Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 11, 2011. The order denied a motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, with $30 costs, and the motion by defendant Encompass Insurance Company for summary judgment dismissing the complaint insofar as asserted against it is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Encompass Insurance Company (Encompass) appeals from an order of the Civil Court which denied Encompass’s motion for summary judgment dismissing the complaint insofar as asserted against it.

A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As Encompass has established that the claim forms at issue were received by it on or before February 8, 2001, it correctly argues that plaintiff’s causes of action accrued on or before March 10, 2001, and, thus, this action, which was commenced in June 2007, is untimely (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

We reject plaintiff’s argument that Encompass was required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is reversed and the motion by Encompass for summary judgment dismissing the complaint insofar as asserted against it is granted.

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

Defendant appeals from so much of an order the Civil Court of the City of New York, New York County (Jennifer G. Schecter, J.), entered July 25, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jennifer G. Schecter, J.), entered July 25, 2014, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to satisfy its initial burden of establishing, prima facie, “that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated April 27, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause 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, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause of action.

Defendant sufficiently established the timely mailing of the denial of claim form at issue (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 conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s second cause of action was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decision Date: March 12, 2015

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 10, 2012. The order granted 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 denied.

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.

We agree with plaintiff’s contention on appeal that the physician’s affirmation submitted by plaintiff in opposition to defendant’s motion was sufficient to demonstrate the existence of a triable issue of fact as to whether the services provided were medically necessary. Consequently, defendant’s motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint 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 (Barry A. Schwartz, J.), entered August 16, 2012. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. The appeal from the order is deemed to be from a judgment of the same court entered October 17, 2012 awarding plaintiff the principal sum of $2,903 (see CPLR 5501 [c]).

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 on the ground that the bills at issue had been timely and properly denied based on plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered August 16, 2012, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. A judgment was subsequently entered awarding plaintiff the principal sum of $2,903.

Defendant correctly argues on appeal that plaintiff did not demonstrate its prima facie entitlement to summary judgment, as it failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), 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]). However, as the Civil Court found, the papers submitted in support of defendant’s cross motion demonstrated that defendant’s follow-up EUO requests were untimely (see 11 NYCRR 65-3.6 [b]; Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 35 Misc 3d 146[A], 2012 NY Slip Op 51058[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As the claims at issue were not denied within 30 days of their receipt (see 11 NYCRR 65-3.8 [a] [1]), defendant is precluded from asserting its defense that there had been a failure to appear for EUOs as to those claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and, thus, plaintiff was properly granted judgment on its first six causes of action.

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 (Dawn Jimenez Salta, J.), entered August 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint 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 it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs). Insofar as is relevant to this appeal, the Civil Court, made, in effect, CPLR 3212 (g) findings that defendant’s denial of claim forms were timely and proper, and that the sole issues for trial were whether the IME scheduling letters had been timely and properly mailed and whether plaintiff’s assignor had failed to appear for duly scheduled IMEs.

In support of its motion, defendant submitted an affidavit by the president of Media Referral, Inc., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME requests had been timely 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]). Defendant also submitted affidavits from the chiropractors who were to perform the IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 2, 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.

Plaintiff’s main argument on appeal with respect to defendant’s cross motion is that defendant failed to demonstrate that it had properly reduced the sum billed for CPT code 20553 from $4,000 to $645.90 pursuant to the workers’ compensation fee schedule. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to demonstrate, prima facie, that Ground Rule 3 and Ground Rule 5 were appropriately applied to the services billed, and that defendant properly applied CPT code 20552 in order to determine the amount due, which it calculated to be $592.07. Defendant’s employee explained that defendant had mistakenly paid $645.90 for 21 trigger point injections rather than $592.07 for the 20 injections for which plaintiff had billed. In any event, it is of no relevance to the determination of this appeal that defendant paid an additional $53.83 as a result of this mistake, or that it has described a potential alternate calculation which, had defendant used it, would have concluded that only $416.85 was due. Defendant has demonstrated that it paid more than it was responsible for pursuant to the workers’ compensation fee schedule, and plaintiff has not rebutted that showing. Contrary to plaintiff’s second argument on appeal with respect to defendant’s cross motion—that defendant’s proffered defense was not set forth in its denial—a checked box on the denial of claim form indicated that benefits were denied because the fees were not in accordance with the fee schedule, and the denial referenced an attached “Explanation of Review.”

In view of the foregoing, defendant’s cross motion for summary judgment dismissing the complaint was properly granted and plaintiff’s motion for summary judgment was properly denied.

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 August 15, 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 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.

Contrary to plaintiff’s contentions on appeal, defendant established that plaintiff had failed to appear at either of the duly scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that the denial of claim forms had been timely 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]). An appearance at an EUO 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). As a result, the 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.

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

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 9, 2014, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 9, 2014, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.