD, P.C., SIXTH BOROUGH MEDICAL, UNIVERSITY SPINE CENTER, P.C., and VOK MEDICAL INC, Defendants. |
Index No. 150343/2021
The Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.
The Tadchiev Law Firm, P.C., Fresh Meadows, NY (Simon B. Landsberg of counsel), for defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC.
Gerald Lebovits, J.This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Erika Rivera was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Rivera assigned the right to collect no-fault benefits under that policy to various treating medical providers. American Transit denied those providers’ applications for no-fault benefits.
American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Rivera or to Rivera’s medical-provider assignees. Only Rivera and defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC answered.[FN1]
American Transit now moves for default judgment under CPLR 3215 against the various defaulting defendants, and moves for summary judgment under CPLR 3212 against Global Surgery Center LLC and Safe Anesthesia and Pain LLC. The motion is denied.
DISCUSSION
A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].)
Under these regulations, a no-fault insurer’s request for additional verification in the form of an independent medical examination (IME) must be made within 15 business days of receiving claimant’s verification forms. (See 11 NYCRR § 65-3.5 [b].) The IME must be held within 30 calendar days from receipt of the verification forms. (See id. § 65-3.5 [d].) If the claimant does not appear for the IME, the insurer must send a letter rescheduling the IME within 10 calendar days of the nonappearance. (See 11 NYCRR 65-3.6 [b].)
American Transit has not established that it satisfied these timeframes, as required to establish the facts constituting its claim under CPLR 3215 and to establish prima facie its entitlement to judgment as a matter of law under CPLR 3212.
American Transit has submitted on this motion Rivera’s NF-2 benefits application, dated October 29, 2019. (See NYSCEF No. 19.) American Transit has not, however, submitted any NF-3 verification forms. American Transit thus cannot establish that the first IME here was timely requested or timely scheduled under § 65-3.5. Indeed, the record as it stands casts considerable doubt on the timeliness of the IME: American Transit’s first request, sent on February 13, 2020, scheduled an IME for March 3, 2020—fully 126 calendar days after the date of the NF-2 application. (See NYSCEF No. 17 at ¶ 3; NYSCEF No. 20 at 7.)
American Transit’s papers also reflect that it did not timely reschedule the IME. The IME first scheduled in the February 13, 2020, request letter was rescheduled several times due to the COVID-19 pandemic, and ultimately postponed to June 23, 2020. Rivera did not appear for the June 23 IME date. American Transit did not, however, then reschedule the IME again within 10 days. Its papers reflect instead that it sent a follow-up letter on July 14, 2020—21 calendar days after Rivera failed to appear, not 10. (See NYSCEF No. 17 at ¶ 8; NYSCEF No. 20 at 2.)
American Transit’s motion papers suffer from additional defects. American Transit’s proof that Rivera did not appear for the June 23, 2020, IME date, or the rescheduled August 4, 2020, IME date, is a boilerplate affidavit from its IME physician.[FN2] But that affidavit is not signed. (See NYSCEF No. 17 at 4.) Moreover, the notary’s stamp states that the notary is “Qualified in Suffolk County” while the top of the affidavit reflects that it was prepared in the “County of Nassa [sic].”[FN3] (Id.) This document is not competent evidence of Rivera’s asserted failure to appear for IMEs.
Minor delays in requesting additional verification (or following-up on verification requests) may constitute “a technical defect excusable under 11 NYCRR 65-3.5 (p).” (Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468, 469 [1st Dept 2020] [internal quotation marks omitted]). But American Transit’s outright failure to establish when it first requested an IME relative to when it received provider bills or other verification forms, coupled with the absence of a competent affidavit to establish Rivera’s failure to appear at the rescheduled IMEs, far exceeds the “nonsubstantive technical or immaterial defect or omission” that § 65-3.5 (p) excuses. (See American Transit Ins. Co. v Foster, 2019 NY Slip Op 30746[U], at *4 [Sup Ct, NY County Mar. 26, 2019] [holding substantial and repeated delays in seeking verification not excusable under § 65-3.5 [p]].)
