The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Plaintiff opposed defendant’s motion on the ground that defendant had failed to establish where the accident had occurred, and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennett, 78 AD3d 936 [2010]).

Upon the record before us, we find that defendant failed to demonstrate any potential hardship to proposed witnesses if the action is heard in New York (see Turay, 61 AD3d at 966), and defendant failed to otherwise establish with admissible evidence that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). Consequently, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens should have been denied.

With respect to plaintiff’s cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Defendant asserted that, while the applicable insurance policy had been issued in Texas, the New Jersey courts were the proper forum for plaintiff’s action, as Texas does not offer no-fault benefits. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennet, 78 AD3d 936 [2010]).

In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff’s assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor’s residence. In any event, we note that defendant’s own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant’s motion seeking dismissal based on forum non conveniens, that defendant’s evidence had sufficiently demonstrated a lack of significant contacts to New York.

With respect to plaintiff’s cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant’s motion.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

Glinkenhouse Queen, Esqs. (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 20, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from April 9, 2008 through February 22, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in April 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from April 9, 2008 through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. [*2]Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

Accordingly, the appeal is dismissed.

ALIOTTA, J.P., PESCE and ELLIOT, JJ., concur.

Harris J. Zakarin, P.C. (Harris J. Zakarin of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 8, 2017, deemed from a judgment of that court entered January 22, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 8, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,281.09.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that it had timely denied the claims at issue on the ground that plaintiff had failed to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]), and that the amounts plaintiff sought to recover exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Defendant’s appeal from an order of the Civil Court entered December 8, 2017 denying defendant’s motion and granting plaintiff’s cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $3,281.09 which was entered on January 22, 2018 pursuant to the order (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and had not received the requested verification. However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification. Moreover, we find that, on this record, there is also a triable issue of fact as to defendant’s fee schedule defense, which defense, contrary to the finding of the Civil Court, defendant was not required to establish that it had preserved, as the services at issue were rendered in 2015 (see 11 NYCRR 65—3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, so much of the order entered December 8, 2017 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Paul Kenny

Glinkenhouse Queen, Esqs. (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered February 22, 2018. The order, insofar as appealed from, sua sponte stayed the accrual of no-fault statutory interest from July 26, 2010 through February 14, 2017.

ORDERED that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled in July 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 31, 2017 pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 31, 2017 judgment by recalculating the interest. By order entered February 22, 2018, the Civil Court granted the motion but, sua sponte, stayed the accrual of statutory no-fault interest from July 26, 2010 through February 14, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

Accordingly, the appeal is dismissed.

ALIOTTA, J.P., PESCE and ELLIOT, JJ., concur.

Paul Kenny

Glinkenhouse Queen (Alan Queen and Steven J. Green of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered February 15, 2018. The order, insofar as appealed from, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered February 9, 2017.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered February 9, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for claims submitted to defendant in March 2000, arising from an accident in 1999, was settled in 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on February 9, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple, not compound, rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from so much of an order of the Civil Court as denied its motion.

Plaintiff correctly argues that the claims involved herein are all governed by the former [*2]regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) and that its motion should, therefore, have been granted.

Accordingly, the order, insofar as appealed from, is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered February 9, 2017 is granted.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

Paul Kenny

Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for appellant. Glinkenhouse Queen (Alan Queen and Steven J. Green of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Tracy A. Catapano-Fox, J.), entered February 5, 2018. The order granted plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered January 12, 2017.

ORDERED that the order is affirmed, with $25 costs.

This action by a provider to recover assigned first-party no-fault benefits for claims submitted to defendant in January 2001, arising from an accident in November 2000, was settled in July 2007. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple, not compound, rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Defendant appeals from an order of the Civil Court granting plaintiff’s motion.

Contrary to defendant’s argument, the Civil Court correctly found that the claims involved herein are all governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant’s remaining contention is not properly before this court and, in any event, lacks merit (see Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is affirmed.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

Paul Kenny

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 28, 2019. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of claims that were denied on the ground of lack of medical necessity.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and the portions of claims that were denied on the ground of lack of medical necessity are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 (initial visit) and 97039 (moxibustion), as well as the portions of claims that were denied on the ground of lack of medical necessity.

Plaintiff correctly argues that defendant failed to establish its claimed defense as to the [*2]services billed under CPT code 99203, as defendant did not demonstrate that a different provider had billed for such services and that said provider was previously paid for such services. Plaintiff also correctly argues that defendant could not deny, on the ground that defendant needed more information before it could make a determination with respect to such claims, so much of plaintiff’s claims as sought to recover for services billed under CPT code 97039—instead, it was defendant’s burden to request additional verification in the first instance (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 175 AD3d 455 [2019]), and defendant did not demonstrate that it had done so. Consequently, defendant did not establish its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]) upon plaintiff’s claims seeking to recover for services billed under CPT codes 99203 and 97039.

In addition, plaintiff is correct that defendant was not entitled to summary judgment dismissing the portions of plaintiff’s claims which defendant denied on the ground of lack of medical necessity, as the independent medical examination report submitted by defendant is not in admissible form (see Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 134[A], 2013 NY Slip Op 50063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), which objection plaintiff raised in its opposition papers.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of the claims that were denied on the ground of lack of medical necessity are denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Paul Kenny

Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 24, 2017, deemed from a judgment of that court entered October 19, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 24, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,794.24.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 24, 2017 as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

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 that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered August 24, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment awarding plaintiff the principal sum of $2,794.24 was entered on October 19, 2017. Defendant’s appeal from the August 24, 2017 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 [d]; see also Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant’s remaining argument as to those claims is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it. Further, as noted by the Civil Court, defendant’s motion failed to address the remaining three claims. Consequently, we leave undisturbed so much of the August 24, 2017 order as denied defendant’s motion for summary judgment.

However, defendant correctly argues, as it did in the Civil Court, that plaintiff failed to establish its prima facie entitlement to summary judgment, since plaintiff did not establish either that defendant had failed to deny the claims at issue within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Therefore, plaintiff’s cross motion should have been denied.

Accordingly, the judgment is reversed, so much of the order entered August 24, 2017 as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

Paul Kenny

Decided on December 13, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS