Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth and seventh causes of action are denied; 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, defendant moved for summary judgment dismissing the complaint. Defendant’s ground for dismissing the first through fourth and the sixth causes of action, which causes of action sought to recover upon the unpaid portions of the underlying claims which defendant had denied, was that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule. Its ground for dismissing the fifth and seventh causes of action was that it had timely denied the underlying claims due to plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). By order entered February 6, 2013, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing the sixth cause of action. The Civil Court also granted the branches of defendant’s motion seeking summary judgment dismissing the third and fourth causes of action to the extent of dismissing so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In support of its motion, defendant submitted affidavits by its employees which established that defendant had timely mailed the denial of claim forms at issue on this appeal (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that, with respect to the services at issue, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. [*2]v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the fifth and seventh causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth and seventh causes of action are denied.

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

Decided on November 20, 2015

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

Decided on November 20, 2015

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

Decided on November 20, 2015

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

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, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are 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 so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985, and denied the branches of plaintiff’s cross motion seeking summary judgment upon that portion of the complaint.

A review of defendant’s letters reveals that they merely notified plaintiff that defendant was delaying payment, but they did not request any specific verification. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claims at issue (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists [2010]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to establish, as a matter of law, that it is not precluded from raising its proffered defense that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 should have been denied.

Plaintiff’s cross motion failed to establish either that defendant had failed to pay or deny the claims seeking to recover the unpaid portions of the claims for $2,015 and $985 within the [*2]requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were 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, 11th & 13th Jud Dists 2011]). As a result, plaintiff failed to demonstrate its prima facie entitlement to summary judgment upon this portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portions of claims for $2,015 and $985 are 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 (Pamela L. Fisher, J.), entered February 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are denied; 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. Insofar as is relevant to this appeal, by order entered February 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and the third through sixth causes of action, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action, and held that the sole issue for trial was the mailing of the claim forms underlying the fourth through sixth causes of action.

The affidavit by defendant’s claims representative was sufficient to establish that defendant did not receive the claim forms underlying plaintiff’s fourth through sixth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these 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, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment on its fourth through sixth causes of action.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and third causes of action, defendant failed to submit proof by [*2]someone with personal knowledge of the nonappearance of plaintiff’s assignor for the examination under oath which was to occur on March 23, 2011. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first and third causes of action (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Contrary to plaintiff’s contention, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action were properly denied, as plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013], affd 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were 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, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third causes of action are 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 April 16, 2013. The order denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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 fraudulently procured the insurance policy by misrepresenting, among other things, whether he would be using the vehicle being insured for work, and on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule. By order entered April 16, 2013, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that defendant had established its defense of fraudulent procurement of the insurance policy. The April 16, 2013 order did not pass upon the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the alternate ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

Defendant demonstrated that the assignor, who was also the insured under the insurance policy in question, had misrepresented, among other things, his use of the subject vehicle when he had submitted his application for insurance to defendant. However, defendant failed to submit sufficient evidence to establish that this misrepresentation was material (cf. New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the [*2]complaint due to plaintiff’s assignor’s fraudulent procurement of the insurance policy should have been denied.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit inasmuch as plaintiff failed to establish its prima facie case since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (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, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint on the ground that the amount sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule.

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 March 19, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing these causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is denied; 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. By order entered March 19, 2013, insofar as appealed from, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first through sixth causes of action, granted the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through sixth causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its claims examiner which established that defendant 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 first cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross 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 cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the second through sixth causes of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing these causes of action.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied.

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

Decided on November 19, 2015

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

Decided on November 19, 2015

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