Further, Global Surgery and Safe Anesthesia represent in opposition to summary judgment that American Transit has not yet responded to their discovery requests, rendering the summary judgment motion against them premature under CPLR 3212 (f). (See NYSCEF No. 28 at 14-16.) American Transit has not controverted that representation.
American Transit has thus failed to establish either that it is entitled to default judgment against the defaulting defendants under CPLR 3215, or that it is entitled to summary judgment against the answering defendants under CPLR 3212. It is somewhat doubtful that plaintiff can make out the necessary showings. But this court elects to afford American Transit one more opportunity to do so, rather than dismiss the action outright at this time.
Accordingly, for the foregoing reasons it is
ORDERED that the branch of American Transit’s motion under CPLR 3215 seeking default judgment against the defaulting defendants is denied; and it is further
ORDERED that the branch of American Transit’s motion under CPLR 3212 seeking summary judgment against Global Surgery and Safe Anesthesia is denied; and it is further
ORDERED that American Transit shall, within 30 days of entry of this order, respond to the discovery requests served by Global Surgery and Safe Anesthesia on September 24, 2021 [*2](see NYSCEF No. 11); and it is further
ORDERED that if American Transit does not serve a renewed motion for default judgment and for summary judgment within 60 days of entry of this order, the action will be administratively dismissed; and it is further
ORDERED that Global Surgery and Safe Anesthesia shall serve a copy of this order with notice of its entry on all parties.
DATE 3/8/2022
Footnotes
Footnote 1:American Transit settled with Rivera and two of her treating providers. (See NYSCEF Nos. 3, 6, 8.)
Footnote 2:The affidavit appears to be a generic form document in which the names of the examining physician and the claimant, and the address of the physician’s office, are filled in using a word-processing macro or the equivalent. (See NYSCEF No. 17 at 4.) It states that on the two IME dates at issue, “Erika Rivera never checked in, never had his/her file pulled, [and] was never examined.” (Id. at 4 ¶ 6.)
Footnote 3:It is also unclear why a physician with an office in Manhattan, referred by a company with an office in Nassau County to conduct an examination on behalf of a company that is located in Brooklyn and is represented by counsel located in Brooklyn, would be executing an affidavit before a Suffolk County notary. (See generally NYSCEF Nos. 17, 20; see also NYSCEF No. 16 at 11.)
Reported in New York Official Reports at Premier Anesthesia v Avis Budget Car Rental, LLC (2022 NY Slip Op 50170(U))
[*1]| Premier Anesthesia v Avis Budget Car Rental, LLC |
| 2022 NY Slip Op 50170(U) [74 Misc 3d 1217(A)] |
| Decided on March 1, 2022 |
| Civil Court Of The City Of New York, Queens County |
| Li, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through March 7, 2022; it will not be published in the printed Official Reports. |
Decided on March 1, 2022
Premier Anesthesia,
Plaintiff(s),
against Avis Budget Car Rental, LLC, Defendant(s). |
Index No. CV-704767-20/QU
Plaintiff’s counsel:
Law Offices of Gabriel & Moroff, P.C.
100 Merrick Road, Suite 430 W
Rockville Centre, NY 11570 Defendant’s counsel:
Rubin, Fiorella & Friedman, LLP
630 Third Avenue, 3rd Floor
New York, NY 10017 Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant’s motion for summary judgment dismissing Plaintiff’s complaint: Papers Numbered
Defendant’s Notice of Motion and Affirmation dated August 27, 2020 (“Motion”) and electronically filed with the court on the same date 1II. Background
In a summons and complaint filed on February 20, 2020, Plaintiff commenced action against Defendant insurance company to recover a total of $1,350.00 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Estrada-Leyva on November 6, 2018, plus attorneys’ fees and statutory interest (see Motion, Aff. of Boucher, Ex. A). Defendant moved for summary judgment dismissing Plaintiff’s complaint on the grounds that Defendant was not liable for Plaintiff’s claim. Plaintiff did not oppose Defendant’s motion.
III. Discussion and Decision
CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or [*2]unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).
