[*1] Decided on November 21, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-551 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of the order as denied the branches of defendant’s motion seeking to dismiss so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

Defendant established that it had timely denied the claims at issue (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]) on the ground that each assignor had failed to appear for examinations under oath (EUOs). It [*2]further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is reversed and the branches
of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

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

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath. Consequently, in my opinion, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes were properly denied.

Accordingly, I would affirm the order, insofar as appealed from.
Decision Date: November 21, 2013

[*1] Decided on November 21, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-663 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 26, 2010. The order denied defendant’s motion to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied as to so much of the complaint as seeks to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14, and by further providing that defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial solely with respect to the issue of plaintiff’s billing practices; 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 to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy, plaintiff’s owner and the treating provider, respectively, for examinations before trial (EBTs) regarding plaintiff’s “treatment” and “billing practices,” and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied [*2]plaintiff’s claims on the ground that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

With respect to plaintiff’s claims for the sums of $114, $300.32, and $931.68, it is undisputed that these claims were not paid or denied within 30 days of their receipt. Nor does defendant assert that the EUOs of Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy were requested, or pending, during that time. We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Consequently, defendant failed to demonstrate that these three claims had been timely denied and therefore did not establish that its defenses as to these three claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to so much of the complaint as sought to recover upon these claims.

In opposition to the remaining branches of plaintiff’s motion, defendant established that the EUO scheduling letters had been 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]; ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for the EUOs (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]) and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14 are denied.

With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.” However, as defendant’s denial of claim form did not raise any defense based on “treatment,” defendant is precluded from raising any such defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs solely with respect to the issue of plaintiff’s billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]; Arco Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 21, 2013

[*1] Decided on November 14, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570792/12.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 22, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 22, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist to its assignor. The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.

Inasmuch as the Superintendent of Insurance has not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, 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 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]). Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate. Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 19, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to modify a judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with the decision herein.

On this appeal in an action by a provider to recover assigned first-party no-fault benefits, the issue is whether prejudgment interest should accrue from the filing, or the service, of the summons and complaint.

Insofar as is relevant to this appeal, the facts are as follows: Plaintiff filed the summons and complaint in this action on October 27, 2008, but service was not completed until January 26, 2009. Subsequently, a nonjury trial was held, limited to the issue of medical necessity. At the beginning of the trial, the parties stipulated that, among other things, defendant had sent timely denials of the claims at issue in December 2007 and January 2008. After the trial, the Civil Court found that defendant had not proven its defense and directed that judgment be entered in favor of plaintiff. Based upon an assessment of damages submitted by plaintiff, a judgment was entered on March 12, 2011 awarding plaintiff the principal sum of $2,680 plus interest in the sum of $1,393.60, the interest being awarded from October 27, 2008, the date of the filing of the summons and complaint. Defendant thereafter moved to modify the judgment, arguing that, pursuant to CCA 412, the interest should have been awarded from January 26, 2009, the date of the service of the summons and complaint. The Civil Court denied defendant’s motion. We reverse.

The no-fault regulations provide, in pertinent part:

“If an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken . . .” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]).
In this case, defendant timely denied the claims at issue and plaintiff did not commence the action within 30 days the of receipt of those denials. Thus, the interest did not begin to accrue until plaintiff commenced this action. New York City Civil Court Act 400 (1) provides that a Civil Court action is commenced by the filing of a summons and complaint. However, section 412 of the New York City Civil Court Act further provides:
“In any action, petition, order to show cause or other proceeding wherein interest accrues from the date of the inception of the action, petition, order or proceeding, said entitlement to interest shall not begin to accrue until service is completed by the actual index number being properly depicted on the summons and provided to the party to be charged with the payment of interest.”
Because the no-fault regulations provide that, in situations such as the one here, interest on a no-fault claim does not accrue until the date of the inception of the action, CCA 412 applies (see 65 Siegel’s Practice Review, The New § 412, on the Accrual of Interest, at 1 [Sept. 2005]; All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 38 Misc 3d 268 [Civ Ct, Kings County 2012]). Therefore, the interest in this case should have been awarded from the date of the service of the summons and complaint, rather than from the date of the filing thereof.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with this decision.

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

Decision Date: November 12, 2013

[*1]

Alev Med. Supply, Inc. v Geico Gen. Ins. Co.

2013 NY Slip Op 52322(U) [44 Misc 3d 131(A)]

Decided on November 12, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Alev Medical Supply, Inc. as Assignee of JESUS ENCARNACION, Appellant, —

against

Geico Indemnity Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees.

Following a joint nonjury trial of this action by a provider to recover assigned first-party no-fault benefits and of seven other actions, the Civil Court directed a verdict in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case. A judgment dismissing the complaint was subsequently entered.

At the trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). The witness also offered testimony pertaining to the submission of the claim forms to defendant and of defendant’s failure to pay the claims. Thus, plaintiff established its prima facie case (see generally 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 offered no defense, instead relying upon the record, and rested its case.

At a trial, a plaintiff is not required to show that there is no defense to the cause of action or that a proffered defense lacks merit (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146 [App Term, 2d, 11th & 13th Jud Dists 2013]; cf. CPLR 3212 [b] [upon a motion for summary judgment, a plaintiff must “show that there is no defense to the cause of action or that the . . . defense has no merit”]). Rather, it is the defendant’s burden at trial to show that it has a [*2]meritorious defense. In view of the foregoing, judgment should have been awarded in favor of plaintiff.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered December 6, 2011. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1).

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1). By subsequent order entered November 19, 2012, the Civil Court granted defendant’s unopposed motion for summary judgment dismissing the complaint. In light of the November 19, 2012 order, this appeal must be dismissed as academic (see Livny v Rotella, 305 AD2d 377 [2003]; Cherico, Cherico & Assoc. v Lamanna, 21 Misc 3d 137[A], 2008 NY Slip Op 52292[U] [App Term, 9th & 10th Jud Dists 2008]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, jointly tried with seven other actions, plaintiff’s counsel marked several exhibits for identification. However, before he had the opportunity to move those exhibits into evidence, the Civil Court directed judgment in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case.

At the nonjury trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records and to establish the nonpayment of the claims (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms would have constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). Since the Civil Court erroneously directed judgment in favor of defendant before plaintiff’s counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims, the action should be remitted to the Civil Court for a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

[*1] Decided on October 30, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570566/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated September 6, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), dated September 6, 2011, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the assignor’s injuries were resolved and that the chiropractic treatment giving rise to plaintiff’s no-fault claim lacked medical necessity. In opposition, the unsworn doctor’s report submitted with plaintiff’s attorney’s affirmation was without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]; Henkin v Fast Times Taxi, Inc., 307 AD2d 814 [2003]). Moreover, even if considered, the report did not meaningfully refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer (CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013

[*1] Decided on October 30, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570565/13.

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered May 31, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered May 31, 2013, insofar as appealed from, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this action to recover assigned first-party no-fault benefits. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that “I do not find the need for . . . durable medical goods,” was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013

[*1] Decided on October 29, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 29, 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 Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its 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, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 29, 2013