Reported in New York Official Reports at Renelique v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50868(U))
| Renelique v New York Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 50868(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-1755 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 (Maureen A. Healy, J.), entered April 25, 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 claims based on plaintiff’s assignor’s failure to appear for independent medical examinations. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Contrary to plaintiff’s contention on appeal, the affidavit submitted by defendant in support of its motion established the timely and proper mailing of the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff’s remaining contentions are improperly raised for the first time on appeal and are speculative, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 03, 2016
Reported in New York Official Reports at Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 50867(U))
| Renelique v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 50867(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-1714 Q C
against
Tri State Consumers Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 28, 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, 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 Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 50866(U))
| Renelique v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 50866(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.
2013-1709 Q C
against
Tri State Consumers Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 28, 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, 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.
Plaintiff’s argument—that defendant is precluded from raising its defense that the fees charged exceeded the amount allowed by the workers’ compensation fee schedule because defendant’s denial of claim form did not set forth this defense with sufficient particularity—lacks merit (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). To the extent plaintiff seeks to challenge defendant’s calculation of the amount plaintiff was entitled to recover pursuant to the workers’ compensation fee schedule, this argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Consequently, plaintiff has demonstrated no basis to disturb the order.
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 Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. (2016 NY Slip Op 50864(U))
| Great Health Care Chiropractic, P.C. v Tri State Consumers Ins. Co. |
| 2016 NY Slip Op 50864(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.
2013-1692 Q C
against
Tri State Consumers Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 21, 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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
On appeal, plaintiff argues that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs and that, as a result, plaintiff’s motion for summary judgment should have been granted and defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs. An assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).
We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
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 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