Here, Defendant argued that it was not liable for Plaintiff’s claim because it did not insure any vehicle involved in the collision which caused Estrada-Leyva’s injury necessitating his subsequent treatment. Rather, Defendant contended that Estrada-Leyva operated a vehicle insured by Tokio Marine America Insurance Company (“Tokio“). To prove its defense, Defendant relied on a police accident report. It is well established that police accident reports contain two layers of hearsay which must be overcome in order for the reports to be admissible. First, the report itself must be rendered admissible through its certification, which must establish that it was made in the regular course of business, that it was the regular course of the business to make it, and that it was made at the time of the act, transaction or occurrence or a reasonable time thereafter (Yassin v Blackman, 188 AD3d 62, 65-66 [2d Dept 2020]). Secondly, statements recorded in the police accident report must fall within a hearsay exception for the statements to be admissible. In our instant case, the police accident report was inadmissible because it was neither certified (Yassin v Blackman, 188 AD3d at 66; Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2d Dept 2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts (LMS Med. Care v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011], see Yassin v Blackman, 188 AD3d at 66). As such, “the report and its contents constitute inadmissible hearsay” (Yassin v Blackman, 188 AD3d at 66). Even if this Court were to consider the inadmissible police accident report, it would not independently establish that Defendant did not insure either vehicle. Instead, the police report indicated “Ins. Code” 764 for the vehicle Estrada-Leyva operated and 100 for the vehicle operated by the other driver. While Defendant maintained that code 764 indicated Tokio, that fact is not apparent from the face of the police report.
While the presence of an insurance code on a police accident report constitutes prima facie evidence that a vehicle is insured (Matter of Lincoln Gen. Ins. Co. v Williams, 73 AD3d 778, 779 [2d Dept 2010]; Matter of Continental Ins. Co. v Biondo, 50 AD3d 1034, 1034 [2d Dept 2008]; Eveready Ins. Co. v Chavis, 150 AD2d 332, 334 [2d Dept 1989]), the issue in this case is whether Defendant insured a vehicle involved in the collision (see Matter of AutoOne Ins. Co. v Hutchinson, 71 AD3d 1011, 1012 [2d Dept 2010]). “Every insurance company authorized to do business in this State is assigned an identification number used by police departments in completing accident reports” (Eveready Ins. Co. v Chavis, 150 AD2d at 334, see Brogan v New Hampshire Ins. Co., 250 AD2d 562, 562 [2d Dept 1998]). In order for Defendant to prove that it did not insure a vehicle involved in the collision, evidence of its insurance code and that its code did not match a code indicated on the police accident report was required (see Brogan v New Hampshire Ins. Co., 250 AD2d at 563). To demonstrate that another insurance carrier insured the vehicles involved in the accident, the identity of the insurance carriers whose codes were indicated on the police accident report was required (see Brogan v New Hampshire Ins. Co., 250 AD2d at 563; Matter of Colonial Penn Ins. Co. v Feldman, 145 AD2d 420, 420-21 [2d Dept 1988]). Defendant presented an affidavit sworn June 9, 2020, in which Clair, a claims and [*3]litigation representative employed by Sedgwick Claims Management Services, Inc. (“Sedgwick“), attested that Tokio was referenced by code 764 in the police accident report; however, she did not establish the basis of her knowledge of that fact, how the other vehicle was insured by Geico or how the police report did not reference Defendant. Therefore, Defendant failed to demonstrate that it did not insure a vehicle involved in the accident (see Brogan v New Hampshire Ins. Co., 250 AD2d at 563), prima facie, based on its Motion papers.
Finally, Clair also attested that Sedgwick handled insurance claims for both Defendant and Tokio, but maintained separate mailing addresses and employed different personnel ensure that each insurer’s claims were handled separately to avoid conflicts of interest (see Motion, Aff. of Clair at 2). Clair attested that she handled Tokio’s claims, including the one at issue in this case. While Clair attested to Sedgwick’s standard claim handling procedures, Clair’s denial of receiving Plaintiff’s claim for No Fault benefits would only establish Tokio’s nonliability for the claim, but not Defendant’s nonliability for the claim.
IV. Order
Accordingly, it is
ORDERED that Defendant’s Motion for summary judgment is denied without prejudice.
This constitutes the court’s Decision and Order.
