[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 2, 2015

APPEARANCES OF COUNSEL

Fuld & Karp, P.C., Brooklyn (Cheryl Scher of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment, finding that defendant demonstrated that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

It is undisputed that plaintiff’s patient, the assignor herein, initially granted plaintiff the right to bill defendant and receive direct no-fault payments from defendant by executing an “authorization to pay” on a prescribed NF-3 form, and that he executed a prescribed assignment of benefits in favor of plaintiff at a later date. Plaintiff’s main argument on appeal is that, because plaintiff was not the eligible injured person’s (EIP’s){**47 Misc 3d at 74} assignee at the time plaintiff submitted the NF-3 forms to defendant, the language in the mandatory personal injury protection (PIP) endorsement (11 NYCRR 65-1.1 [d] [Section I, Conditions, Proof of Claim]), which requires “the eligible injured person or that person’s assignee or representative” to “submit to examinations under oath,” did not require plaintiff to submit to an EUO, and, thus, defendant’s proffered defense, that plaintiff failed to appear for duly scheduled EUOs, lacks merit. In our view, the Civil Court properly rejected this argument, as we find that, pursuant to the regulations, both the recipient of an assignment of benefits and the recipient of an authorization to pay are required to submit to a duly scheduled EUO.

11 NYCRR 65-3.11 (a) states that an insurer shall pay benefits to an EIP “or, upon assignment by the applicant [or the applicant’s parent or legal guardian or any person legally responsible for necessities], shall pay benefits directly to providers of health care services.” 11 NYCRR 65-3.11 (b) provides two ways in which a health care provider can receive direct payment from the insurer—by submitting an “authorization to pay benefits as contained on NYS form NF-3, NF-4 or NF-5” (hereinafter prescribed authorization), or by submitting an assignment of benefits on an NF-3, NF-4, NF-5 or form NF-AOB (hereinafter prescribed assignment) (11 NYCRR 65-3.11 [b] [1], [2]). The prescribed authorization specifically states that the EIP retains “all rights, privileges and remedies” under the No-Fault Law; in contrast, the prescribed assignment states that such “rights, privileges and remedies” are assigned to the health care provider (which allows the provider to commence an action against the insurer to recover no-fault benefits). While the regulations clearly specify that a prescribed authorization and a prescribed assignment are different with respect to whether there is a transfer of rights, there is nothing in the prescribed assignment or prescribed authorization, both of which require the signatures of the EIP and the provider in order to be properly executed, differentiating between the two with respect to the EIP’s obligations (such as the requirement to submit to an EUO). Furthermore, in the provision dealing with direct payments to a health care provider, the regulations seem to conflate the prescribed assignment and the prescribed authorization. While an insurer is required to pay benefits directly to a provider “upon assignment by the applicant” pursuant to 11 NYCRR 65-3.11 (a), the word “assignment” in this context is not limited to a prescribed{**47 Misc 3d at 75} assignment, and indeed includes a prescribed authorization, since, pursuant to 11 NYCRR 65-3.11 (b), a provider demonstrates such “assignment” by submitting either a properly executed prescribed authorization or a properly executed prescribed assignment. Inasmuch as an “assignee” clearly must submit to an EUO, the regulations should be read to impose this obligation upon the recipient of both a properly executed prescribed authorization and a properly executed prescribed assignment.

Even if we did not find that a prescribed authorization falls within the umbrella of the word “assignment” as used in 11 NYCRR 65-3.11 (a), we would still hold that the recipient of an authorization to pay is obligated to submit to an EUO. This is because, in addition to requiring the EIP or that person’s assignee to submit to an EUO, the PIP endorsement also obligates the EIP’s representative to submit to an EUO. Written proof of claim may be submitted to an insurer by the EIP’s representative (see 11 NYCRR 65-1.1), and the recipient of a properly executed prescribed authorization who submits proof of claim is clearly acting as the EIP’s representative under those circumstances since the EIP retains “all rights, privileges and remedies.” Accordingly, plaintiff, as the entity which submitted the claim forms to defendant, was obligated to submit to an EUO whether such entity be viewed as its patient’s assignee or as his representative.

Plaintiff’s remaining argument is improperly raised for the first time on appeal. It is, in any event, without merit (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]).

Accordingly, the order is affirmed.

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

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT codes 97039 and 97026; as modified, order affirmed, without costs.

Defendant’s documentary submissions established prima facie that it timely and properly denied plaintiff’s no-fault claims billed under CPT codes 97810, 97811 and 99203 on the ground that the amounts charged were in excess of the fees fixed by the applicable workers’ compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture v Geico Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial forms or the calculation of the fees. Contrary to plaintiff’s contention, defendant’s April 12, 2010 denial of plaintiff’s claim in the amount of $2,690 was timely, since the last day of the 30 calendar days within which defendant was required to pay or deny the claim (see 11 NYCRR 65-3.8[c]) fell on Saturday, April 10, 2010 (see General Construction Law § 20).

