Law Offices of Buratti, Rothenberg & Burns (Bianca Maynard Francois of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 8, 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 reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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 8, 2020 denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

Plaintiff was required to submit its claim form to defendant within 45 days after the services were rendered (see 11 NYCRR 65-1.1; Synergy First Med., PLLC v MVAIC, 44 Misc 3d 127[A], 2014 NY Slip Op 50964[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]) and it is undisputed that plaintiff failed to do so. Defendant timely denied plaintiff’s claim seeking to recover for those services, based upon plaintiff’s untimely submission, and informed plaintiff that defendant would excuse the delay if plaintiff provided a “reasonable justification” therefor (see 11 NYCRR 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 862-863 [2003]; Synergy First Med., PLLC, 2014 NY Slip Op 50964[U]). In opposition to defendant’s motion, plaintiff demonstrated that it had initially sent the claim form at issue to a different insurance company, and that, after plaintiff learned, approximately one year later, that [*2]the information it had regarding the insurance company covering the accident was incorrect, it sent the claim form to defendant. However, plaintiff did not establish a reasonable justification for initially submitting the claim form to the wrong insurance company, given that the claim form which plaintiff alleged it submitted to the wrong insurance company bore defendant’s name and address. As a result, plaintiff did not establish that it had provided defendant with a reasonable justification for its untimely submission of the claim form to defendant.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. 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 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the record reflects that defendant demonstrated, prima facie, that the examination under oath (EUO) scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further contention, an “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc 3d 128, 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff’s remaining arguments are either not properly before this court, as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), or are moot.

Accordingly, the order is affirmed.

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

James F. Butler & Associates (Mohammad Rubbani of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated April 4, 2019. The order, insofar as appealed from, upon reargument, adhered to that court’s prior determination in so much of an order entered March 19, 2019 as denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and, upon reargument, 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 appeals from so much of an order of the Civil Court as, upon reargument, adhered to that court’s prior determination in so much of an order entered March 19, 2019 as denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by demonstrating that it had fully paid plaintiff for the acupuncture services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 68 Misc 3d 132[A], 2020 NY Slip Op 51004[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]) and that the subject claims sought the difference between the amount plaintiff charged for the services rendered and the payments made. In opposition, plaintiff failed to demonstrate the existence of a triable issue of fact (see Master Cheng Acupuncture, P.C. v Global Liberty Ins. of NY, 69 Misc 3d 143[A], 2020 NY Slip Op 51371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, 2020 NY Slip Op 51004[U]; cf. Global Liberty Ins. Co. of NY v Acupuncture Now, P.C., 178 AD3d 512 [2019]).

Accordingly, the order, insofar as appealed from, is reversed and, upon reargument, [*2]defendant’s motion for summary judgment dismissing the complaint is granted.

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

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

Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Michael J. Poropat and Koenig Pierre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Karina E. Alomar, J.), entered July 30, 2020. 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 a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to the finding of the Civil Court, the EUO scheduling letters, which identified the date of the accident and the assignor, were not required to specify bills to which they pertained (see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc 3d 128[A], 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; First Class Med., P.C. v Ameriprise Ins. Co.,63 Misc 3d 135[A], 2019 NY Slip Op 50477[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted.

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

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered December 10, 2019. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon bills numbered one through five and seven through nine.

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 an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon bills numbered one through five and seven through nine.^[FN1] Those branches of defendant’s motion had sought summary judgment on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and, alternatively, as to bill number eight, for services rendered on December 30, 2011, on the ground that plaintiff sought to recover an amount in excess of the amount permitted by the workers’ compensation fee schedule.

The affidavit defendant submitted in support of its motion for summary judgment failed to sufficiently establish that the IME scheduling letters had been timely generated and properly addressed pursuant to the standard practices and procedures of the IME scheduling vendor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, the affirmations from the doctors who were scheduled to perform the IMEs did not [*2]establish that they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground 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]; 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]).

Furthermore, contrary to defendant’s contention, defendant is not entitled to summary judgment dismissing so much of the complaint as sought to recover upon bill number eight as defendant failed to establish its defense that the amount charged exceeded the amounts permitted by the workers’ compensation fee schedule (see Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY, 71 Misc 3d 131[A], 2021 NY Slip Op 50445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

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

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

Footnotes

Footnote 1:The branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on the sixth bill, for $80.20 for date of service December 7, 2011, was granted.

Decided on June 10, 2022

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

Decided on June 10, 2022

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