Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 22, 2012. 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 defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (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]).

Accordingly, the order 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 (Harriet L. Thompson, J.), entered April 2, 2012. The order, insofar as appealed from, granted the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service May 21, 2008 through July 31, 2008.

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 appeals from so much of an order of the Civil Court as granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service May 21, 2008 through July 31, 2008.

On appeal, plaintiff’s sole arguments are that defendant failed to make a prima facie showing of lack of medical necessity, and, in any event, that the affidavit of the acupuncturist which plaintiff submitted was sufficient to raise a triable issue of fact. Both arguments lack merit.

The affirmed independent medical examination (IME) report from the doctor who had performed an IME, as well as the IME reports and accompanying affidavits executed by the chiropractor and acupuncturist who had also performed IMEs, set forth a factual basis and a medical rationale for the IME providers’ determinations that there was no medical necessity for the acupuncture services at issue. In opposition, plaintiff submitted an affidavit by an acupuncturist which, as the Civil Court found, failed to meaningfully refer to or rebut the conclusions of the IME doctors (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant’s cross motion was properly granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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 (Alice Fisher Rubin, J.), entered September 23, 2010, deemed from a judgment of the same court entered April 9, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 23, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,877.85.

ORDERED that the judgment 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 September 23, 2010, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from the order is deemed to be from the judgment entered pursuant thereto on April 9, 2012 (see CPLR 5501 [c]). On appeal, defendant argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment and that the cross motion should have been granted.

Contrary to defendant’s contention, the affidavit submitted by plaintiff in support of its motion was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). Moreover, defendant admits that it received plaintiff’s claims in September and October of 2007, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Defendant has not established that its time to pay or deny the claims had been tolled. As defendant failed to demonstrate that the claims had been timely denied, it failed to raise a triable issue of fact. Consequently, plaintiff’s motion for summary judgment was properly granted and defendant’s cross motion for summary judgment was properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

The decision and order of this court dated November 26, 2013 (41 Misc 3d 139[A], 2013 NY Slip Op 51996[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Accordingly, the judgment 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 (Reginald A. Boddie, J.), entered April 27, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiffs’ 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]). In addition, an affidavit by defendant’s claims representative, as well as an affidavit of service with respect to each denial of claim form, demonstrated that the denial of claim forms, which denied the claims based on plaintiffs’ assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since appearance at a duly scheduled IME is a condition precedent to an insurer’s liability on a policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the Civil Court should have granted defendant’s motion for summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint 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 (Larry Love, J.), entered March 4, 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 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.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

As to plaintiff’s second cause of action, the affidavit by plaintiff’s billing manager was sufficient to demonstrate that the claim had been mailed to defendant in accordance with plaintiff’s standard office practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the affidavit by defendant’s no-fault examiner was sufficient to raise a triable issue of fact as to whether defendant had ever received that claim. Thus, there is an issue of fact as to whether defendant’s time to pay or deny this claim ever began to run (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]; 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 to the remaining causes of action, defendant’s cross motion was sufficient to make a prima facie showing that plaintiff had failed to respond to defendant’s initial and follow-up requests for verification as to the claims upon which these causes of action were based. However, as plaintiff argues on appeal, plaintiff’s opposition was sufficient to raise a triable issue of fact as to whether plaintiff had responded to those verification requests. Therefore, neither party is entitled to summary judgment on these causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decision Date: August 06, 2015

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 21, 2012. 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 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.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Thus, plaintiff’s motion for summary judgment was properly denied.

However, defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of cancellation, upon which its defense is based, with the Department of Motor Vehicles within 30 days of the effective date of the cancellation as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). Therefore, defendant has not demonstrated that the cancellation is effective with respect to plaintiff’s assignor, who was not the named insured or a member of his household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered April 1, 2010. 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 providers to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

With respect to the bills sued upon by Neomy Medical, P.C., defendant failed to demonstrate that the denial of claim forms had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the bills sued upon by Perfect Point Acupuncture, P.C., defendant failed to establish as a matter of law that the fees charged exceeded the amount set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint. Accordingly, the order 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 (Katherine A. Levine, J.), entered December 12, 2012. 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 dismissing the complaint is 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 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 its motion, defendant submitted an affirmation by the attorney who was to conduct examinations under oath (EUOs) of plaintiff’s assignor, in which he asserted that plaintiff’s assignor had failed to appear. However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on either of the dates of the scheduled EUOs at the office of the court reporting company to which plaintiff’s assignor was directed to go. As a result, defendant was not entitled to summary judgment dismissing the complaint because defendant’s papers failed to make a prima facie showing that plaintiff’s 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]). Since plaintiff failed to show that its assignor had appeared for either of the EUOs, plaintiff’s cross motion for summary judgment was properly denied (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 defendant’s motion for summary judgment is 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 (Anna Culley, J.), entered December 19, 2012. 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.Contrary to plaintiff’s arguments on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, the affidavit executed by defendant’s certified professional coder established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s papers failed to raise a triable issue of fact in opposition to defendant’s cross motion. Consequently, the Civil Court properly denied plaintiff’s motion and granted defendant’s cross motion.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered March 28, 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

A review of the record reveals that there are triable issues of fact regarding defendant’s defense of lack of medical necessity. Consequently, defendant’s motion was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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