Reported in New York Official Reports at Renelique v Utica Mut. Ins. Co. (2016 NY Slip Op 51530(U))
| Renelique v Utica Mut. Ins. Co. |
| 2016 NY Slip Op 51530(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-352 Q C
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered January 13, 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 on the ground that it had timely and properly denied the claim at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered January 13, 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 was timely, as defendant stated that the letter was sent 35 days after defendant had received the claim (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]). Consequently, defendant failed to demonstrate that it had properly and timely denied the claim 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] [appearance at an EUO is a condition precedent to coverage]).
Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51528(U))
| Renelique v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51528(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-301 Q C
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 11, 2013. 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 moved for summary judgment, and defendant cross moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon the assignor’s failure to appear for duly scheduled independent medical examinations. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Renelique, as Assignee of Rohan Streek v National Liability & Fire Ins. Co. (____ Misc 3d ____, 2016 NY Slip Op ______ [appeal No. 2014-20 Q C], decided herewith), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at New Way Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51527(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
New York Central Mutual Fire Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 15, 2013, deemed from a judgment of the same court entered December 17, 2013 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 15, 2013 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,075.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered July 15, 2013 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion 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 July 15, 2013 which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. A judgment was subsequently entered pursuant to the order, awarding plaintiff the principal sum of $3,075, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Defendant’s motion was properly denied, as defendant failed to establish, as a matter of law, that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Among other things, the affidavit attesting to the second failure to appear indicates, on its face, that it had been notarized before it was signed (see e.g. 97 NY Jur 2d, Summary Judgment, Etc. § 47 [proof in support of summary judgment must be in evidentiary form]).
However, as defendant argues, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross 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]).
Accordingly, the judgment is reversed, so much of the order entered July 15, 2013 as granted plaintiff’s cross motion is vacated, and plaintiff’s cross motion is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Renelique v American Tr. Ins. Co. (2016 NY Slip Op 51526(U))
| Renelique v American Tr. Ins. Co. |
| 2016 NY Slip Op 51526(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-264 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 11, 2013. 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.
Plaintiff billed for one unit of CPT code 99244 at $236.94 and one unit of CPT code 20553 at $600. Defendant defended this action on the ground that the fees sought exceeded the amounts permitted for those codes by the workers’ compenCsation fee schedule. While plaintiff argues on appeal that the affidavit executed by defendant’s coding expert “does not discuss anything specific whatsoever regarding [p]laintiff’s claims,” defendant also submitted an affidavit executed by its no-fault examiner, who described how the fees for the services at issue had been calculated by multiplying the appropriate “relative value” by the appropriate “conversion factor.” Plaintiff’s remaining argument with respect to the coding expert’s affidavit and the specific argument made by plaintiff with regard to CPT code 99244 were not raised in the Civil Court, and are therefore not properly before this court.
With respect to plaintiff’s final argument, which involves CPT code 20553, we find that defendant made a prima facie showing that it had used the assigned relative value for that code to calculate the sum to which plaintiff was entitled to be reimbursed. While plaintiff submitted a doctor’s affidavit addressing CPT code 20553, the doctor’s conclusion is based upon the unsupported allegation that CPT code 20553 is a “by report” code, meaning that it does not have a relative value. This allegation does not rebut defendant’s proof that CPT code 20553 does have a relative value.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Integrative Pain Medicine, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51525(U))
| Integrative Pain Medicine, P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51525(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-82 K C October 13, 2016
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 7, 2014. The order, insofar as appealed from, upon granting defendant’s cross motion for summary judgment dismissing the complaint, imposed conditions.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the conditions imposed by the Civil Court are vacated.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court granted defendant’s cross motion for summary judgment dismissing the complaint on condition that plaintiff’s assignor fail to appear for a new examination under oath (EUO) to be “re-notice[d]” by defendant in accordance with instructions set out in the order. Defendant appeals from so much of the order as imposed those conditions.
Appearance at an EUO is a condition precedent to coverage (see 11 NYCRR 65—1.1; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Upon finding that defendant demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, the Civil Court should not have given plaintiff’s assignor an opportunity to cure its failure to act during claims processing (see IDS Prop. Cas. Ins. Co. v Stracar Med. Services, P.C., 116 AD3d 1005 [2014]). Under the circumstances, the court should have granted defendant’s cross motion for summary judgment unconditionally.
Accordingly, the order, insofar as appealed from, is reversed, and the conditions imposed by the Civil Court are vacated.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51524(U))
| Renelique v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51524(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-20 Q C
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 10, 2013. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s sole argument on appeal with respect to defendant’s cross motion, defendant’s submissions were sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim form had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51523(U))
| Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 51523(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-16 Q C
against
New York Central Mutual Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 5, 2013. 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’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim form at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s argument, that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In any event, the affidavit of defendant’s litigation examiner stated that defendant used the address set forth on the assignor’s application for no-fault benefits.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U))
| Integrative Pain Medicine, P.C. v Praetorian Ins. Co. |
| 2016 NY Slip Op 51520(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2771 Q C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 19, 2013. 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 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied both motions, but, in effect, limited the issue for trial, pursuant to CPLR 3212 (g), to whether the EUO scheduling letters had been properly mailed. As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.
The proof submitted by defendant in support of its cross motion failed to establish a practice and procedure sufficient to give rise to a presumption that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at New Way Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51518(U))
| New Way Med. Supply Corp. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51518(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2720 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered October 16, 2013. 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.
For the reasons stated in Metro Health Prods., Inc. as Assignee of Omar Boyce, v American Tr. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2498 K C], decided herewith), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
Reported in New York Official Reports at Metro Health Prods., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51517(U))
| Metro Health Prods., Inc. v American Tr. Ins. Co. |
| 2016 NY Slip Op 51517(U) [53 Misc 3d 140(A)] |
| Decided on October 13, 2016 |
| 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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2498 K C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2013. 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.
Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016