Law Offices of Mandell and Santora, (Eitan Nof, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 12, 2014. The judgment, entered upon a decision of the same court dated February 7, 2014, insofar as appealed from, after a nonjury trial, in effect, dismissed so much of the complaint as sought to recover upon a claim in the sum of $12,862.87.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 7, 2014 is deemed a premature notice of appeal from the judgment entered March 12, 2014 (see CPLR 5520 [c]); and it is further,

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

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for a directed verdict upon a claim dated November 3, 2007 was granted and the trial proceeded with respect to the medical necessity of a claim seeking the sum of $12,862.87 for spinal surgery. Defendant’s witness was the orthopedist who had prepared the peer review report upon which defendant relied when it denied plaintiff’s claim. Although plaintiff’s counsel cross-examined defendant’s witness, plaintiff did not call any witnesses to rebut defendant’s doctor’s testimony that the surgery was not medically necessary because it was not causally related to the accident in question. The Civil Court awarded plaintiff the principal sum of $1,376.32 upon the November 3, 2007 claim, and found in favor of defendant and dismissed the complaint insofar as it sought to recover upon the claim for spinal surgery. Plaintiff appeals from so much of the judgment as, in effect, dismissed so much of the complaint as sought to recover upon the claim in the sum of $12,862.87.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, [*2]bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

The record supports the determination of the Civil Court, which was based upon its assessment of the credibility of defendant’s witness. Since defendant sufficiently rebutted the presumption of medical necessity and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the spinal surgery was medically necessary, we find no basis to disturb the Civil Court’s finding with respect thereto (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]).

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

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

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie A. Tebbett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). In the alternative, defendant, in effect, sought summary judgment dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule. By order entered March 16, 2012, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at the EUOs.

According to the affidavit submitted by defendant in support of its motion, the initial EUO had been rescheduled two times by mutual agreement, each time prior to the scheduled date. We do not consider a mutual rescheduling, which occurs prior to the date of a scheduled [*2]EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Consequently, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not establish as a matter of law that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at two duly scheduled EUOs should have been denied.

Since the Civil Court did not determine the branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule, the matter is remitted to the Civil Court for a determination of that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

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

Decided on July 14, 2017

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

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 15, 2014, deemed from a judgment of the same court entered February 11, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 15, 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 $4,188.66.

ORDERED that the judgment is affirmed, with $25 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 the claims at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs). The Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground, among others, that the facts submitted by defendant in support of its cross motion showed that, while defendant declared that plaintiff had failed to appear for scheduled EUOs, defendant had rescheduled each EUO before the date set for each EUO and that, prior to each EUO, defendant was aware that plaintiff was unable to appear. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant denied the claims at issue based upon the alleged failure of plaintiff to appear at duly scheduled EUOs. With respect to the claims which defendant admits it received between January 18, 2012 and February 14, 2012, defendant’s moving papers demonstrate that the first EUO scheduling letter sent to plaintiff was mailed more than 30 days after defendant had received these claims. As a result, contrary to defendant’s contention, defendant failed to demonstrate that it had properly denied these claims based upon plaintiff’s failure to appear for [*2]duly scheduled EUOs (see Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 49 Misc 3d 145[A], 2015 Misc 3d 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Since the EUO scheduling letters sent to plaintiff were a nullity with respect to these claims, defendant failed to establish the existence of a triable issue of fact with respect thereto (see O & M Med., P.C., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U]).

While defendant’s time to pay or deny the remaining claims may have been tolled by EUO scheduling letters sent to plaintiff by defendant, as the Civil Court noted, defendant’s papers demonstrate that, prior to each scheduled EUO of plaintiff, defendant sent plaintiff a letter rescheduling the EUO of plaintiff for a different date. As a result, the fact that plaintiff did not appear on the date originally set forth in a scheduling letter does not constitute a failure to appear, as defendant had already changed the date for which that EUO had been scheduled. In view of the foregoing, defendant failed to show a triable issue of fact as to whether it had properly denied these claims based upon plaintiff’s failure to appear for two duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), let alone establish it as a matter of law.

Accordingly, the judgment is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 7, 2014. The order, upon a motion by plaintiff for summary judgment and a cross motion by defendant for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126, denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date as the parties shall agree, but in no event later than 60 days thereafter; 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. Defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126. By order entered March 7, 2014, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment.

The affidavit submitted by defendant’s claims representative stated that each claim had been received on July 31, 2012, but also stated that defendant had first received notice of the claims with the submission of the claims on July 10, 2012. In light of this discrepancy, the record does not establish, as a matter of law, that defendant timely denied plaintiff’s claims based upon a late notice of the accident (see generally Complete Radiology, P.C. v Progressive Ins. [*2]Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiutek v Clarendon Natl. Ins. Co., 33 Misc 3d 127[A], 2011 NY Slip Op 51840[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), a precludable defense. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint should have been denied.

However, the record establishes that plaintiff did not serve responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure, or appear for an examination before trial. Indeed, plaintiff failed to oppose this branch of defendant’s cross motion. CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s denial of claim form denied the claim on the ground that the amount billed exceeded the amount permitted by the workers’ compensation fee schedule and as defendant is defending this action on that same ground, among others, the discovery demands at issue were material and necessary to defendant’s defense (see e.g. Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter.

