Reported in New York Official Reports at MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50863(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 (Devin P. Cohen, J.), entered June 13, 2013. The order, insofar as appealed from, denied defendant’s 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, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignors to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion but made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim forms had been timely and proper, that plaintiff had established its prima facie case and that the sole issue for trial was whether plaintiff’s assignors had failed to appear for duly scheduled IMEs.
On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
In support of its motion, defendant submitted affidavits from the doctor and chiropractor who were to perform the IMEs, which affidavits were sufficient to establish that plaintiff’s assignors had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). However, in opposition, plaintiff submitted affidavits in which the doctor and chiropractor had previously sworn, under penalty of perjury, that when the IMEs were scheduled to occur, they were at a location other than the address set forth in the IME scheduling letters. To the extent defendant’s counsel asserted in a reply affirmation that the discrepancy was due to typographical errors in the prior affidavits, counsel did not demonstrate that she possessed personal knowledge sufficient to establish, as a matter of law, that the doctor and chiropractor were at the correct location when the IMEs were to be held.
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at LMS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50862(U))
| LMS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 50862(U) [51 Misc 3d 151(A)] |
| Decided on June 3, 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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1639 K C
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 16, 2013. The order denied 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, 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). In the alternative, defendant sought summary judgment dismissing two claims on the ground of lack of medical necessity and dismissing theportion of each of plaintiff’s claims which exceeded the amount permitted by the workers’ compensation fee schedule.
While defendant submitted properly sworn statements by the doctor who was scheduled to perform the IMEs, the doctor did not establish that she possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs (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]).
In opposition to the branches of defendant’s motion seeking summary judgment on the grounds of lack of medical necessity and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule, plaintiff submitted affidavits from its owner, which affidavits were sufficient to demonstrate the existence of triable issues of fact.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at Harvard Med., P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50860(U))
| Harvard Med., P.C. v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 50860(U) [51 Misc 3d 151(A)] |
| Decided on June 3, 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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1427 K C
against
Tri State Consumers Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2013. The order granted defendant’s motion for summary judgment.
ORDERED that the order 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, arguing that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.
For the reasons stated in Renelique, as Assignee of Yvon Delgado v Tri State Consumers Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-1709 Q C], decided herewith), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at GBI Acupuncture, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50859(U))
| GBI Acupuncture, P.C. v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 50859(U) [51 Misc 3d 150(A)] |
| Decided on June 3, 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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1419 K C
against
Tri State Consumers Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 12, 2013. The order granted defendant’s motion for summary judgment.
ORDERED that the order 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, arguing that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.
For the reasons stated in Renelique, as Assignee of Yvon Delgado v Tri State Consumers Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-1709 Q C], decided herewith), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50858(U))
| Great Health Care Chiropractic, P.C. v Hereford Ins. Co. |
| 2016 NY Slip Op 50858(U) [51 Misc 3d 150(A)] |
| Decided on June 3, 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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1336 Q C
against
Hereford Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered April 25, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s 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, defendant moved for summary judgment dismissing the complaint. By order entered April 25, 2013, insofar as appealed from and as limited by the brief, the Civil Court denied defendant’s motion.
In support of defendant’s motion for summary judgment dismissing the complaint, 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, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt. (2016 NY Slip Op 50828(U))
against
Northeast Anesthesia and Pain Management a/a/o Thakur Baldeo, Respondent-Respondent.
Petitioner appeals from an order and judgment (one paper) of the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered on or about January 15, 2015, which denied the petition to vacate an arbitration award in favor of respondent awarding it unpaid no-fault benefits in the principal sum of $3,833.85 and granted respondent’s cross-motion to confirm the arbitration award.
Per Curiam.
Order and judgment (one paper) (Jennifer G. Schecter, J.), entered on or about January 15, 2015, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the subject insurance policy was exhausted before petitioner-insurer was obligated to pay respondent’s claim.
An arbitrator’s award directing payment in excess of the monetary limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]; 11 NYCRR 65-1.1). Moreover, such error “will not be waived if the party relying on it asserts it . . . in opposition to an application for confirmation” [citation omitted] (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d at 822).
