Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 11, 2011. The judgment, entered pursuant to a decision of the same court dated May 3, 2011, after a nonjury trial, awarded plaintiff the principal sum of $10,859.64 plus statutory interest, with the exception of the period from February 13, 2004 through March 22, 2006, during which time the accrual of statutory interest was stayed pursuant to the parties’ stipulation.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated May 3, 2011 is deemed a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. In a decision after a nonjury trial, the Civil Court awarded plaintiff the principal sum of $10,859.64 plus statutory interest, except for the period from February 13, 2004 to March 22, 2006, during which time the accrual of interest had been stayed pursuant to the parties’ prior stipulation which had vacated the dismissal of the action. After defendant filed its notice of appeal from the decision, a judgment was subsequently entered. We deem the notice of appeal from the decision a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]). On appeal, defendant challenges plaintiff’s proof of mailing of the claims and whether plaintiff established that the claims remained unpaid at the time of trial. Defendant further argues that, due to plaintiff’s inaction after the dismissal of the action had been vacated, the accrual of statutory interest should be further stayed until February 27, 2009, the date plaintiff resumed prosecution of the action by filing a notice of trial.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

As plaintiff’s bills and proof of mailing were admitted into evidence through the testimony of its owner, who testified that the bills had not been paid, plaintiff sustained its burden of proving its prima facie case at trial. Defendant rested its case without offering a defense. Consequently, the Civil Court properly granted judgment to plaintiff (see Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 43 Misc 3d 127[A], 2014 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

With respect to the award of statutory interest, the record shows that plaintiff did nothing to prosecute this action for approximately three years after the parties had stipulated to vacate the dismissal of the action. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see 11 NYCRR 65-3.9 [d]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

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

Decided on November 30, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 16, 2014. The judgment, entered pursuant to a decision of the same court dated August 19, 2013, after a nonjury trial, awarded plaintiff the principal sum of $8,939.66.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court stated that it found that plaintiff had established its prima facie case and that defendant had timely denied the claim. Furthermore, the court stated: “That shifts the burden to the Defendant to demonstrate the lack of medical necessity for the services in question.” In its decision after trial, the court stated that the necessity of the assignor’s right-shoulder surgery was not in question, and that the burden was on defendant to demonstrate that the injuries requiring the surgery were not related to the subject accident. The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66. Defendant appeals from the decision. A judgment was subsequently entered on April 16, 2014. On the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]).

It is well settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary” (Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 n [App Term, 2d, 11th & 13th Jud Dists 2012]). Indeed, we view this as being no different from when an insurer, who has preserved such a defense by a timely denial, presents sufficient proof at trial that the billed-for services were not actually rendered or that the durable medical equipment was not provided, thereby shifting the burden back to the plaintiff provider to ultimately establish that it is seeking to recover for “necessary expenses” which were actually incurred (see 11 NYCRR 65-1.1 [c]). Thus, we hold that the Civil Court erred in ruling that defendant bore the ultimate burden of proof. As a result, since the decision in favor of plaintiff may have been the product of the court’s incorrect application of the burden of proof, a new trial is required.

Accordingly, 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.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated December 10, 2013. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff, an attorney who had represented a medical provider in various first-party no-fault actions, commenced this action to recover payment of a 12½% contingent fee, in the amount of $893.76, pursuant to a written attorney’s fee agreement with the provider. The complaint stated that the provider and defendant had settled some of the actions in or about June 2012, and that the attorney’s fee, among other things, was to be made payable to the order of plaintiff and mailed to his office. The complaint further stated that, in January 2013, plaintiff, after having received no payment, called defendant and was informed that all of the settlement monies, including the attorney’s fee, had been forwarded to the Internal Revenue Service (IRS) due to a tax levy on the provider. The complaint indicated that, notwithstanding a limit on attorney’s fees for no-fault actions, plaintiff was entitled to an excess award because of his “extraordinary” services. The complaint asserted that, because plaintiff’s lien on the principal settlement involving the provider was superior to a claim by the IRS, defendant improperly remitted the money to the IRS and was, therefore, liable to plaintiff in the sum of $893.76.

Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), on the grounds that the complaint failed to state that plaintiff had given defendant notice of a contingency agreement prior to commencement of the action, in accordance with Judiciary Law § 475-a, and that an attorney’s fee for work in a no-fault action is limited to the statutory attorney’s fee provided by Insurance Law § 5106 (a) and the regulations promulgated thereto. Plaintiff opposed defendant’s motion and now appeals from an order of the District Court which granted defendant’s motion to dismiss the complaint.

In considering a motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 [a] [7]), a court must accept the facts alleged in the complaint as true and give the plaintiff the benefit of all favorable inferences to determine whether the facts as alleged fit within any cognizable legal theory (see Canzona v Atanasio, 118 AD3d 837 [2014]; Breytman v Olinville Realty, LLC, 54 AD3d 703 [2008]; see also Leon v Martinez, 84 NY2d 83 [1994]).

Applying these principles here, the District Court properly granted defendant’s motion to [*2]dismiss the complaint, as the complaint failed to state a cause of action for recovery of contingent attorney’s fees. The complaint acknowledged the limitations on attorney’s fees in no-fault disputes, pursuant to 11 NYCRR 65-4.6 (g), which prohibits an attorney from demanding, requesting or receiving from the insurer “any payment of fees not permitted by this section” (11 NYCRR 65-4.6 [g]). Notably, in opposition to defendant’s motion to dismiss the complaint, plaintiff conceded that he had received statutory attorney’s fees as counsel for the provider in the settled first-party no-fault actions. The complaint merely set forth the conclusory allegation that plaintiff was entitled to collect attorney’s fees “in excess of the limitations set forth in” 11 NYCRR 65-4.6 (g) because his services were “extraordinary.” There are no factual allegations in the complaint sufficient to state a cause of action against the insurer for the recovery of contingent attorney’s fees beyond those authorized by statute, or to otherwise manifest any cause of action cognizable at law (see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094 [2011]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793 [2011]; Mayer v Sanders, 264 AD2d 827 [1999]).

Accordingly, the order is affirmed.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.

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.