Dated: March 1, 2022
Queens County Civil Court
Honorable Wendy Changyong Li, J.C.C.Equilibrium of Life Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50113(U))
Reported in New York Official Reports at Equilibrium of Life Acupuncture, P.C. v MVAIC (2022 NY Slip Op 50113(U))
[*1]| Equilibrium of Life Acupuncture, P.C. v MVAIC |
| 2022 NY Slip Op 50113(U) [74 Misc 3d 129(A)] |
| Decided on February 22, 2022 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through February 24, 2022; it will not be published in the printed Official Reports. |
Decided on February 22, 2022
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Brigantti, Silvera, JJ.
570226/21
against
MVAIC, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Judy H. Kim, J.), entered February 22, 2021, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Judy H. Kim, J.), entered February 22, 2021, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant MVAIC’s submission in support of its motion for summary judgment established, prima facie, that there had been no timely filing of a notice of intention to make claim as required by Insurance Law § 5208(a). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant had not been satisfied (see SML Acupuncture P.C. v MVAIC, 55 Misc 3d 138[A], 2017 NY Slip Op 50539[U] [App Term, 1st Dept 2017]).
In opposition, respondent failed to raise any triable issue of fact. MVAIC’s prior denial of the claim on other grounds does not preclude it from asserting a lack of coverage defense (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Matter of State Farm Ins. Co. v Domotor, 266 AD2d 219 (1999), relied upon by Civil Court, involved a waiver of a condition precedent to payment of claims as required under an insurance policy, not a condition precedent to coverage under Insurance Law § 5208.
All concur
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the Court
Decision Date: February 22, 2022Vincent Med. Servs., P.C. v Omni Indem. Co. (2022 NY Slip Op 50141(U))
Reported in New York Official Reports at Vincent Med. Servs., P.C. v Omni Indem. Co. (2022 NY Slip Op 50141(U))
[*1]| Vincent Med. Servs., P.C. v Omni Indem. Co. |
| 2022 NY Slip Op 50141(U) [74 Misc 3d 131(A)] |
| Decided on February 18, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 18, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2018-1277 K C
against
Omni Indemnity Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 10, 2018. 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, with $30 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 appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground, among others, that the action was barred by the statute of limitations.
The affidavit of plaintiff’s owner submitted in support of plaintiff’s cross motion for summary judgment asserted that the subject claim forms were submitted to defendant on or before December 2, 2005, that the claims had not been paid and that statutory interest was to be computed as of 30 days after each claims’ submission. Consequently, the payment due date, as implicitly alleged by plaintiff in its complaint and in the affidavit by plaintiff’s owner, must be deemed to have been in January 2006, that is, 30 days after receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Plaintiff did not commence this action until 2017, after the six-year statute of limitations for contract actions, which is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), had expired. As plaintiff raised no issue of fact as to the timeliness of the action, defendant’s motion to dismiss based on the statute of limitations should have been granted (see A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order insofar as appealed from, is reversed and defendant’s motion for [*2]summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., and GOLIA, J., concur.
ELLIOT, J., taking no part.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 18, 2022American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097)
Reported in New York Official Reports at American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097)
| American Tr. Ins. Co. v Acosta |
| 2022 NY Slip Op 01097 [202 AD3d 567] |
| February 17, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Jony Acosta et al., Defendants, and Northside Acupuncture P.C., et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn (Masksim Leyvi of counsel), for appellants.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay claims from defendants Northside Acupuncture, P.C., Seo Han Medical, P.C., and Straight Up Chiropractic, P.C. in connection with a November 23, 2017 accident, reversed, on the law, without costs, and the motion denied.
The failure to appear for a properly scheduled medical examination (ME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotation marks, brackets, and citation omitted], lv denied 17 NY3d 705 [2011]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an ME, the insurer must establish that it requested MEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). As defendants argued in opposition to the summary judgment motion, because it is impossible to discern from the record whether plaintiff complied with the requisite time frames requiring it to request MEs within 15 days of receiving defendants’ claims and scheduling the MEs within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Gische, Mazzarelli, Friedman, Mendez, JJ.