Triable issues remain, however, in connection with plaintiff’s claims billed under CPT codes 97039 (moxibustion) and 97026 (infrared treatment). The position taken by defendant’s affiant, a certified medical coder, that the above-mentioned services, although “within the scope of practice of an acupuncturist, . . cannot be considered for reimbursement” because the procedure codes billed under were listed in the workers’ compensation physical medicine fee schedule, is unpersuasive. Inasmuch as the superintendent of insurance has not adopted or established a fee schedule for reimbursement of acupuncture services performed by a licensed acupuncturist, an insurer may consider the “charges permissible for similar procedures under schedules already [*2]adopted or established by the superintendent” (11 NYCRR 68.5[b]) for purposes of determining the appropriate reimbursement rate (see Forrest Chen Acupuncture Servs., P.C. v Geico Ins. Co., 54 AD3d 996 [2008]).

Plaintiff’s remaining arguments are either unpreserved or lacking in merit.

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 (Robin S. Garson, J.), entered May 13, 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 affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff seeks to recover for services it provided to its assignor, who had sustained injuries in a motor vehicle accident that had occurred on February 13, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against various medical providers and their assignors, including plaintiff herein and its assignor. By order dated July 31, 2012, the Supreme Court granted, on default, defendant’s motion for the entry of a declaratory judgment and found that defendant “has no obligation to pay no-fault benefits to” plaintiff and its assignors “arising out of a collision that occurred on February 13, 2011.” In October 2012, plaintiff moved for, among other things, summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel by virtue of the July 31, 2012 Supreme Court order in the declaratory judgment action. By order entered May 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, the instant action is barred under the doctrine of res judicata by virtue of the July 31, 2012 Supreme Court order (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a judgment in this action which would destroy or impair rights established by the Supreme Court’s order (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Moreover, the Supreme Court’s order is a conclusive final determination notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 658, 690 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]). Plaintiff’s remaining contentions lack merit or are unpreserved for appellate review.

Accordingly, the order of the Civil Court is affirmed.

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

Decided on February 24, 2015

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

Decided on February 24, 2015

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

Decided on February 24, 2015

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 24, 2015

APPEARANCES OF COUNSEL

Rhonda H. Barry, Jericho, and Thomas Torto, New York City, for appellant.

Zara Javakov, Esq., P.C., Brooklyn Zara Javakov of counsel), for respondent.

Ordered that the order entered January 10, 2013 is reversed, without costs, and the branch of defendant’s motion seeking to resettle the order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted; and it is further ordered that, on the court’s own motion, the decision and order on motion of this court dated May 1, 2012 (see 2012 NY Slip Op 72730[U] [2012]), which dismissed the appeal from the order of the Civil Court entered September 15, 2010, is recalled and vacated, and that appeal is reinstated under appeal No. 2011-192 K C; and it is further ordered that appeal No. 2011-192 K C shall be perfected within 30 days of the date of this decision and order; and it is further ordered that in the event that appeal is not perfected within 30 days of the date of this decision and order, the court, on its own motion, may dismiss the appeal, or respondent may move to dismiss the appeal on three days’ notice, and may serve such application in person; and it is further ordered that respondent, if it be so advised, may serve and file a respondent’s brief within 21 days of the date that the appellant’s brief is due to be filed pursuant to this decision and order, and appellant, if it be so advised, may serve and file a reply brief within 14 days of the date that the respondent’s brief is due to be filed pursuant to this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court, entered January 10, 2013, denying defendant’s motion to resettle so much of a prior order of the same court, entered September 15, 2010, which had decided a motion and cross motion{**52 Misc 3d at 14} for summary judgment, so as to delete a notation on that order stating that the order was made on “consent” and is “not appealable,” or for alternative relief.

At the outset, we note that, contrary to plaintiff’s argument on appeal, so much of the January 10, 2013 order as denied resettlement is appealable, as defendant did not seek to change the substantive or decretal portions of the September 15, 2010 order, but rather to, in essence, correct a factual recitation of that order (see Matter of Lewin v New York City Conciliation & Appeals Bd., 88 AD2d 516 [1982]; Bergin v Anderson, 216 App Div 844 [1926]; see also 4 NY Jur 2d, Appellate Review § 57; 10 Carmody-Wait 2d § 70:31).

In support of its motion, defendant submitted an affirmation from the attorney for defendant who had appeared on the return date of the motion and cross motion in question. That attorney attested that both he and plaintiff’s attorney had “vigorously argued” the motion and cross motion that day, and explicitly denied that the order had been made on consent. Defendant also submitted a copy of the September 15, 2010 order, apparently handed to the parties on September 15, 2010, the return date, which does not contain the “consent/not appealable” notation. Defendant further noted that all copies of the September 15, 2010 order state that it was made after oral argument. Plaintiff submitted no opposition to defendant’s motion, and, on appeal, does not dispute defendant’s factual assertions.

