February 19, 2013

Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))

Headnote

The court considered the evidence presented by both the plaintiff and defendant in a case where Compas Medical, P.C. was suing Praetorian Ins. Co. to recover assigned first-party no-fault benefits. The main issues decided were whether the defendant had timely scheduled independent medical examinations and whether the plaintiff had provided the requested verification for certain claims. The holding of the case was that the judgment was reversed, and the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first, third, fourth, fifth, sixth, seventh and ninth causes of action were vacated. Plaintiff's motion was denied, and those branches of defendant's cross motion were granted. The court found that the defendant had provided sufficient evidence to support its position that IME scheduling letters had been timely mailed and that the plaintiff had failed to provide requested verification for certain claims. However, the defendant failed to address certain causes of action, so summary judgment was not granted in those instances.

Reported in New York Official Reports at Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))

Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U)) [*1]
Compas Med., P.C. v Praetorian Ins. Co.
2013 NY Slip Op 50249(U) [38 Misc 3d 142(A)]
Decided on February 19, 2013
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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2013

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


PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-563 K C.
Compas Medical, P.C. as Assignee of MARK SCARDE, Respondent, —

against

Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 29, 2010, deemed from a judgment of the same court, entered December 13, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the November 29, 2010 order 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 $2,773.22.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered November 29, 2010, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. After judgment was entered awarding plaintiff the principal sum of $2,773.22, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]). [*2]

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s first, fifth, and sixth causes of action, defendant submitted an affidavit by a supervisor of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affidavits by the doctors who were to perform the IMEs which established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was entitled to summary judgment dismissing these causes of action (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s third, fourth, seventh and ninth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) its initial and follow-up requests for verification to plaintiff and that plaintiff had failed to provide the requested verification. In opposition, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny these claims did not begin to run, and plaintiff’s causes of action upon those claims are premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Defendant’s cross motion failed to address plaintiff’s second and eighth causes of action; therefore, defendant is not entitled to summary judgment dismissing these causes of action. However, the branches of plaintiff’s motion seeking summary judgment on these causes of action should have been denied, as plaintiff failed to establish that those claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law on so much of the complaint as sought to recover upon those claims (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, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted. [*3]

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013