Manzanet-Daniels, J.P., concurs in a memorandum as follows: Insofar as the majority opinion is premised on our precedent in Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), I am constrained to concur; however, I favor the reasoning of our sister departments that the failure to appear for a medical examination (ME) constitutes a breach of policy term and not a failure of condition precedent that would entitle the insurer to void the policy ab initio. The defense of failure to appear for an ME is more akin to a policy exclusion than a lack of coverage in the first instance such as where the policy had terminated prior to the accident or the injuries were not caused by the covered accident (see e.g. Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]).
Reported in New York Official Reports at American Tr. Ins. Co. v Martinez (2022 NY Slip Op 00963)
| American Tr. Ins. Co. v Martinez |
| 2022 NY Slip Op 00963 [202 AD3d 526] |
| February 15, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Moises Martinez et al., Defendants, and Burke Physical Therapy PC et al., Appellants. American Transit Insurance Company, Respondent, v Saleema Watson Bey et al., Defendants, and Longevity Medical Supply Inc et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020, in index No. 656140/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Burke Physical Therapy, P.C., Columbus Imaging Center, LLC, Metro Pain Specialists, P.C., and Right Aid Medical Supply Corp. in connection with a May 22, 2018 accident, unanimously reversed, on the law, without costs, and the motion denied.
Order, same court and Justice, entered on or about October 6, 2020, in index No. 656207/18, which granted plaintiff’s motion for summary judgment declaring that it need not honor or pay any claims from defendants Longevity Medical Supply, Inc., Sanford Chiropractic, P.C., and Verebrae Chiropractic Care, P.C. in connection with an accident that occurred on June 11, 2018, unanimously reversed, on the law, without costs, and the motion denied.
The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer “when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy” and vitiates coverage ab initio (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient’s failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear (American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841-842 [1st Dept 2015]). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims (11 NYCRR 65-3.5 [b], [d]), plaintiff failed to establish its prima facie entitlement to summary judgment (Longevity Med. Supply, 131 AD3d at 841-842; see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]). Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.
Reported in New York Official Reports at Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)
| Balance Art Acupuncture P.C. v MVAIC |
| 2022 NY Slip Op 22061 [74 Misc 3d 962] |
| February 9, 2022 |
| Tsai, J. |
| Civil Court of the City of New York, New York County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, May 4, 2022 |
[*1]
| Balance Art Acupuncture P.C., as Assignee of Betar Ibrahim, Plaintiff, v MVAIC, Defendant. |
Civil Court of the City of New York, New York County, February 9, 2022
Marshall & Marshall, PLLC, Jericho (Alexis N. Levine of counsel), for defendant.
Law Offices of Gabriel & Moroff, PC, Rockville Centre (Michael J. Poropat of counsel), for plaintiff.
In this action seeking to recover assigned first-party no-fault benefits, defendant moves for summary judgment dismissing the complaint (mot seq No. 001). Plaintiff opposes the motion and cross-moves for summary judgment in its favor against defendant (mot seq No. 002). Defendant opposes the cross motion. The issue presented is whether plaintiff, an acupuncturist, is entitled to reimbursement for acupuncture services at physician rates, under Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (178 AD3d 512, 513 [1st Dept 2019]).
On August 21, 2018, plaintiff’s assignor, Betar Ibrahim, was allegedly injured in an automobile accident (see defendant’s exhibit A in support of mot, complaint ¶ 6). Plaintiff allegedly provided acupuncture services to Ibrahim, billed under Current Procedural Terminology (CPT) codes 97810, 97811, 97813, and 97814 (among others), and submitted eight bills to defendant for dates of service from September 10, 2018, to April 9, 2019, in the total amount of $4,069 (id. ¶ 10; see also defendant’s exhibits B-I in support of mot, NF-3 forms).
[*2]Defendant allegedly partially paid plaintiff $2,834.95, after reducing the billed amounts in accordance with the chiropractic fee schedule.