Petitioner’s submissions in support of its petition to vacate the award and in opposition to the cross motion to confirm – including an attorney’s affirmation, the policy declaration page showing the $50,000 policy limit, and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no-fault benefits to respondent and [*2]other health care providers before petitioner was obligated to pay the claims at issue here (see 11 NYCRR 65-3.15; Mount Sinai Hosp. v Zurich Am. Ins. Co., 15 AD3d 550 [2005]; brief for plaintiff-appellant in Mount Sinai Hosp. v Zurich Am. Ins. Co., supra, available at 2004 WL 3417457, *4 [insurer relied upon “affirmation of its attorney with attachments of alleged payout sheets, bills submitted by providers, and other documents” to show policy limits exhausted]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U][App Term, 1st Dept. 2011]). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.
We note that, contrary to respondent’s contention, defendant was not precluded by 11 NYCRR 65-3.15 from paying other legitimate claims subsequent to the denial of respondent’s claims (see Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U][App Term, 1st Dept. 2015]). Adopting respondent’s position, which would require petitioner to delay payment on uncontested claims pending resolution of respondent’s disputed claim “runs counter to the no-fault regulatory scheme, which is designed to promote prompt payment of legitimate claims” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]; Harmonic Physical Therapy,P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], supra).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 31, 2016
Reported in New York Official Reports at Vladenn Med. Supply, Corp. v American Commerce Ins. Co. (2016 NY Slip Op 50775(U))
| Vladenn Med. Supply, Corp. v American Commerce Ins. Co. |
| 2016 NY Slip Op 50775(U) [51 Misc 3d 147(A)] |
| Decided on May 17, 2016 |
| Appellate Term, First 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 May 17, 2016
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570430/15
against
American Commerce Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella,, J.), entered May 24, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Joseph E. Capella,, J.), entered May 24, 2013, affirmed, without costs.
We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action. Defendant failed to “meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the nonappearances [at the scheduled examinations under oath (EUOs)]” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In this regard, we note that while the affirmation of defendant’s attorney described the office procedures for contacting a claimant 48 hours prior to the scheduled EUO to confirm the appearance, it failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs on the scheduled dates (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). Nor did the affiant state that he was the attorney assigned to conduct the EUOs, (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]).
Insofar as the motion court also concluded that the claims were untimely denied, we note that the defense of failure to appear for EUOs may be asserted by an insurer regardless of the timeliness of the denial (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). .
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 17, 2016
Reported in New York Official Reports at Sutphin Complete Med. Care v Hereford Ins. Co. (2016 NY Slip Op 50763(U))
| Sutphin Complete Med. Care v Hereford Ins. Co. |
| 2016 NY Slip Op 50763(U) [51 Misc 3d 147(A)] |
| Decided on May 13, 2016 |
| Appellate Term, First 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 May 13, 2016
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
16-101
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, with $10 costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. While defendant established that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his attorney (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]), the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]). The existence of triable issues precludes an award of summary judgment to either party.
Plaintiff’s remaining contentions are unpreserved and/or without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 13, 2016
Reported in New York Official Reports at Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U))
| Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. |
| 2016 NY Slip Op 50762(U) [51 Misc 3d 147(A)] |
| Decided on May 13, 2016 |
| Appellate Term, First 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 May 13, 2016
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
571068/15
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), entered June 8, 2015, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Paul L. Alpert, J.), entered June 8, 2015, affirmed, with $10 costs.
While defendant-insurer established that it timely and properly mailed the notices for examinations under oath to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]), the limited record so far developed presents triable issues as to whether the assignor’s failure to appear was excusable (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]). In this regard, defendant’s moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor’s incarceration, creates rather than eliminates genuine triable issues. We note that the exact period of the assignor’s incarceration remain unclear on this record.
We have considered and rejected defendant’s remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 13, 2016
Reported in New York Official Reports at Brand Med. Supply, Inc. v Infinity Ins. Co. (2016 NY Slip Op 50739(U))
| Brand Med. Supply, Inc. v Infinity Ins. Co. |
| 2016 NY Slip Op 50739(U) [51 Misc 3d 145(A)] |
| Decided on May 5, 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 May 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2014-2068 K C
against
Infinity Ins. Co., Appellant.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), dated April 18, 2013, deemed from a judgment of the same court entered May 30, 2014 (see CPLR 5512 [a]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,150.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, following a nonjury trial, awarded plaintiff judgment in the principal sum of $1,150.
For the reasons stated in Brand Med. Supply, Inc., as Assignee of Steven Thomas v Infinity Ins. Co. (— Misc 3d &mdash, 2016 NY Slip Op — [appeal No. 2014-2032 K C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: May 05, 2016