Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. McDonnell & Adels, P.C. (Linda A. Mule, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered September 5, 2013. The order, insofar as appealed from, granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, to the extent of compelling plaintiff to respond to defendant’s discovery demands and to produce plaintiff’s owner for an examination before trial, and denied plaintiff’s cross motion for summary judgment.

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 of an order of the Civil Court as denied plaintiff’s cross motion for summary judgment and granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to defendant’s notice for discovery and inspection, and its “demand for verified written interrogatories,” to the extent of compelling plaintiff to provide defendant with, among other things, verified responses to defendant’s discovery demands, including “W-2(s), 1099(s) & 941 tax forms; office records, bank records, management, billing & rental agreements; annual salary of owner and employee; [and] proof of payment regarding use of office space,” and to produce plaintiff’s owner for an examination before trial.

Plaintiff argues that defendant is not entitled to the discovery ordered by the Civil Court. However, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d [*2]136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). While discovery demands which concern matters relating to defenses which a defendant is precluded from raising are considered palpably improper and may not be discoverable, notwithstanding the fact that plaintiff did not specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC, 11 Misc 3d 71), upon a review of the record, we find that the discovery at issue is not palpably improper (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 39 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In addition, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

In view of the foregoing, plaintiff’s contention that it is entitled to summary judgment lacks merit because, as the Civil Court noted, plaintiff’s motion is premature (see CPLR 3212 [f]; All Boro Psychological Servs., 39 Misc 3d 9).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Gullo & Associates, LLP ( Cristina Carollo, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 27, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Here, the affirmed report of the doctor who had performed an independent medical examination (IME) of the assignor contained contradictory statements (see e.g. Black v County of Dutchess, 87 AD3d 1097 [2011]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]) as to whether the injury to plaintiff’s assignor’s right knee was “partially causally related to” the accident at issue or caused by “preexisting degenerative changes.” Furthermore, an MRI report that was reviewed by the IME doctor did not set forth an impression of degenerative changes. Nor did the IME doctor indicate that he had examined an operative report on the arthroscopy at issue. Thus, contrary to the determination of the District Court, defendant failed to make a prima facie showing of lack of causation. Consequently, defendant’s motion should have been denied.

Plaintiff’s contention that its cross motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a [*2]matter of law since it did not establish either that defendant had failed to deny the claim 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 a timely denial of the 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]). In view of the foregoing, we do not reach plaintiff’s remaining contention.

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

MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,051.81.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits for various medical supplies it had provided to its assignor, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]). As to the medical necessity of the cervical traction unit for which recovery is sought in the second cause of action, which is the sole issue raised on appeal, defendant’s expert witness testified that he had reviewed the assignor’s medical records and that the cervical traction unit was not medically necessary. After awarding plaintiff a directed verdict on the first cause of action, the Civil Court stated, with regard to the second cause of action, that it had “no choice but to find in favor of the plaintiff,” as there was no proof as to the findings of the author of the peer review report upon which the denial of claim had been based, and therefore the court had no way of knowing whether defendant’s expert witness agreed or disagreed with the original peer reviewer. A judgment was subsequently entered awarding plaintiff $549.18 on the first cause of action and $502.63 on the second cause [*2]of action, as well as statutory interest and attorney’s fees.

The Civil Court erred in refusing to consider expert testimony from the witness who did not prepare the peer review report on the ground that the peer review report was not admitted into evidence, and in indicating that testimony from the author of the peer review report was required. Testimony of an expert witness who did not prepare the peer review report upon which an insurer’s denial of claim was based can be used to prove a lack of medical necessity (see e.g. Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 36 Misc 3d 141[A], 2012 NY Slip Op 51490[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, at trial, an insurer cannot use a peer review report to prove its defense of lack of medical necessity (see e.g. A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). While the expert witness’s testimony should be limited to the basis for the denial as set forth in the peer review report (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, 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. As plaintiff here failed to make an appropriate objection, it was error for the Civil Court to have disregarded the testimony of defendant’s witness. Consequently, a new trial is required on the second cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $549.18 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

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

Decided on July 21, 2017

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

Decided on July 21, 2017

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

Decided on July 21, 2017

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 15, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 the action was premature because defendant had timely and properly requested verification and the verification had not been provided to defendant. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that the only remaining issue for trial was whether defendant had received the verification it had requested.

As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, plaintiff’s action is premature.

In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed, and [*2]defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on July 21, 2017

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

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 (William A. Viscovich, J.), entered May 16, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth 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 moved for summary judgment. Insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing the first, second and fifth causes of action on the ground that these causes of action sought to recover upon the unpaid portions of the underlying claims, which amounts exceeded the amounts permitted by the workers’ compensation fee schedule. Defendant also sought summary judgment dismissing the sixth through eighth causes of action on the ground of lack of medical necessity. By order entered May 16, 2014, insofar as is relevant to this appeal, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth causes of action.

In support of the branches of its cross motion seeking summary judgment dismissing the sixth through eighth causes of action, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (see e.g. 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 affirmed.

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

Decided on July 21, 2017

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