As defendant’s affirmed claim—that the September 15, 2010 order was not made on consent—was made on personal knowledge and was not contradicted, we find that the court should have granted the branch of defendant’s motion seeking to resettle the order so as to delete the “consent” and “not appealable” notation.

Accordingly, the order entered January 10, 2013 is reversed and the branch of defendant’s motion seeking to resettle the prior order entered September 15, 2010 so as to delete the notation on that order stating that it was made on “consent” and is “not appealable” is granted. In view of the foregoing, the decision and order on motion of this court dated May 1, 2012, which dismissed defendant’s appeal from the Civil Court’s September 15, 2010 order on the ground that no appeal lies from an order entered on consent, is recalled and vacated, and that appeal is reinstated.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 29, 2013. The order, insofar as appealed from, denied plaintiff’s motion to vacate a prior order of the same court entered October 24, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 24, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, noting that the parties had entered into a stipulation, which set a schedule for serving opposition and reply papers, and declining to consider plaintiff’s late opposition to the motion. Almost 10 months later, plaintiff moved, pursuant to CPLR 5015 (a) (1), to vacate the October 24, 2011 default order. Defendant opposed plaintiff’s motion, and cross-moved for costs and sanctions. Plaintiff appeals from so much of an order of the Civil Court entered April 29, 2013 as denied its motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, pursuant to the parties’ stipulation. In support of plaintiff’s motion to vacate the default order, plaintiff’s attorney alleged that her late submission of an affirmation in opposition to defendant’s motion for summary judgment was the result of her heavy workload. Her explanation to justify the default amounted to nothing more than mere neglect, which is not accepted as an excusable default (see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]). Moreover, plaintiff’s attorney offered no reason for waiting almost 10 months to move to vacate the default order (see Byers v Winthrop Univ. Hosp., 100 AD3d 817 [2012]). In view of the foregoing, we reach no other issue.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 7, 2013. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

Plaintiff commenced this action in the Civil Court to recover assigned first-party no-fault benefits, asserting that it had provided health care services to Kashif Edwards for injuries sustained in an April 26, 2010 automobile accident, and that Edwards had assigned his benefits to plaintiff. Shortly thereafter, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against plaintiff, other providers and Kashif Edwards, seeking a declaration that all of the defendants therein were not entitled to no-fault benefits as a result of the April 26, 2010 accident involving Edwards on the ground that Edwards had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled independent medical examinations. Neither plaintiff nor Edwards served an answer or otherwise appeared in the Supreme Court action. Approximately one year later, plaintiff, LMS Acupuncture, P.C., moved for summary judgment in the Civil Court. American Transit opposed the motion on the ground that LMS Acupuncture, P.C.’s Civil Court action was barred by the pending declaratory judgment action. While the Civil Court action was pending, American Transit moved in Supreme Court for, among other relief, a declaration that Kashif Edwards is not an eligible injured person entitled to no-fault benefits under the insurance policy at issue and that American Transit is not obligated to honor or pay claims submitted by Edwards’ assignees, including LMS Acupuncture, P.C., arising from the subject accident, under the insurance policy at issue. On May 8, 2013, the Supreme Court granted, on default, American Transit’s motion. By order entered June 7, 2013, the Civil Court denied LMS Acupuncture, P.C.’s motion for summary judgment, in light of the Supreme Court’s determination in the declaratory judgment action. On August 1, 2013, the Supreme Court signed a long-form order embodying its determination.

Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior action (see Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]). “The rationale underlying this principle is that a party who has been given a full and fair opportunity to litigate a claim should not be allowed to do so again” (Matter of Hunter, 4 NY3d 260, 269 [2005]).

Based upon the declaratory judgment action in Supreme Court, the instant action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. [*2]Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), since the prior action was disposed of on the merits (see Abraham, 47 AD3d 855; Ava Acupuncture, P.C., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]), and the Supreme Court’s order is a conclusive final determination (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]). To hold otherwise could result in a judgment in the present action which would destroy or impair rights or interests established in the Supreme Court action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; EBM Med. Health Care, P.C., 38 Misc 3d 1). We note that any contention that the Supreme Court’s May 8, 2013 determination was not a final disposition has been rendered moot by the entry of the August 1, 2013 long-form order.

Although defendant did not cross-move for summary judgment dismissing the complaint, upon a search of the record, we find that it supports the granting of such relief as a matter of law (see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Accordingly, the order of the Civil Court is affirmed, and, upon searching the record, defendant is awarded summary judgment dismissing the complaint.

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

Decided on January 15, 2015

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