The chart below summarizes the bills at issue that were partially paid and/or denied:
| Defendant’s Exhibit | Bill No. | Dates of Service | Bill Amount | Date Received | Date NF-10 Form Mailed | Amount Paid |
B | 1 | 9/10, 9/12, 9/24, 9/25-9/26/18 | $558.98 | 11/1/18 | 2/21/2019 | $381.04 |
C | 2 | 10/1, 10/2, 10/6, 10/8/, 10/10, 10/12, 10/15-10/17, 10/19-10/20, 10/23-10/24, 10/26, 10/29-10/30/18 | $1,368.23 | 11/14/18 | 2/20/2019 | $936.02 |
D | 3 | 11/1-11/2, 11/5-11/6, 11/10, 11/16, 11/21/18 | $705.84 | 12/27/18 | 2/22/2019 | $513.20 |
E{**74 Misc 3d at 964} | 4 | 12/4-12/5, 12/10, 12/17, 12/19, 12/22/18 | $513.60 | 1/17/19 | 2/25/2019 | $366.51 |
F | 5 | 1/7, 1/11, 1/18, 1/28/19 | $322.79 | 2/21/19 | 3/6/19 | $220.82 |
G | 6 | 2/4/19-2/25/19 | $338.20 | 3/19/19 | 4/2/19 | $238.56 |
H | 7 | 3/18, 3/29/19 | $174.24 | 4/17/19 | 5/10/19 | $119.20 |
I | 8 | 4/9/19 | $87.12 | 5/16/19 | 5/29/19 | $59.60 |
Totals | $4,069.00 | $2,834.95 |
The Instant Action
On June 29, 2020, plaintiff commenced this action seeking to recover the unpaid balance of $1,234.05, with interest, plus attorneys’ fees (see defendant’s exhibit A in support of mot, summons and complaint). On August 31, 2021, defendant allegedly answered the complaint (see defendant’s exhibit A in support of mot, answer and aff of service).
“On a motion for summary judgment, the moving party 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. If the moving party produces the required evidence, the burden shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action” (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citations and internal quotation marks omitted]).
I. Defendant’s Motion for Summary Judgment (Mot Seq No. 001)
Defendant argues that the bills for acupuncture services were properly paid in accordance with the chiropractic fee schedule.
Pursuant to Insurance Law § 5108 (a), the amounts to be charged by providers of health services “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge.” To meet its prima facie burden that it fully paid the claims in accordance with the fee schedule, the defendant must submit an affidavit from a no-fault/litigation examiner or from a professional medical coder/biller (Merrick{**74 Misc 3d at 965} Med., P.C. v A Cent. Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
The affidavit must show that defendant properly applied the appropriate relative value [*3]units and conversion factor assigned to the CPT code(s) for the services rendered in calculating the amount plaintiff was entitled to be reimbursed (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51450[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Renelique, 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; cf. Adelaida Physical Therapy, P.C. v 21st Century Ins. Co., 58 Misc 3d 135[A], 2017 NY Slip Op 51808[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). If defendant applied a CPT code different from the CPT code under which the services had been billed, the affidavit must provide an explanation for the reduction (see Renelique v American Tr. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51450[U], *1). Lastly, the applicable portion of the fee schedule must be annexed to defendant’s papers (Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Once the insurer meets its prima facie burden of showing that the amounts charged by a provider were in excess of the fee schedule, the burden shifts to the provider “to show that the charges involved a different interpretation of such schedules or an inadvertent miscalculation or error” (Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Here, defendant met its prima facie burden by showing that the acupuncture services were fully paid in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (Acupuncture Now, P.C. v Global Liberty Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51796[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Acupuncture Now, P.C. v GEICO Ins. Co., 61 Misc 3d 142[A], 2018 NY Slip Op 51643[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]). Defendant submitted the{**74 Misc 3d at 966} affidavit of Joseph Howell, a claims representative who received training in the workers’ compensation fee schedule (Howell aff ¶ 2). Howell calculated the reimbursement rate for the acupuncture that Ibrahim allegedly received according to a chiropractor’s rate (Howell aff ¶¶ 21-31). As Howell points out, the fee schedule indicates that the conversion factor for a chiropractor in region IV, where plaintiff is located, is $5.78, and the relative value units for CPT codes 97810, 97811, 97813, and 97814 are 3.55, 3.04, 3.89, and 3.38, respectively (see defendant’s exhibit L in support of mot, fee schedule). Thus, defendant maintains that, for CPT code 97810, plaintiff was entitled to be reimbursed $20.52 (i.e., $5.78 x 3.55) per day; for CPT code 97811, plaintiff was entitled to be reimbursed $17.57 (i.e., $5.78 x 3.04) per day; for CPT code 97813, plaintiff was entitled to be reimbursed $22.48 (i.e., $5.78 x 3.89) per day; and for CPT code 97814, plaintiff was entitled to be reimbursed $19.54 (i.e., $5.78 x 3.38) per day (id. ¶¶ 25-31).
