Decided on December 8, 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
2014-2201 K C

Gary Tsirelman, P.C. (Sebastian Melo, Esq.), for appellant. Gialleonardo, McDonald & Turchetti (Yael Ryzowy, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.) entered August 14, 2014. The order denied plaintiff’s motion for leave to renew its opposition to defendant’s motion for summary judgment dismissing the complaint, which had been granted in a prior order of the same court entered March 7, 2013.

ORDERED that the order entered August 14, 2014 is affirmed, with $25 costs.

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). Upon denying defendant’s motion, the Civil Court, by order entered March 7, 2013, found, in effect, pursuant to CPLR 3212 (g), that defendant had established the generation of the IME scheduling letters and NF-10s, and that plaintiff’s assignor had failed to appear for IMEs. Plaintiff subsequently moved for leave to renew its opposition to defendant’s motion, based upon a trial transcript from an unrelated case, which transcript set forth that the name that defendant’s IME scheduling letters said to contact to reschedule the IMEs, Lynn Carter, was a pseudonym—there was no such employee—and that this was a fact which, plaintiff asserted, would change the prior [*2]determination since, in the instant case, plaintiff’s assignor was also instructed to contact Lynn Carter if plaintiff’s assignor needed to reschedule the IMEs. By order entered August 14, 2014, the Civil Court denied plaintiff’s motion.

For the reasons stated in Brand Med. Supply, Inc., as Assignee of Jeffrey Ferguson v ELRAC, Inc. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2323 K C], decided herewith), the order entered August 14, 2014 is affirmed.

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

Decided on December 8, 2017

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

Decided on December 8, 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
2014-2109 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, 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 25, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

All of plaintiff’s arguments as to why defendant’s cross motion for summary judgment should have been denied are not properly before this court, since they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order is affirmed.

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

Decided on December 8, 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
2014-2087 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, 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 30, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through third causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied; 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. Insofar as is relevant to this appeal, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment on the first through third causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule, defendant is not entitled to summary judgment dismissing the first three causes of action.

However, contrary to plaintiff’s contention, it failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue 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 denials of claim 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 providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied.

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

Decided on December 8, 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
2014-2086 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 5, 2014, deemed from a judgment of the same court entered August 21, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 5, 2014 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 $3,344.87.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered August 5, 2014 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the [*2]proof submitted by plaintiff in support of its motion failed to establish that the claim at issue 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 of claim 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]). As plaintiff failed to establish its prima facie case, its motion for summary judgment should have been denied.

However, the Civil Court properly denied defendant’s cross motion for summary judgment. Contrary to defendant’s contention, the papers submitted in support of its cross motion did not establish, as a matter of law, that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) or that plaintiff’s assignor had failed to appear for independent medical examinations (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

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

Decided on December 8, 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
2014-2041 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 4, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fourth causes of action are denied; 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 appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, its defense that the fees charged with respect to the services underlying the causes of action at issue exceeded the amounts set forth in the workers’ compensation fee schedule therefor (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate, or that it had appropriately applied Ground Rule 11. Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action should have been denied. However, contrary to plaintiff’s final contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment with respect to those causes of action, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue 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 denials of claim 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 providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fourth causes of action are denied.

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

Decided on December 8, 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
2014-1712 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 21, 2014. The order held defendant’s motion for summary judgment dismissing the complaint in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court held the motion in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

The order appealed from did not decide defendant’s motion but instead, as noted, held the motion in abeyance pending a determination by the Workers’ Compensation Board as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and whether, therefore, workers’ compensation benefits might be available (see O’Rourke v Long, [*2]41 NY2d 219 [1976]). Thus, the order is not appealable as of right (see CPLR 5701 [a] [2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305 [2006]) and, under the circumstances, we decline to grant leave to appeal.

Accordingly, the appeal is dismissed.

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

Decided on December 8, 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
2014-1695 K C

Zara Javakov, P.C. (Zara Javakov, Esq.), for appellant. McDonnell, Adels & Klestzick, PLLC, respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 21, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the verification requests and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue 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 of claim 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]). As a result, plaintiff’s motion for summary judgment was properly denied.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decided on December 8, 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
2014-1527 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first through eighth causes of action and, upon denying the branches of defendant’s motion seeking summary judgment dismissing the ninth and tenth causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had “established its 8-unit [Ground Rule] (fee schedule) defense,” thereby “reduc[ing]” the claims underlying the ninth and tenth causes of action “to reflect the proper rate.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second, third, and sixth through eighth causes of action are denied, and the findings, in effect pursuant to CPLR 3212 (g), on the ninth and tenth causes of action are vacated; 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 appeals from so much of an order of the Civil Court as granted the branches of defendant’s [*2]motion seeking summary judgment dismissing the first through eighth causes of action and, upon denying the branches of defendant’s motion seeking summary judgment dismissing the ninth and tenth causes of action, found, in effect pursuant to CPLR 3212 (g), that defendant had “established its 8-unit [Ground Rule] (fee schedule) defense” and stated that “those portions [of the complaint] are reduced to reflect the proper rate.”

There is no merit to plaintiff’s argument regarding the adequacy of the proof submitted by defendant to establish that defendant had fully paid plaintiff for the claims underlying the first, fourth and fifth causes of action in accordance with the workers’ compensation fee schedule. However, as to the claims underlying the second, third, and sixth through tenth causes of action, plaintiff correctly argues that defendant did not demonstrate that it had appropriately reduced the claims in accordance with the workers’ compensation Ground Rules (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second, third, and sixth through eighth causes of action are denied, and the findings, in effect pursuant to CPLR 3212 (g), on the ninth and tenth causes of action are vacated.

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

Decided on November 3, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2015-2893 Q 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, Queens County (Terrence C. O’Connor, J.), entered October 23, 2015. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment dismissing the complaint, and, sua sponte, awarded defense counsel $250 in “fees.”

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, awarded defense counsel $250 in “fees” is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is modified by vacating so much thereof as, sua sponte, awarded defense counsel $250 in “fees”; as so modified, the order 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 had failed to appear for duly scheduled examinations under oath. Plaintiff appeals from an order of the Civil Court which denied its motion, granted defendant’s cross motion, and, sua sponte, awarded defense counsel $250 in “fees.”

For the reasons stated in Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D., as Assignee of Obunike, Norbert Ebere v Geico Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ____ [appeal No. 2015—2806 Q C], decided herewith), the order is modified by vacating so much thereof as, sua sponte, awarded defense counsel $250 in “fees.”

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