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 12, 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 plaintiff’s first, second, and fifth through eighth causes of action 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit from an employee of the company that had been retained by defendant to schedule independent medical examinations (IMEs). The affidavit established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office 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 an affidavit from the chiropractor who was to perform the IMEs, which affidavit was sufficient to establish 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]). In addition, an affidavit executed by defendant’s employee demonstrated that the denial of claim forms with respect to the claims at issue in plaintiff’s first, second, fifth, sixth, seventh and eighth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of defendant’s motion seeking summary judgment dismissing these causes of action should have been granted.

With respect to the claims at issue in plaintiff’s third and fourth causes of action, the affidavit by defendant’s employee did not establish, as a matter of law, that these claims had been timely denied. Contrary to defendant’s contention, defendant’s defense based upon the assignor’s failure to appear for IMEs is subject to preclusion if defendant failed to timely deny these claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). As a result, the Civil Court properly denied the branches of [*2]defendant’s motion seeking summary judgment dismissing the third and fourth causes of action.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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, 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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).

A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claim after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim form was untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009] see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011] but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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 (Robin Kelly Sheares, J.), entered December 20, 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (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 demonstrated that it had not received all of the verification requested, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Thus, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004] D & R Med. Supply v. American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and plaintiff’s action is premature. Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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 (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint

ORDERED that the judgment is reversed, with $30 costs, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

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. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s motion for summary judgment was based upon plaintiff’s failure to appear for scheduled examinations under oath (EUOs). However, defendant failed to proffer evidence in admissible form establishing when it had received plaintiff’s claim forms (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, defendant did not establish that it had tolled the 30-day period within which defendant was required to pay or deny the claims so that it may be determined, as a matter of law, that its NF-10 denial of claim form had been timely mailed. As defendant has not demonstrated that it is not precluded from raising its defense that plaintiff failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009] cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]), its motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order entered November 17, 2011 is vacated, and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited, pursuant to stipulations, to defendant’s defense of lack of medical necessity. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports. At a trial on the issue of medical necessity, although peer review reports are not admissible to prove the lack of medical necessity, in the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness based on his independent review of plaintiff’s assignor’s medical records. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review reports into evidence lacks merit (see Alev Med. Supply, Inc. v Government Employees Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51096[U] [App Term, 2d, 11th & 13th Jud Dists 2013] A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 17, 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 (Robin S. Garson, J.), entered July 2, 2010. The order, insofar as appealed from, 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.

Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion.

Defendant established that the time to pay or deny plaintiff’s claim had been tolled by the timely issuance of examination under oath (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 claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Since 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 720, 722 [2006]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 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 February 6, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

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 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and CPLR 3212.

In support of its motion, defendant established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants in that action, including plaintiff herein, “are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue.” As the instant action seeks to recover for assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case, defendant’s motion was properly granted (see Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d, 11th & 13th Jud Dists 2013] 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])

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 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 (William A. Viscovich, J.), entered February 6, 2012. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

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]). However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided. Consequently, defendant’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

2012-838 Q C., concur.
Decision Date: March 11, 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 (Robin Kelly Sheares, J.), entered December 21, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining claims and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted; as so modified, the order, insofar as appealed from, is affirmed, with $25 costs to defendant.

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 granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $80.02 for date of service August 2, 2010, finding that plaintiff’s prima facie showing with respect thereto was not opposed in defendant’s papers, and further found for all purposes in the action that plaintiff had established its prima facie case with respect to the remaining causes of action. The Civil Court denied defendant’s cross motion for summary judgment dismissing the complaint, but found that defendant had established that it had timely denied plaintiff’s remaining claims and that the sole issue for trial was defendant’s defense that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. ( ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as defendant raises no other issue with respect to plaintiff’s claim seeking $80.02 for services rendered on August 2, 2010, there is no basis to disturb so much of the order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover on that claim.

With respect to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied [*2]upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the complaint, except for so much of the complaint as sought to recover upon plaintiff’s claim for $80.02 for date of service August 2, 2010, are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 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 (Robin Kelly Sheares, J.), entered December 20, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Defendant did not raise any issue warranting the dismissal of plaintiff’s claim for $154.29 for the initial acupuncture visit on January 6, 2009, billed for under fee schedule treatment code 99205 (cf. Rogy Medical, P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon this claim, and which denied defendant’s cross motion insofar as it sought summary judgment dismissing that portion of the complaint. Defendant’s contention that plaintiff is barred from recovering attorney’s fees with respect thereto pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.6 (i) lacks merit.

As to plaintiff’s remaining claims, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition, plaintiff relied upon an affirmation from plaintiff’s counsel which failed to establish the existence of a triable issue of [*2]fact.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $154.29 for the initial acupuncture visit on January 6, 2009 is granted and plaintiff’s motion is otherwise denied, and by further providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the remaining claims are granted; as so modified, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014