These reimbursement rates are reflected in the explanations of reimbursement accompanying the NF-10 forms (see defendant’s exhibits B-H in support of mot).
Although Howell is not a certified fee coder, his experience and training in workers’ compensation fee schedules is sufficient to establish defendant’s prima facie burden that plaintiff was reimbursed at the rates of the chiropractic fee schedule (see Renelique v American Tr. Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51526[U]; see also Healthy Way Acupuncture P.C. v Metropolitan Prop. & Cas. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51127[U] [App Term, 1st Dept 2014]).
Plaintiff does not claim that defendant’s calculations contain any arithmetic errors, or that Howell incorrectly applied the relative value units. Rather, plaintiff argues that defendant [*4]should have applied the conversion factor for physicians, and that defendant has the burden to show that reimbursement at the chiropractic rate is reasonable, citing Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. (178 AD3d 512, 513 [1st Dept 2019]). Plaintiff also relies upon an impact statement from the Insurance Department on a proposed regulation, which, if enacted, would have set the maximum permissible charge for treatment by a licensed acupuncturist at the maximum permissible charge for a licensed physician under the medical fee schedule (see plaintiff’s exhibit B in support of cross mot and in opp at 12).
As plaintiff acknowledges, the Appellate Term, Second Department expressly held, “as a matter of law, . . . an insurer {**74 Misc 3d at 967}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 Dept, 2d, 11th & 13th Jud Dists 2009]).
In Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C., the Appellate Division, First Department ruled,
“While courts have held 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’ (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] [emphasis added]; see also Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept 2013]), such holdings do not foreclose the use of the physician fee schedule in all cases” (178 AD3d 512, 513 [1st Dept 2019]).
The Court ruled that the plaintiffs had not proffered sufficient evidence to meet their burden that the claims were improperly billed or were in excess of the amount permitted by the physician fee schedule (id. at 513). In any event, the Court found that the defendants raised an issue of fact as to whether the physician fee schedule should apply, because the defendants proffered an affidavit from a licensed acupuncturist who averred that he was consistently reimbursed by workers’ compensation insurers at physician rates over 15 years, which plaintiffs did not rebut (id. at 514).
Here, plaintiff submitted no evidence that it had been consistently reimbursed at physician rates like the acupuncturist in Global Liberty Ins. Co. of N.Y. This court does not read Global Liberty Ins. Co. of N.Y. (178 AD3d 512) as broadly as plaintiff urges. In this court’s view, Global Liberty Ins. Co. of N.Y. does not stand for the proposition that the acupuncturist decides which fee schedule applies, as urged by plaintiff’s fee coder. If that were the case, then every acupuncturist would therefore opt to be reimbursed at the higher conversion factor for physicians. The only objective criteria that Global Liberty Ins. Co. of N.Y. set forth as to whether a licensed acupuncturist could be reimbursed at physician rates was that insurers had historically reimbursed that particular licensed acupuncturist at physician rates.{**74 Misc 3d at 968}
The impact statement from the Insurance Department on a proposed regulation is not dispositive. In 2004, the Insurance Department had issued an opinion that, under section 65.8 (b) of Department Regulation 83, “it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service” (Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004], https://www.dfs.ny.gov/insurance/ogco2004/rg041003.htm [accessed Feb. 8, 2022] [emphasis added]). In the impact statement, the Insurance Department justified the [*5]proposed regulation on the ground that acupuncture treatments are the primary service performed by licensed acupuncturists. Inasmuch as this was already known to the agency, when it previously issued the opinion in 2004, the Insurance Department essentially offered no adequate explanation for the change in its interpretation that the limit should be at rates established for doctors, and so the agency is not entitled to any deference (see Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 453 [2012]). In any event, “interpretations contained in such documents as opinion letters, policy statements and manuals lack the force of law and, therefore, are not entitled to such deference” (Matter of Riverkeeper, Inc. v Seggos, 60 Misc 3d 462, 479 [Sup Ct, Albany County 2018]). Additionally, plaintiff does not dispute defendant’s contention that the proposed regulation was never adopted.
