Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2749 Q C

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 7, 2014. The order, insofar as appealed from and as limited by the brief, 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 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim form had been timely and proper and that the sole issue for trial was whether plaintiff’s assignor had failed to appear for the scheduled IMEs.

In support of its motion, defendant submitted an affirmation from the doctor who was to perform the IMEs, which affirmation was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the [*2]complaint is granted.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2515 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Shana A. Kleinman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered September 9, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the second through seventh causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second through seventh causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.

For the reasons stated in Greenway Med. Supply Corp., as Assignee of Tellechea Maria v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2253 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2389 Q C

Law Offices of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Emilia I. Rutigliano, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 20, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $878.67 on its first cause of action.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted for a new trial on the first cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for services it had provided to its assignor, a nonjury trial was held on the first cause of action, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). Prior to defendant calling any witnesses, the Civil Court indicated that, as defendant would not be able to admit into evidence the peer review report upon which the denial of claim had been based “for the truth of what is in there,” defendant would not be able to meet its “burden.”^[FN1] The court disagreed with [*2]defendant’s position that a “substitute doctor” could testify without the peer review report being admitted into evidence and directed a verdict in favor of plaintiff. A judgment was subsequently entered awarding plaintiff the principal sum of $878.67 on its first cause of action.

Contrary to the apparent holding of the Civil Court, an insurer cannot use a peer review report at trial for its “truth,” i.e., to prove the insurer’s defense of lack of medical necessity (see Alev Med. Supply, Inc. v Government Empls. Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24, 26 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Indeed, the “admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony” (A-Quality Med. Supply, 39 Misc 3d at 26). While an insurer’s expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (see e.g. Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), “it is plaintiff’s burden to make an appropriate objection in the event the testimony goes beyond the basis for the denial and, if necessary, produce the peer review report” (Promed Orthocare Supply, Inc. v Geico Ins. Co., ____ Misc 3d _____, 2017 NY Slip Op 51264[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, a new trial is required on the first cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the first cause of action.

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

Footnotes

Footnote 1: In a no-fault trial dealing with a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form; however, it is the plaintiff who has the ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2258 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Miriam Granov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

For the reasons stated in Greenway Med. Supply Corp., as Assignee of Tellechea Maria v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2253 Q C], decided herewith), the order is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2253 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Miriam Granov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavits submitted by defendant established that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2167 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 10, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). While plaintiff’s owner asserts that, upon receiving the EUO scheduling letters, he called defendant’s investigator and left a message asking to reschedule the EUOs, plaintiff nevertheless failed to raise a triable issue of fact, since the person plaintiff’s owner allegedly called was not the investigator identified in defendant’s EUO scheduling letter as the person to be called in case of any issue, and the phone number allegedly called was not the same as the phone number set forth in defendant’s EUO scheduling letter.

Accordingly, the order is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2107 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 14, 2014, deemed an appeal, on the ground of inadequacy, from a judgment of the same court entered August 14, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the July 14, 2014 order granting plaintiff’s motion for summary judgment only to the extent of awarding plaintiff the principal sum of $11.45 and granting defendant’s cross motion for summary judgment to the extent of dismissing the remainder of the complaint, awarded plaintiff the principal sum of $11.45.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 14, 2014 as granted defendant’s cross motion for summary judgment to the extent of dismissing so much of the complaint as sought a sum greater than $11.45 is vacated, and defendant’s cross motion, insofar as reviewed, is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the sum of $3,748.69 for services rendered. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, alleging that, after receiving the bill in question on August 17, 2012, defendant denied the claim in full on September 11, 2012 but had subsequently paid the sum of $256.34 on December 13, 2012. Defendant conceded in its cross motion that, in accordance with the workers’ compensation fee [*2]schedule, it should have paid plaintiff $267.79, and agreed that it should pay the difference of $11.45 with appropriate interest. By order entered July 14, 2014, the Civil Court granted plaintiff’s motion only to the extent of awarding plaintiff the principal sum of $11.45, plus statutory interest thereon, and granted defendant’s cross motion for summary judgment to the extent of dismissing the remainder of the complaint. Plaintiff’s appeal from the July 14, 2014 order is deemed to be an appeal, on the ground of inadequacy, from the judgment entered pursuant thereto on August 14, 2014 (see CPLR 5512 [a]).

Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that the sum of $267.79 would fully compensate plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Consequently, defendant’s cross motion, insofar as reviewed, should have been denied.

However, plaintiff failed to establish its prima facie entitlement to summary judgment on any amount in excess of $11.45, since the proof submitted by plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial with respect thereto that was 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]).

We note that plaintiff correctly argues that it will, at the conclusion of this case, be entitled to recover statutory interest on the sum of $256.34 for the period between the date on which that sum became due and the date on which defendant paid it, and on the sum of $11.45 for the period between the date on which that sum became due and the date on which defendant will have paid it (see Optimal Well-Being Chiropractic, P.C. v MVAIC, 46 Misc 3d 134[A], 2014 NY Slip Op 51861[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is reversed, so much of the order entered July 14, 2014 as granted defendant’s cross motion for summary judgment to the extent of dismissing so much of the complaint as sought a sum greater than $11.45 is vacated, and defendant’s cross motion, insofar as reviewed, is denied.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2066 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Dodge & Monroy, P.C. (Peter X. Dodge, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on two grounds, including that plaintiff had failed to appear for duly scheduled examinations under oath (EUO).

Contrary to plaintiff’s contention, defendant demonstrated, prima facie, that its denial of claim form had been issued within 30 days of its receipt of the bills at issue, and plaintiff failed to rebut that showing. As plaintiff raised no other issue on appeal with respect to defendant’s proof regarding its defense that plaintiff had failed to appear for scheduled EUOs, we need not consider plaintiff’s remaining arguments.

Accordingly, the order is affirmed.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1851 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Rubin & Nazarian (Lawrence R. Miles, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 21, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the third through sixth causes of action and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed independent medical examination scheduling letters.

ORDERED that the order, insofar as appealed from, is modified by striking the findings, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed independent medical examination scheduling letters and that the sole issue for trial is whether the claimant failed to appear for scheduled independent medical examinations; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-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). By order entered July 21, 2014, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branches of plaintiff’s motion seeking summary judgment on the [*2]third through sixth causes of action and, upon denying the branches of defendant’s cross motion seeking summary judgment dismissing the third through sixth causes of action, found, in effect pursuant CPLR 3212 (g), that plaintiff had established “timely and proper generating and mailing [of] its bills,” that defendant had established timely and properly mailing of the IME scheduling letters and denials, and that the “sole issue for trial is whether the claimant failed to appear for the scheduled IMEs.” Plaintiff appeals.

On appeal, plaintiff argues that the branches of defendant’s cross motion seeking summary judgment dismissing the third through sixth causes of action should not have been granted and that plaintiff should be given a finding, pursuant to CPLR 3212 (g), that it established the submission of the relevant claim forms. This court need not consider those arguments, as the Civil Court did not grant any branch of defendant’s cross motion and did make a finding, in effect pursuant to CPLR 3212 (g), that plaintiff had timely submitted the bills.

Plaintiff further argues that defendant’s proof of mailing of the IME scheduling letters was insufficient to establish that they had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Construing that argument to be a challenge to the court’s finding, in effect pursuant to CPLR 3212 (g), that defendant had timely and properly mailed such letters, we agree that the discrepancy between the assignor’s address as listed on the claim forms and on the assignment of benefits form, and the address to which the IME scheduling letters were allegedly sent, demonstrates that it cannot be said that it is “incontrovertible” and “established for all purposes in the action” (CPLR 3212 [g]) that the IME scheduling letters were properly mailed. Consequently, that finding and the finding that the sole issue for trial is whether the claimant appeared for the IMEs should be stricken. We note that plaintiff raises no challenge as to defendant’s proof of mailing of the denials.

Contrary to plaintiff’s argument, plaintiff failed to establish a prima facie showing of entitlement to summary judgment on the third through sixth causes of action, for the reason, among others, that plaintiff failed to establish that the claims underlying those causes of action had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claims 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]).

Accordingly, the order, insofar as appealed from, is modified by striking the findings, in effect pursuant to CPLR 3212 (g), that defendant had properly and timely mailed the IME scheduling letters and that the sole issue for trial is whether the claimant failed to appear for scheduled independent medical examinations.

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

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-748 K C

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.) for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 14, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in her office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the order is affirmed.

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