Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated April 10, 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, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant denied the claim at issue based upon the assignor’s alleged failure to appear at duly scheduled examinations under oath (EUOs). Defendant moved for summary judgment dismissing the complaint on the ground that, by failing to appear at the EUOs, plaintiff’s assignor had failed to comply with a condition precedent to coverage. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the District Court as denied defendant’s motion.

On this record, we find that there is an issue of fact as to whether plaintiff’s assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An assignor’s appearance at a scheduled EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date (see e.g. Five Boro Psychological Services, P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [a mutual rescheduling, which occurs prior to the date of a scheduled EUO, does not constitute a failure to appear]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment (see 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]). [*2]However, the record does not reveal the surrounding circumstances, for example, when exactly plaintiff requested the adjournment or when or how defendant responded. Without such details, we cannot determine the reasonableness and/or timeliness of each party’s conduct. Therefore, we cannot determine if plaintiff’s assignor should be deemed to have failed to appear on January 28, 2011 and, thus, whether there was a failure to comply with a condition precedent to coverage.

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

Tolbert, J.P., Marano and Garguilo, JJ., concur.

Decided on December 18, 2015

Plaintiff appeals from so much of an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered December 18, 2014, as granted defendant partial summary judgment dismissing plaintiff’s no-fault claims for services rendered April 9, 2009 through May 27, 2009, and June 25, 2009 through September 15, 2009.

Per Curiam.

Order (David B. Cohen, J.), entered December 18, 2014, insofar as appealed from, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 99202; 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 97810, 97811, 97813 and 97814 for services rendered April 9, 2009 through May 27, 2009 and June 25, 2009 through September 15, 2009, 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 $61.43, billed under CPT code 99202 (initial evaluation), thus precluding summary judgment dismissing this claim (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U][App Term, 2d, 11th & 13th Jud Dists 2011]; see also VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept 2015]).

Decision Date: December 18, 2015

Plaintiff appeals from an order the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered February 3, 2015, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered February 3, 2015, affirmed, with $10 costs.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and her attorney, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to plaintiff’s contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U][App Term, 1st Dept 2015]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor/acupuncturist and defendant’s third-party IME scheduler, setting forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a schedule IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home and Auto Ins. Co. 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U][App Term, 1st Dept 2015]).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the [*2]requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

Plaintiff’s remaining contentions are unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 26, 2014. The order, insofar as appealed from as limited by the brief, struck defendant’s notice of deposition and denied the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, without costs, defendant’s notice of deposition is reinstated and the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served, with its answer, a notice of deposition of plaintiff and demands for responses to interrogatories and for discovery and inspection of documents. Shortly thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to appear for a deposition on the issue of medical necessity. Plaintiff opposed defendant’s motion and cross-moved for summary judgment and for a protective order. As limited by its brief, defendant appeals from so much of an order of the District Court as struck the notice of deposition and denied the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof” (see Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 39 Misc 3d 131[A], 2013 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Defendant established that it had preserved its defense of lack of medical necessity by timely mailing its denial of claim forms, which raised this defense (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]). Contrary to the District Court’s determination, defendant’s service of a notice of deposition together with its other discovery demands did not render the notice “procedurally premature.” Defendant was not required to show, as a prerequisite to a deposition of plaintiff, that plaintiff’s discovery responses were inadequate (see New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). Indeed, “defendant is entitled to conduct such [deposition] notwithstanding the fact that it had also served plaintiff with other discovery demands” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3; see CPLR 3102; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th [*2]Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]; see also Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291 [1984]). ” The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them’ ” (New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *3, quoting Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]; see Nimkoff v Central Park Plaza Assoc., LLC, 123 AD3d 679 [2014]; Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482 [2005]). Here, plaintiff failed to establish that defendant’s notice of deposition and other discovery demands constituted an “unreasonable annoyance,” would cause unnecessary expense or would otherwise prejudice plaintiff (see CPLR 3103). Consequently, the District Court erred in striking defendant’s notice of deposition and denying the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s notice of deposition is reinstated and the branch of defendant’s motion seeking to compel plaintiff to appear for a deposition is granted.

Marano, P.J., Garguilo and Connolly, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered July 30, 2013. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs. In this action to recover assigned first-party no-fault benefits, after plaintiff moved for summary judgment, defendant commenced a declaratory judgment action in the Supreme Court, Nassau County, against, among others, various medical providers, including plaintiff herein, seeking a declaration that defendant had no duty to provide coverage with respect to the accident from which the claims at issue in this action arose. By order dated March 15, 2010, the Supreme Court granted, on default, defendant’s motion for the entry of a declaratory judgment. Defendant subsequently cross-moved for summary judgment dismissing the complaint in the case at bar on the ground that this action is barred by the doctrines of res judicata and collateral estoppel by virtue of the March 2010 Supreme Court order in the declaratory judgment action. By order entered July 30, 2013, the Civil Court, among other things, denied defendant’s cross motion.

Upon a review of the record, we find that since the March 2010 Supreme Court order in the declaratory judgment action merely granted the entry of a declaratory judgment, but failed to make a statement declaring the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767 [1989]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d, 11th & 13th Jud Dists 2015]), the Supreme Court order cannot be considered a conclusive final determination and, thus, can have no preclusive effect in the instant no-fault action (see Metro Health Prods., Inc. v Nationwide Ins , 48 Misc 3d 85; cf. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order entered July 30, 2013, insofar as appealed from, is affirmed.

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

Decided on December 14, 2015

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

Decided on December 14, 2015

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

Decided on December 14, 2015

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, December 14, 2015

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Law Office of Printz & Goldstein, Woodbury (Bryan P. Fauci of counsel), for respondent.

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.

Plaintiff’s assignor was injured in a motor vehicle accident while riding in a vehicle which was insured by a New Jersey automobile insurance policy issued by defendant. Thereafter, plaintiff commenced this action to recover, among other things, assigned first-party no-fault benefits for the services it had rendered to its assignor, alleging that its claims were unpaid. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the dispute had to be resolved by arbitration. In opposition to plaintiff’s motion and in support of the cross motion, defendant addressed only the merits of plaintiff’s motion, made no arguments in support of its cross motion, and did not move to compel arbitration. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendments and endorsements are to be interpreted pursuant to the laws of the state of New Jersey,” New Jersey law applies (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).^[FN*] In Bay Med. P.C., this court held that dispute resolution is not mandatory pursuant to NJ Stat Ann § 39:6A-5.1 (a), as implemented by NJ Admin Code § 11:3-5.1 (a), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute{**50 Misc 3d at 109} resolution upon the initiative of either party to the [*2]dispute (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273, 982 A2d 1, 2-3 [2009]). The insurance policy in question also states that a matter may be submitted to dispute resolution “on the initiative of any party to the dispute.” However, the existence of an option to arbitrate is not a ground for dismissal of a court action; such an option—if exercised by way of a motion to compel arbitration—is a ground to stay the court action (see CPLR 7503 [a]). As defendant has not moved to compel arbitration, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U]; Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the services rendered (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]) and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJ Stat Ann § 39:6A-5 [g]), under New Jersey law, 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.

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

Footnotes

Footnote *:Contrary to plaintiff’s contention, the underwriter’s affidavit that defendant submitted in support of its cross motion laid a sufficient foundation to allow consideration of the exhibits annexed to the cross motion.