Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered March 25, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fifth, and seventh causes of action.

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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered March 25, 2013, insofar as appealed from, the Civil Court denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through fifth, and seventh 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 its motion for summary judgment, plaintiff established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). However, with respect to the sixth cause of action, defendant sufficiently described its procedures for the receipt of mail and stated that defendant has no record of having received this claim. By rebutting the presumption of receipt, defendant raised a triable issue of fact as to whether this claim had been submitted to defendant (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]). Thus, plaintiff was not entitled to summary judgment as to this cause of action.

In support of the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through fifth, and seventh causes of action, defendant submitted an affidavit by its claims examiner which established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the first through fifth, and seventh causes of action on that ground, defendant was entitled to summary judgment dismissing these causes of action.

In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled EUOs.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered March 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted; 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 an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the second 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 second 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 employee, 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]).

Defendant conceded in its moving papers that, on December 13, 2010, it had received the claim form underlying the first cause of action. To the extent defendant asserts that it took no action because the claim form was illegible, upon our review of the document, we find that the name of plaintiff’s assignor and the claim number are legible. Moreover, defendant had, at a minimum, previously received the claim underlying the second cause of action, which involves the same assignor and same claim number. Consequently, the claim form’s alleged illegibility does not constitute a valid ground for defendant’s inaction. As the record establishes that defendant did not timely deny this claim, seek verification or otherwise notify plaintiff of why defendant believed it could not process the claim, plaintiff was entitled to summary judgment upon the first cause of action (see 11 NYCRR 65-3.8; see also Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied and the branch of plaintiff’s cross motion seeking summary judgment upon the first cause of action is granted.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 12, 2013. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.

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 examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered April 12, 2013, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21, on the ground that defendant had failed to demonstrate that it possessed an objective basis for requesting plaintiff’s assignor to appear at an EUO.

In support of its motion, defendant submitted an affidavit from one of its special investigators, which affidavit established that the EUO scheduling letters had been timely sent to plaintiff’s assignor in accordance with defendant’s standard practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also annexed an affidavit from an investigator employed within defendant’s special investigations unit, and stenographic transcripts, to show that the assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Thus, contrary to the determination of the Civil Court, defendant did not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law. Accordingly, since appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722), the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim in the sum of $677.21 is granted.

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

Decided on November 13, 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, Queens County (Ulysses Bernard Leverett, J.), entered February 21, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by striking the provision denying plaintiff’s motion for summary judgment and by providing that plaintiff’s motion is held in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law; as so modified, the order 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 to stay the action pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). Indeed, the application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. “Since primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Consequently, the issue of whether plaintiff’s assignor was acting as an employee at the time of the accident must be resolved by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], [*2]2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]; Ortho Pro Labs, Inc. v American Tr. Ins. Co., 26 Misc 3d 129[A], 2009 NY Slip Op 52693[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by striking the provision denying plaintiff’s motion for summary judgment and by providing that plaintiff’s motion is held in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

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

Decided on November 13, 2015

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

Decided on November 13, 2015

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

Decided on November 13, 2015

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

Decided on November 13, 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 February 22, 2013. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, upon a search of the record, granted partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009.

ORDERED that the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009; 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. In opposition, defendant argued that it had timely denied plaintiff’s claims on the grounds of lack of medical necessity and that the amount charged exceeded the amount permitted by the workers’ compensation fee schedule. By order entered February 22, 2013, the Civil Court denied plaintiff’s motion for summary judgment, but held that pursuant to CPLR 3212 (g), plaintiff and defendant had established their prima facie cases and that the sole issue for trial would be the propriety of defendant’s defense which was based upon the workers’ compensation fee schedule. The Civil Court also, upon searching the record, held that plaintiff had failed to rebut defendant’s independent medical examination report which defendant had annexed to its papers in opposition to plaintiff’s motion for summary judgment and awarded defendant partial summary judgment dismissing so much of the complaint as sought to recover for services rendered after November 20, 2009. Plaintiff appeals.

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the complaint insofar as it sought to recover for services rendered after November 20, 2009 (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852 [App Term, 2d & 11th Jud Dists 2008]).

Plaintiff’s remaining contentions are not properly before this court, as these arguments are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision granting partial summary judgment to defendant dismissing so much of the complaint as sought [*2]to recover for services rendered after November 20, 2009.

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