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

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint 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 plaintiff and plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered January 24, 2014, the Civil Court granted defendant’s motion.

As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff had been timely, since defendant stated that the letter was sent more than 30 days after defendant had received the claims (see 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]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Moreover, defendant’s moving papers did not demonstrate that the claims had been timely denied (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: July 14, 2017

Decided on July 14, 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 (Carmen R. Velasquez, J.), entered April 9, 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 on the ground that the action is premature because plaintiff had failed to provide requested verification.

Contrary to plaintiff’s contention, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit by plaintiff’s owner, submitted 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 St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123). In view of the foregoing, there is a triable issue of fact as to whether this action is premature (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]).

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 July 14, 2017

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 14, 2017

APPEARANCES OF COUNSEL

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel) for appellant.

Korsunskiy Legal Group, P.C. (Henry R. Guindi of counsel) for respondent.

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

In July 2012, plaintiff (the provider) commenced this action to recover assigned first-party no-fault benefits for medical services rendered to its assignor, who had allegedly been injured in a motor vehicle accident that had occurred on August 8, 2011. Defendant (the insurer) failed to timely answer or appear in this action, and instead commenced a declaratory judgment action in the Supreme Court, New York County, against the provider, among others, seeking a declaration that the defendants in that action were not entitled to recover no-fault benefits arising out of the August 8, 2011 motor vehicle accident.

After the insurer defaulted in the instant action, the provider moved for leave to enter a default judgment against the insurer. The Civil Court granted the motion, and a default judgment in the principal sum of $475 was entered against the insurer on March 6, 2013.^[FN*] In July 2013, the insurer moved to vacate the default judgment and to compel the provider to accept its late{**57 Misc 3d at 19} answer. The provider opposed the motion and cross-moved for “summary judgment.” The insurer did not oppose the cross motion. By order entered July 16, 2014, the Civil Court (Devin P. Cohen, J.) denied the insurer’s motion and granted, on default, the provider’s cross motion, stating that “the judgment stands.”

On July 28, 2014, the insurer moved for “summary judgment” dismissing the complaint, contending that the amount due and owing pursuant to the Civil Court judgment had been satisfied, as an order and judgment in the Supreme Court declaratory action had been entered in [*2]the insurer’s favor on July 14, 2014, declaring that the provider, among others, was not entitled to recover no-fault benefits with respect to the motor vehicle accident at issue. The order and judgment further provided that the insurer recover from the various named defendants therein, including the provider, “costs and disbursements as taxed by the Clerk in the sum of $1,125.” The insurer alleged, in its motion papers, that the judgment in this action had been fully satisfied by virtue of a “partial satisfaction,” resulting from the judgment entered in the Supreme Court declaratory judgment action. Annexed to the motion papers was a document entitled “Partial Satisfaction of Judgment” which had been executed by the insurer’s counsel on July 28, 2014, and which bore the caption of the Supreme Court action. In the alternative, the insurer’s motion sought a “satisfaction of any entered judgment” in the Civil Court, pursuant to CPLR 5020 (c). The provider opposed the insurer’s motion. By order entered April 23, 2015, from which the insurer appeals, the Civil Court denied the insurer’s motion. We affirm.

[1] We initially note that the branch of the insurer’s motion seeking “summary judgment” was inappropriate because a judgment had already been entered against the insurer. However, the insurer also sought, in the alternative, a “satisfaction of any entered judgment” in the Civil Court, based on the judgment in favor of the insurer in the Supreme Court declaratory judgment action. Although reference was made to CPLR 5020 (c) in support of this branch of the insurer’s motion, this provision has no applicability to the circumstances herein. If the insurer was actually seeking the entry of a satisfaction of judgment, the proper way to seek such relief would be by way of a motion pursuant to CPLR 5021 (a) (2). However, in support of its motion, the insurer did not demonstrate that it had filed a partial satisfaction of judgment in the Supreme Court action, in accordance with CPLR 5020 (a). Consequently,{**57 Misc 3d at 20} insofar as the insurer’s motion sought the entry of a satisfaction of judgment in the Civil Court action, such relief was properly denied by the Civil Court.

[2] Notwithstanding the foregoing, it was apparently the insurer’s objective to have a portion of the judgment in the Supreme Court declaratory judgment action fully offset the judgment obtained against it in the Civil Court action. While a court may exercise its “inherent authority to set one judgment off against another” (see Joseph Kali Corp. v A. Goldner, Inc., 49 AD3d 397, 398 [2008]; see also Scianna v Scianna, 205 AD2d 750 [1994]), the granting of such relief rests in the discretion of the court (see Beecher v Vogt Mfg. Co., 227 NY 468, 473 [1920]; Kretsch v Denofrio, 137 App Div 617, 619 [1910]). Assuming, without deciding, that the Civil Court possessed the jurisdiction to entertain such an application (cf. Stilwell v Carpenter, 62 NY 639 [1875]), the Civil Court’s determination not to set off the judgments was not an improvident exercise of discretion.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Footnotes

Footnote *:The record indicates that an amended judgment in the principal sum of $475 (and in the aggregate sum of $939.90) was entered on August 15, 2014.