Thus, plaintiff failed to raise a triable issue of fact in opposition (Acupuncture Now, P.C. v Global Liberty Ins., 65 Misc 3d 146[A], 2019 NY Slip Op 51796[U]; Natural Acupuncture Health, P.C., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U]).
II. Plaintiff’s Cross Motion for Summary Judgment (Mot Seq No. 002)
“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law” (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY {**74 Misc 3d at 969}Slip Op 51292[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Once plaintiff meets its prima facie burden, the burden shifts to defendant “to show that it has a meritorious defense and that such a defense is not precluded” (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [citations omitted]).
Plaintiff’s cross motion for summary judgment in its favor against defendant is denied. Plaintiff failed to establish that defendant had issued denials that were without merit as a matter of law. As discussed above, defendant established that defendant properly relied upon the chiropractic fee schedule to adjust the submitted bills.
It is hereby ordered that defendant’s motion for summary judgment dismissing the complaint (seq No. 001) is granted, and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk, upon submission of an appropriate bill of costs; and it is further ordered that plaintiff’s cross motion for summary judgment in its favor against defendant (seq No. 002) is denied.
Pro-Med Med., P.C. v MVAIC (2022 NY Slip Op 50135(U))Reported in New York Official Reports at Pro-Med Med., P.C. v MVAIC (2022 NY Slip Op 50135(U))
[*1]| Pro-Med Med., P.C. v MVAIC |
| 2022 NY Slip Op 50135(U) [74 Misc 3d 130(A)] |
| Decided on February 4, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 4, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-551 K C
against
MVAIC, Appellant.
Bruno, Gerbino, Soriano & Aitken, LLP (Shaun Malone and Susan B. Eisner of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard, Justin Skaferowsky and William Purdy of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 21, 2018. The order denied defendant’s motion to direct the clerk to enter a satisfaction of judgment or, in the alternative, to compel plaintiff to file a satisfaction of judgment.
ORDERED that the order is affirmed, with $25 costs.
Plaintiff commenced this action on July 26, 2001 to recover assigned first-party no-fault benefits for services provided to its assignors, who were allegedly injured in a motor vehicle accident on February 10, 2001. Defendant failed to answer the complaint or otherwise appear in the action. Upon plaintiff’s motion, a default judgment was entered on October 3, 2001, awarding plaintiff the sum of $19,893.34, which included the principal amount sought in the complaint and prejudgment statutory no-fault interest. On March 1, 2018, defendant tendered payment to plaintiff in the amounts of $16,147.12 for the principal sum, $1,071.22 for prejudgment interest, $2,550 for attorney’s fees, $125 for costs and fees, and $29,407.31 for postjudgment interest at a rate of nine per centum per annum pursuant to CPLR 5004. Plaintiff rejected the tender on the ground that defendant had not offered the full amount of interest due.
By order to show cause dated May 9, 2018, defendant moved, pursuant to CPLR 5021 (a) (2), for an order directing the clerk to enter a satisfaction of the $19,893.34 judgment, as the “judgment has been fully paid and satisfied.” In the alternative, defendant moved to compel plaintiff to file a satisfaction of judgment. Plaintiff opposed the motion. By order entered September 21, 2018, the Civil Court denied defendant’s motion.
Postjudgment interest accrues at the rate of 2% per month in a no-fault action, as “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which [provide] specific [interest] directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). Consequently, defendant’s contention that the postjudgment interest accrued at the rate of 9% per year pursuant to CPLR 5004 is without merit (see id.). Additionally, since former 11 NYCRR 65.15 (h) was still in effect at the time of the underlying accident in 2001, the 2% per month interest rate is compounded (see id.).
Accordingly, the order is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 4, 2022