Reported in New York Official Reports at I.V. Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50380(U))
| I.V. Med. Supply, Inc. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50380(U) [47 Misc 3d 129(A)] |
| Decided on March 12, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2298 K C
against
Praetorian Ins. Co., Appellant.
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
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 12, 2015
Reported in New York Official Reports at Gutierrez v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50379(U))
| Gutierrez v State Farm Mut. Auto. Ins. Co. |
| 2015 NY Slip Op 50379(U) [47 Misc 3d 129(A)] |
| Decided on March 12, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
&em;
against
State Farm Mutual Automobile Ins. Co., Respondent.
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.
Decision Date: March 12, 2015
Reported in New York Official Reports at Ultimate Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50377(U))
| Ultimate Health Prods., Inc. v Travelers Ins. Co. |
| 2015 NY Slip Op 50377(U) [47 Misc 3d 129(A)] |
| Decided on March 12, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 12, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2081 Q C
against
Travelers Insurance Company, Respondent.
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.
Decision Date: March 12, 2015
Reported in New York Official Reports at River Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50271(U))
| River Acupuncture, P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50271(U) [46 Misc 3d 150(A)] |
| Decided on March 4, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 4, 2015
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570737/14
against
Praetorian Insurance Company, Defendant-Appellant.
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.
I concur I concur I concur
Decision Date: March 04, 2015
Reported in New York Official Reports at Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 25079)
| Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2015 NY Slip Op 25079 [47 Misc 3d 72] |
| Accepted for Miscellaneous Reports Publication |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 17, 2015 |
[*1]
| Stracar Medical Services, P.C., as Assignee of Michael Fonseca, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent. |
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.
{**47 Misc 3d at 73} OPINION OF THE COURT
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.
Reported in New York Official Reports at VS Care Acupuncture v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50164(U))
against
State Farm Mutual Automobile Ins. Co. Defendant-Respondent.
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.
I concurI concurI concur
Decision Date: February 25, 2015
Reported in New York Official Reports at Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Republic Western Insurance Company, Respondent.
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.
Decision Date: February 24, 2015
Reported in New York Official Reports at Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50221(U))
| Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. |
| 2015 NY Slip Op 50221(U) [46 Misc 3d 146(A)] |
| Decided on February 24, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
&em;
against
Republic Western Insurance Company, Respondent.
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. Plaintiff appeals from an order of the Civil Court entered May 13, 2013 which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action is barred by the doctrines of res judicata and collateral estoppel.
For the reasons stated in Vital Meridian Acupuncture, P.C. as Assignee of Gustavo Pichardo v Republic W. Ins. Co. (__ Misc 3d __, 2015 NY Slip Op _____ [appeal No. 2013-1661 K C], decided herewith), the order is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: February 24, 2015
Reported in New York Official Reports at Power Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50218(U))
| Power Supply, Inc. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50218(U) [46 Misc 3d 146(A)] |
| Decided on February 24, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., MARANO and GARGUILO, JJ.
2013-1384 S C
against
Praetorian Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 29, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). Plaintiff opposed the motion. By order dated April 29, 2013, the District Court denied the motion.
Defendant demonstrated that it had timely mailed initial EUO and IME requests within 15 business days of receipt of the claim forms at issue (see 11 NYCRR 65-3.5 [b]), and subsequently mailed timely follow-up requests (see 11 NYCRR 65-3.6 [b]), thereby tolling its time to pay or deny the claims. While plaintiff’s assignor failed to appear for chiropractic/acupuncture IMEs on October 5 and October 26, 2010 and orthopedic IMEs on October 7 and November 3, 2010, he also failed to attend EUOs on October 27 and November 22, 2010. As defendant denied the claims within 30 days after the assignor had failed to appear at the November 22, 2010 EUO (see 11 NYCRR 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs and EUOs, regardless of the fact that the IME nonappearances had occurred more than 30 days prior to the issuance of the denial (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50158[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since an assignor’s appearance for any duly scheduled IME or EUO is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising its defenses. Consequently, defendant established its prima facie entitlement to summary judgment dismissing the complaint. In opposition, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Tolbert, J.P., Marano and Garguilo, JJ., concur.
Decision Date: February 24, 2015
Reported in New York Official Reports at Benavente v Auto One Ins. Co. (2015 NY Slip Op 50215(U))
| Benavente v Auto One Ins. Co. |
| 2015 NY Slip Op 50215(U) [46 Misc 3d 146(A)] |
| Decided on February 24, 2015 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on February 24, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and TOLBERT, JJ.
2013-972 N C
against
Auto One Insurance Company, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated April 9, 2013. The order denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion for leave to serve an amended complaint.
ORDERED that the order is affirmed, without costs.
In this action to recover unpaid no-fault benefits, the complaint alleges that plaintiff was operating a motor vehicle which was owned by a nonparty, who had purchased an insurance policy from defendant, when the vehicle was involved in an accident. The complaint sets forth the number of the applicable policy and states that the policy provided for the payment of no-fault benefits. The pleading further states that plaintiff timely notified defendant of the accident, but defendant refused to perform its obligation under the insurance policy by failing to pay the submitted bills. Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), arguing that the complaint was insufficient to state a claim of indebtedness. Plaintiff opposed the motion and cross-moved for leave to serve an amended complaint, which was annexed to the cross motion papers. Defendant appeals from an order of the District Court which denied defendant’s motion and granted plaintiff’s cross motion.
As stated by the District Court, on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The allegations contained in the complaint should be accepted as true, and the court must determine whether such facts fit any cognizable legal theory (see Morales v Copy Right, Inc., 28 AD3d 440 [2006]). Furthermore, “[t]he test to be applied is whether the complaint gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments” (JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010] [internal quotation marks and citation omitted]). Contrary to defendant’s contention, the complaint states a cognizable cause of action and is sufficient to give defendant notice of the transactions intended to be proved. In addition, the District Court did not improvidently exercise its discretion in granting plaintiff’s cross motion for leave to amend the complaint to supplement the pleading (see CPLR 3025 [b]; Ryan v Town of Riverhead, 117 AD3d 707 [2014]).
Accordingly, the order is affirmed.
Marano, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: February 24, 2015