SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 4, 2013, which denied its motion for entry of a default judgment against defendants.

Per Curiam.

Order (Andrea Masley, J.), entered June 4, 2013, affirmed, without costs.

The plaintiff insurer commenced the underlying actions, consolidated below, seeking declaratory relief and review by way of trial de novo of five separately issued master arbitrator’s awards issued in favor of defendant medical providers on their claims for first-party no-fault benefits. While Civil Court had jurisdiction to entertain the lawsuit (see CCA 212-a; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]), we sustain the dismissal of the consolidated actions on the merits. De novo review of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is in the amount of $5,000 or more, in which case the dispute is subject to a “plenary judicial adjudication” pursuant to Insurance Law § 5106(b) (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987]). Since none of the master arbitrator’s awards giving rise to these actions met or exceeded the statutory threshold sum of $5,000, de novo review was unavailable, and the individual complaints served by plaintiff seeking such relief did not state a viable cause of action. In this posture, the court was warranted in dismissing the consolidated actions upon plaintiff’s motion for entry of a default judgment (see generally Aprea v New York State Bd. of Elections, 103 AD3d 1059, 1061 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered September 5, 2013, which denied its motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its principal for deposition, and upon searching the record, granted plaintiff summary judgment in the principal sum of $784.40.

Per Curiam.

Order (Joseph E. Capella, J.), entered September 5, 2013, insofar as appealed from, modified by vacating the grant of summary judgment to plaintiff; as so modified, order affirmed, without costs.

The motion court improperly searched the record and awarded summary judgment to plaintiff on its claim for first-party no-fault benefits, in view of the conflicting medical expert opinions adduced by the parties as to the medical necessity of the acupuncture services sued for and plaintiff’s own acknowledgment below that issues of fact exist “warranting a trial” on the issue of medical necessity.

However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition (see Ralph Med. Diagnostics, PC v Mercury Cas. Co., ____ Misc 3d ____, 2014 NY Slip Op 24054 [App Term, 1st Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 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 (Dawn Jimenez Salta, J.), entered October 28, 2011, deemed from a judgment of the same court entered January 10, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 28, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $2,597.88.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 28, 2011 is vacated, plaintiff’s motion for summary judgment is denied 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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 by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is reversed, the order entered October 28, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 (Katherine A. Levine, J.), entered January 13, 2012. The order, insofar as appealed from 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 reversed, with $30 costs, 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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Defendant established that it had 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]) letters and follow-up letters scheduling examinations under oath (EUOs), and the denial of claim form. Defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. Consequently, defendant demonstrated that plaintiff had failed to satisfy a condition precedent to defendant’s liability on the insurance policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the Civil Court improvidently exercised its discretion in excluding from consideration the affidavit of Edward Belfield on the ground that the affidavit, while notarized, was not accompanied by a certificate of conformity required by CPLR 2309 (c), as the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012] see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Bey v Neuman, 100 AD3d 581 [2012] Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted. Weston, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: April 07, 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 (Katherine A. Levine, J.), entered November 22, 2011. The order, insofar as appealed from 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 appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The court stated that the only issue for trial was “the mailing of the IME scheduling letters.”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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]). 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 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 (Maureen A. Healy, J.), entered November 23, 2011. The order, insofar as appealed from 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 appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The court stated that the only issue for trial was “whether [defendant] mailed timely and proper IME scheduling letters to [plaintiff].”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor in accordance with that office’s standard mailing practices and procedures (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]). Contrary to the Civil Court’s order, it was not necessary to mail the initial scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [c] § 65-3.6 [b]). 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 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 (Reginald A. Boddie, J.), entered October 18, 2011. 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 which denied defendant’s motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs).

Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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 by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Defendant received the claims at issue after plaintiff’s assignor had failed to appear for IMEs with two different healthcare professionals. Defendant alleged that it had denied one of these claims within 30 days of its receipt and that it had requested verification on the other claim and then denied that claim within 30 days of its receipt of the requested verification. An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures for the timely mailing of verification requests and denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is noted that, contrary to plaintiff’s argument on appeal, defendant’s follow-up verification request complied with Insurance Department Regulations (11 NYCRR) § 65-3.6 (b).

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 (Pamela L. Fisher, J.), entered November 2, 2011. The order granted defendant’s 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 seeks to recover the sum of $201.96, representing the portion of a $472.30 claim that was not paid by defendant. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim form (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 demonstrated that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant had denied $200 of the claim at issue due to the deductible (see Insurance Law § 5102 [b] [3]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing so much of the complaint as seeks $200 (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Finally defendant’s submission of its claims representative’s affidavit, along with a copy of the “NYS Medicaid DME Services Fee Schedule,” which has been adopted as the Durable Medical Goods Fee Schedule for Workers’ Compensation (see 12 NYCRR 442.2 [a]), was sufficient to demonstrate that plaintiff was entitled to receive $22.04 for Code E0190, the sum defendant has already paid, and not $24.00, the sum that plaintiff had billed (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: April 07, 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 (Alice Fisher Rubin, J.), entered September 17, 2009. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively; as so modified, the order, insofar as appealed from, is affirmed, without 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. The Civil Court denied both the motion and the cross motion, but limited the issues for trial pursuant to CPLR 3212 (g), stating that “the only issues of fact are those of lack of medical necessity and whether [plaintiff] complied with [defendant’s] verification requests.” As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.

It is undisputed that defendant denied three of the bills at issue, for $274.26 (date of service December 15, 2006), $248.67 and $274.26 (date of service January 30, 2007), respectively, on the ground that the services billed for were not medically necessary. In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for those services. Defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been 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]). [*2]

It is undisputed that defendant did not deny two bills, for $357.07 and $414.45, respectively. The Civil Court found a triable issue of fact as to whether plaintiff had complied with defendant’s requests for verification of these claims. However, plaintiff did not raise a triable issue of fact with respect to that issue, since it failed to submit an affidavit by an individual with personal knowledge establishing that it had responded to the requests. Morever, while plaintiff argues on appeal that a trial should be held as to the reasonableness of the requests, inaction is an improper response to a verification request, and therefore plaintiff’s objections regarding the requests will not now be heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999] 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] Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been granted.

Defendant failed to submit any proof in support of its defense that it had paid the claim for $114.33 in compliance with the workers’ compensation fee schedule. Defendant also failed to address the final claim at issue, for $82.89. Accordingly, the branches of its cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 (Pamela L. Fisher, J.), entered January 20, 2011. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, limited the issues for trial to the timeliness and propriety of defendant’s denial of claim forms and to the defenses preserved in such denials (see CPLR 3212 [g]).

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, plaintiff moved for summary judgment. The Civil Court denied the motion, but limited the issues for trial to the timeliness and propriety of defendant’s denial of claim forms and to the defenses preserved in such denials. Defendant argues on appeal that the Civil Court, in effect, granted plaintiff’s motion for summary judgment, and that it should not have made CPLR 3212 (g) findings in plaintiff’s favor.

Contrary to defendant’s position on appeal, the court did not grant plaintiff’s motion for summary judgment. Rather, the court limited the issues of fact for trial, which it is permitted to do when a motion for summary judgment is denied or partially denied (see CPLR 3212 [g]).

Defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___ 2013 NY Slip Op 08430 [2d Dept 2013]). Defendant’s contention on appeal that plaintiff had failed to demonstrate the submission to defendant of the claim forms in question is without merit, as defendant admitted receipt of each of the claim forms at issue. Defendant’s remaining contention lacks merit.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014