Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 18, 2013. 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, arguing that it had fully paid plaintiff for the supplies at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.

Plaintiff correctly argues on appeal that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff 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]). Therefore, defendant was not entitled to summary judgment dismissing the complaint.

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.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 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 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.

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 defendant’s denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

However, contrary to plaintiff’s contention, plaintiff 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 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 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.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 18, 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 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 denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of 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 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 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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 15, 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 examinations under oath (EUOs).Contrary to plaintiff’s only arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), 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]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is affirmed.

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

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, denied plaintiff’s motion for summary judgment and, upon denying defendant’s cross motion for summary judgment dismissing the complaint, made, in effect, a CPLR 3212 (g) finding in defendant’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature due to plaintiff’s failure to provide requested verification. Insofar as is relevant to this appeal, the Civil Court denied plaintiff’s motion and, upon denying defendant’s cross motion, made, in effect, a CPLR 3212 (g) finding in defendant’s favor, and held that the only remaining issue for trial was whether plaintiff had complied with defendant’s requests for verification.

Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the letters requesting verification had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, the Civil Court’s finding that defendant had established the timely mailing of the verification requests is vacated. However, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment, since the record does not establish, as a matter of law, that the verification requests were untimely or, if they were timely, that defendant received the requested verification and that defendant’s time to pay or deny the claim had expired.

Accordingly, the order, insofar as appealed from, is modified by providing that the CPLR 3212 (g) finding in defendant’s favor is vacated.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered September 27, 2013. The order, insofar as appealed from, granted 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 appeals from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims examiner established that defendant had first learned of the accident on the date it had received an NF-2 form, which form had been submitted more than 30 days after the accident had occurred. Moreover, the denial of claim form informed plaintiff that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (11 NYCRR §§ 65-1.1, 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to defendant’s receipt of the NF-2 form. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[A]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

Appeals from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 1, 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 contention, the affirmation defendant submitted from the doctor who was to perform an independent medical examination (IME) of plaintiff’s assignor 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]; Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In light of the foregoing, we need not reach plaintiff’s contentions with respect to its motion for summary judgment or an alternate defense asserted by defendant.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 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 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.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim at issue. However, since the affidavit from plaintiff’s owner demonstrated that the claim form had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, neither defendant nor plaintiff is entitled to summary judgment.

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.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul A. Goetz, J.), entered March 12, 2015, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept. 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims. Therefore, defendant’s motion for summary judgment dismissing the claim — which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule — should have been granted.

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: September 19, 2016

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul A. Goetz, J.), entered March 12, 2015, modified by granting defendant partial summary judgment dismissing plaintiff’s claim for first-party no-fault benefits billed under CPT codes 97813 and 97814; as modified, order affirmed, without costs.

The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims billed under CPT codes 97813 and 97814 on the ground that the amounts charged were in excess of the fees set forth in the applicable worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept. 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims.

However, triable issues remain as to whether defendant properly denied plaintiff’s claim for $70, billed under CPT code 99202 (initial evaluation), thus precluding summary judgment dismissing this claim (see Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co., 50 Misc 3d 127[A], 2015 NY Slip Op 51849[U][App Term, 1st Dept. 2015]).

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: September 19, 2016