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 (Johnny Lee Baynes, J.), entered December 1, 2011. The order, insofar as appealed from, 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 on the condition that defendant, within 60 days of the date of this order and decision, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit by Leigh Howie, identical to the affidavit by Leigh Howie submitted by defendant in support of its motion for summary judgment dismissing the complaint, accompanied by a certificate of conformity in compliance with CPLR 2309 (c) and Real Property Law § 299-a (1). In the event that defendant fails to duly serve and file such an affidavit, the order, insofar as appealed from, is affirmed, with $25 costs.

As is relevant to this appeal in an action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the [*2]ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), an entity which had scheduled the IMEs on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’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]). An affidavit by the chiropractor/acupuncturist who was to perform the IMEs established that plaintiff’s assignor had failed to appear for the scheduled IMEs. Defendant also submitted an affidavit by defendant’s claims representative, Leigh Howie, to demonstrate that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant appeals from so much of an order of the Civil Court as denied its motion.

The affidavit of Leigh Howie was executed out of state. Although it was accompanied by a document that purported to be a certificate of conformity, the certificate did not comply with Real Property Law § 299-a and, thus, the affidavit did not comply with CPLR 2309 (c) (see Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). While plaintiff timely objected to the form of defendant’s affidavit, a certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Cosentino v Molina, 36 Misc 3d 130[A], 2012 NY Slip Op 51282[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s motion for summary judgment dismissing the complaint should have been conditionally granted (see Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Rios, J.P., Pesce and Solomon, JJ., concur.
Decision Date: November 29, 2013

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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. Defendant’s motion papers set forth that defendant had timely denied the claims at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the affirmation submitted by defendant established that the EUO scheduling letters had been timely mailed in accordance with its law firm’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]). Furthermore, while plaintiff argues that certain [*2]letters submitted by defendant, which purported to delay payment of the claims, were insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), in this case the EUO scheduling letters themselves were sufficient to toll the claim determination period.

Finally, plaintiff argues that the affidavit submitted by defendant in order to prove that the denial of claim forms had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is affirmed.

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

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 Jiminez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and the amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,916.46 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

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 medical necessity of the services at issue (see CPLR 3212 [g]).

Contrary to defendant’s argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court’s implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued claim denials that were conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted a 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 nerve testing performed on August 19, 2009, for which plaintiff billed $1,916.46. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 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]).

However, with respect to a bill for $590.01 for other testing performed on August 19, 2009, defendant failed to demonstrate that these services were not medically necessary, as it relied upon an independent medical examination performed nearly one year later, which did not address these services.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 September 13, 2011. 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.

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 medical necessity of the supply at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a peer review report and an affidavit executed by the chiropractor who had performed the peer review, which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supply at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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 [*2]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., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 September 21, 2011, deemed from a judgment of the same court entered November 29, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 21, 2011 order granting defendant’s motion for summary judgment, 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, 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]).

Upon a review of the record, we find that defendant established, prima facie, that it had paid the claim at issue, and that plaintiff has failed to raise a triable issue of fact.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 May 5, 2011. 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant denied the claim at issue based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant’s counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & [*2]11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition precedent to coverage (see DVS Chiropractic, P.C., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 June 14, 2011. 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.

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 medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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 [*2]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., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 June 13, 2011. 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.

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 medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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 [*2]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., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 August 10, 2011. The order, insofar as appealed from as limited by the brief, granted 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 denied.

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 the services at issue were not medically necessary. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Carolyn E. Wade, J.), entered August 18, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009 and a claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009, which claim defendant alleged it had never received, and a claim for $42.02, which was the balance found to be due after defendant had allegedly paid plaintiff for services rendered from December 31, 2008 to January 28, 2009 pursuant to the worker’s compensation fee schedule. The court otherwise denied plaintiff’s cross motion for summary judgment.

On appeal, defendant argues that its motion for summary judgment dismissing the complaint should have been granted because it demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to
appear for duly scheduled examinations under oath (EUOs). Defendant had raised this defense in the Civil Court with regard to a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for services rendered on January 28, 2009, a claim for $249.96 for services rendered on January 19, 2009 and a claim for $272.92 for services rendered on February 17, 2009. Defendant did not raise this defense in the Civil Court with respect to the claim for $319.97 for services rendered on February 17, 2009 and the claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009, nor did it establish that it had timely denied the latter claims on that ground. Since defendant did not, in its appellate brief, proffer any argument as to why the Civil Court’s award of summary judgment to plaintiff on these claims was in error, we do not disturb the part of the order appealed from that granted summary judgment to plaintiff with respect to so much of the complaint as sought to recover upon these two claims.

Defendant demonstrated that the first four claims listed above had been denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for duly scheduled EUOs. The affidavits submitted by defendant established that its EUO scheduling letters had been mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that the EUOs had been properly scheduled (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]). Defendant also established that plaintiff had failed to appear at the duly scheduled EUOs, through both an affidavit by the investigator who had been assigned to conduct the EUOs, and statements made on the record by the same investigator (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint [*3]as sought to recover upon a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013