Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), entered September 17, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

The affidavits defendant submitted in support of its motion for summary judgment demonstrated, prima facie, that independent medical examination (IME) scheduling letters had been timely and properly mailed (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 71 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, contrary to defendant’s contention, the affidavits from the doctors who were scheduled to perform the IMEs did not establish that [*2]they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, defendant failed to establish its entitlement to judgment, as a matter of law, dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs.

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

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

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered November 19, 2019. The order, insofar as appealed from, denied defendant’s motion for partial summary judgment dismissing the second and third causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for partial summary judgment dismissing the second and third causes of action on the ground that plaintiff’s assignor had failed to appear at duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by an employee of Empire Stat Medical Review, P.C., which had been retained by defendant to schedule IMEs. This affidavit demonstrated that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]also demonstrated that the 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]). Therefore, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage (see id. at 722). Defendant’s motion further demonstrated that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, as plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut the presumption that the IME scheduling letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Tyorkin v Repwest Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Triangle R, Inc. v Tri-State Consumer Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50256[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant was entitled to partial summary judgment dismissing the second and third causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Decided on June 17, 2022

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

Decided on June 17, 2022

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Zaklukiewicz, Puzo & Morrissey, LLP (William E. Morrissey, Jr. of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated February 25, 2021. 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 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 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 affidavit and documentary evidence which established, prima facie, its lack of coverage defense (see Tam Med. Supply Corp. v Omni Indem. Co., 48 Misc 3d 142[A], 2015 NY Slip Op 51294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff failed to demonstrate the existence of a triable issue of fact, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the order is affirmed.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated March 22, 2021. 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 on plaintiff’s claims for services billed using CPT codes 97810 and 97811, and for services performed on or after August 10, 2016, and denied the branch of plaintiff’s cross motion seeking summary judgment.

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 branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services billed using CPT codes 97810 and 97811 on the ground that defendant had paid these claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, and so much of the complaint as sought to recover on plaintiff’s claims for services performed on or after August 10, 2016 on the ground of lack of medical necessity, and denied the branch of plaintiff’s cross motion seeking summary judgment.

Contrary to plaintiff’s contention, the affidavit plaintiff submitted in opposition to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for services rendered on or after August 10, 2016 failed to raise a triable issue of fact as it did not meaningfully refer to, let alone rebut, defendant’s prima facie showing of lack of medical necessity (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2009]).

To the extent plaintiff appeals from so much of the order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on plaintiff’s claims for acupuncture services billed using CPT codes 97810 and 97811, for the reasons stated in Mind & Body Acupuncture, P.C., as Assignee of Wilson, Bernadette v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2019-1418 K C], decided herewith), plaintiff’s contention lacks merit.

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

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decided on June 17, 2022

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Daniel Passer and Kyeko Stewart of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated September 10, 2020. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Although defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the EUOs. In addition, defendant’s motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at two duly scheduled EUOs. Therefore, defendant failed to establish its entitlement to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Finally, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish that defendant failed to deny the claim within the 30-day period (see Viviane Etienne Med. Care, P.C. v [*2]Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decided on June 17, 2022

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

Law Offices of Buratti, Rothenberg & Burns (Rachel L. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova and Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 1, 2019. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Insofar as relevant to this appeal, in support of its motion, defendant submitted an affidavit by the Director of Operations for Exam Coordinators Network, which had been retained by defendant to schedule IMEs of plaintiff’s assignor, which affidavit sufficiently demonstrated that the IME scheduling letters had been timely mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage (id. at 722). As defendant’s motion further demonstrated that defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant demonstrated, prima facie, its entitlement to summary judgment and plaintiff failed to raise a triable issue of fact in opposition. [*2]Contrary to the determination of the Civil Court, as the IMEs were scheduled before defendant received the claim at issue, defendant was not required to comply with the obligations of 11 NYCRR 65-3.6 (b) (see City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94, 96 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.