Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered June 24, 2010. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 it had timely and properly denied the claims at issue based on a lack of medical necessity and the workers’ compensation fee schedule. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff. 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 cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 12, 2012. 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 moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied based upon plaintiff’s failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion, arguing that defendant had failed to timely request EUOs and timely deny the claims, and that defendant did not demonstrate a good reason for requesting the verification. The Civil Court denied defendant’s motion on the ground that defendant had not established that its procedure for mailing denial of claim forms had been followed. This appeal by defendant ensued.

The affidavit submitted by defendant’s attorney in support of defendant’s motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (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]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olemur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, the affidavit by defendant’s litigation examiner established, based upon her personal knowledge, that defendant’s procedures for mailing (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C., 17 Misc 3d at 17-18) denial of claim forms had been followed.

To the extent that plaintiff argued that defendant’s EUO scheduling letters had been untimely, a review of the record reveals that defendant received the claim form which sought reimbursement in the amount of $574.65 on April 4, 2011 and mailed its first EUO scheduling letter on May 3, 2011, 21 business days later. Requests for additional verification are untimely if [*2]not made within 15 business days of the insurer’s receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). Since the first EUO request was six days late, defendant’s time to pay or deny this claim was reduced from 30 calendar days to 24 calendar days (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [l]). Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed its denial of claim form 11 days after plaintiff had failed to appear for the final scheduled EUO. With respect to the claim which sought reimbursement in the amount of $963.24, defendant demonstrated that it had received that claim on April 11, 2011 and had mailed the initial EUO scheduling letter on May 3, 2011, 16 business days later. Consequently, defendant’s time to pay or deny this claim was reduced to 29 calendar days. Defendant established that it had timely mailed a follow-up EUO scheduling letter, and that it had mailed the denial of the $963.24 claim 11 days after plaintiff had failed to appear for the final scheduled EUO. Finally, defendant received the claim which sought reimbursement in the amount of $1,150 on May 19, 2011 and denied it on June 13, 2011. Consequently, each of defendant’s denial of claim forms was timely mailed.

Furthermore, inasmuch as defendant demonstrated that plaintiff had failed to respond in any way to defendant’s requests for EUOs, the reasonableness of these requests will not be considered (see e.g. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Morris Med., P.C. v Amex Assur. Co., 37 Misc 3d 140[A], 2012 NY Slip Op 52260[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v AIG Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51711[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

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

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

Decided on July 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 3, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, as limited by its brief, from so much of an order as denied defendant’s cross motion for summary judgment dismissing the complaint.

While defendant sought summary judgment on the grounds that plaintiff’s assignor had failed to appear for independent medical examinations and that plaintiff was seeking to recover for treatment which the assignor swore he never received, defendant failed to establish that such defenses are not precluded.^[FN1] As result, contrary to defendant’s contention on appeal, the record does not demonstrate that defendant is entitled to summary judgment dismissing the complaint on either of these grounds (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2d Dept 2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). To the extent that defendant also sought summary judgment on the ground of lack of medical necessity, we find, upon a review of the record, that defendant is also not entitled to summary judgment on that ground.

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

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

Decision Date: July 28, 2014

Footnotes

Footnote 1: We note that if the treatment at issue had been rendered after April 1, 2013, pursuant to the revised Insurance Department Regulations, the defense that the services were not provided would not be subject to preclusion (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [g] [eff Apr. 1, 2013]).

Decided on July 28, 2014

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

Decided on July 24, 2014

Decided on July 16, 2014

Defendant, as limited by its brief, appeals from so much of an amended order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), dated July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Amended order (Joseph E. Capella, J.), dated July 3, 2013, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action 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 his counsel, 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]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

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]). Plaintiff’s remaining arguments, to the extent properly considered, are lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 3, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied defendant’s motion on the ground that defendant had not offered a reason why it had requested an EUO. This appeal by defendant ensued.

With respect to the fourth cause of action, seeking to recover upon a claim for $879.73, and the fifth cause of action, seeking attorney’s fees with respect thereto, defendant established that the time to pay or deny this claim had been tolled by the timely issuance of EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claim had been timely denied (see id.) on that ground. Contrary to the determination of the District Court, no “provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs” (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]). Moreover, the Insurance Department’s interpretation of the Regulations “is entitled to deference unless irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]). An assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). The opposing affirmation submitted by plaintiff’s counsel did not raise a triable issue of fact with respect to these causes of action. As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests, plaintiff’s remaining objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing the fourth and fifth causes of action should have been granted.

With respect to the second cause of action, seeking to recover upon a claim for $878.66, and the third cause of action, seeking attorney’s fees with respect thereto, defendant’s claim representative stated that defendant had received plaintiff’s claim for the sum of $878.66 on July 8, 2010 and that it had denied the claim on October 4, 2010. She also stated that defendant had [*2]sent delay letters, dated July 30, 2010 and September 9, 2010 to plaintiff after the receipt of the claim. The letters informed plaintiff that payment of the claim would be delayed pending an EUO of the injured party. However, an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to demonstrate that the claim underlying these causes of action had been timely denied. Thus, the branches of defendant’s motion seeking dismissal of the second and third causes of action were properly denied.

As the first cause of action does not allege a separate cause of action, it should also have been dismissed.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decided on July 7, 2014

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

Decided on July 1, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 17, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery on March 8, 2010, including a notice to take the deposition of plaintiff’s owner and its treating doctor. On November 17, 2010, plaintiff served a notice of trial and certificate of readiness. Thereafter, defendant moved, pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.17 (c) and CPLR 3126, to vacate plaintiff’s notice of trial and certificate of readiness, to strike the case from the trial calendar and, pursuant to CPLR 3124, to compel discovery. Defendant argued that it sought the testimony of plaintiff’s owner and documentary discovery in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits because it had failed to comply with applicable state or local licensing laws. In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Plaintiff opposed the motion, asserting, among other things, that defendant had failed to demonstrate its entitlement to discovery. By order entered July 6, 2011, the Civil Court conditionally granted defendant’s motion and ordered plaintiff to produce its “purported” owner and its “purported” employee for an examination before trial within 60 days of the order.

Defendant subsequently moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the July 6, 2011 order of the Civil Court since plaintiff had failed to produce its owner and its employee for duly scheduled examinations before trial. Plaintiff opposed the motion and submitted written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court entered July 17, 2012 which granted defendant’s motion and dismissed the complaint with prejudice.

” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012], quoting Giano v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its refusal to adequately comply with [*2]discovery requests, even after being directed to do so by court order, as well as the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).

Plaintiff’s remaining contention is not properly before this court as it is raised for the first time on appeal.

Accordingly, the order is affirmed.

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