[*1] Decided on October 28, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570194/13.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Nelida Malave-Gonzalez, J.), entered March 24, 2010, as denied its cross motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nelida Malave-Gonzalez, J.), entered March 24, 2010, insofar as appealed from, reversed, with $10 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

In opposition to defendant-insurer’s prima facie showing that its verification letters were timely and properly mailed, plaintiff failed to raise a triable issue sufficient to withstand summary judgment dismissal of this first-party no-fault action. The affidavit of an employee of a third-party biller, who had no personal knowledge of the date the purported “verification compliance” letter was mailed to defendant, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Accordingly, defendant is entitled to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013

[*1] Decided on October 28, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570509/13. October 2013 Term

Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.

MDJ Medical, P.C., NY County Clerk’s No. a/a/o Small Alison,570509/13 Plaintiff-Respondent, against Calendar No. 13-283 New York Central Mutual Insurance Company, Defendant-Appellant. 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 (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly. The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560). We note that “when [plaintiff’s] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (id.). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 28, 2013

OCTOBER 28, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

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 (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560). We note that “when [plaintiff’s] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3167 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered September 6, 2011, deemed from a judgment of the same court entered November 29, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 6, 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, finding that defendant had demonstrated, prima facie, its lack of medical necessity defense and that plaintiff had not rebutted defendant’s prima facie showing. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s only argument, both before the Civil Court and on appeal, is that the peer review report relied upon by defendant contained a stamped signature and, as a result, it was inadmissible. We find that plaintiff’s assertion, without any indication as to why plaintiff believed that the signature was a stamped signature, was insufficient to raise an issue of fact (see Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 127[A], 2011 NY Slip Op 51230[U] [App Term, 2d, 11th & 13th Jud Dists]). Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3029 K C.

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, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by a manager of Crossland Medical Review Services, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), and an affidavit from defendant’s litigation examiner, which established that the IME requests 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]). Defendant also submitted, among other things, an affidavit from the doctor who was to perform the orthopedic IMEs, as well as an affidavit from the chiropractor who was to perform the chiropractic/acupuncture IMEs, which were sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed to the address indicated by plaintiff (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Plaintiff’s remaining contentions also lack merit.

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

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2886 K C.

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 defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendants’ motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendants appeal from an order of the Civil Court which denied defendants’ motion for summary judgment dismissing the complaint.

In support of their motion, defendants proffered an affidavit by their claims examiner which was sufficient to establish that defendants’ denial of claim form 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]) and that plaintiff had submitted its claims to defendants more than 45 days after the date the services had been rendered to plaintiff’s assignor (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Defendants’ denial of claim form adequately advised plaintiff of the basis for the denial, and it further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Plaintiff failed to offer any explanation for the delay.

Accordingly, the order is reversed and defendants’ motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2408 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 13, 2011. The order granted 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 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, finding that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant’s denial of the claims was untimely.

The claim forms at issue were received by defendant on November 23, 2009 and November 24, 2009, respectively. It is undisputed that defendant did not deny the claims until January 12, 2010. Defendant demonstrated that, on November 19, 2009, prior to its receipt of the claim forms at issue, it had mailed a letter scheduling an EUO for December 4, 2009 to plaintiff’s assignor. (It is noted defendant has established that all mailings in this case were done 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)]). Consequently, a toll of defendant’s time to pay or deny the claims at issue went into effect at the time they were submitted (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 further showed that it had mailed a second letter rescheduling the EUO for December 10, 2009 at plaintiff’s assignor’s request, and a follow-up letter within 10 days after plaintiff’s assignors had failed to appear on December 10, 2009, scheduling the EUO for January 8, 2010. However, defendant was also required, at the same time it mailed its final EUO scheduling letter, to inform plaintiff of the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (Insurance Department Regulations [*2][NYCRR] § 65-3.6 [b]). As argued by plaintiff on appeal, defendant’s December 11, 2009 letter to plaintiff failed to specifically identify the party from whom the EUO had been requested. Since defendant failed to demonstrate that it had complied with Insurance Department Regulations (NYCRR) § 65-3.6 (b), it lost the benefit of the toll. As a result, defendant failed to demonstrate that its denial of claim form had been timely mailed, and it was therefore not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2346 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Patricia Anne Williams, J.), entered July 8, 2011. The order granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery.

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 to vacate the notice of trial, to compel plaintiff to provide complete responses to defendant’s discovery demands, and to produce plaintiff’s owner, Viviane Etienne, M.D., for an examination before trial.

Defendant established that the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. Moreover, defendant’s outstanding discovery demands seek to ascertain whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and in light of the fact that defendant set forth specific and detailed reasons for seeking the discovery at issue, the Civil Court properly granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide discovery (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; see also Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139[A], 2011 NY Slip Op 51551[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff’s remaining contention lacks merit, the order is affirmed (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3142 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered July 26, 2010. The order granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial, and denied the branch of plaintiff’s cross motion seeking a protective order.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s
discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion to strike the notice of trial, compel plaintiff to provide full and complete responses to defendant’s discovery demands, and produce Dr. Wilkins Williams for an examination before trial (EBT), and denied the branch of plaintiff’s cross motion seeking a protective order.

While plaintiff argues that defendant is not entitled to the discovery ordered by the court, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s demand for document production (see CPLR 3122 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]; see also Benfeld v Fleming Props., LLC, 44 AD3d 599 [2007]). Here, defendant failed to demonstrate that plaintiff’s tax returns were properly discoverable and, as a result, at this juncture, defendant’s request for such documentation should have been denied. Defendant, however, established its [*2]entitlement to depose Dr. Wilkins Williams (see CPLR 3101 [a]; see also All Boro Psychological Servs., P.C., 40 Misc 3d 131[A], 2013 NY Slip Op 51124[U]). In light of the foregoing, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff’s cross motion seeking a protective order.

Plaintiff’s contentions concerning those branches of its cross motion which sought to compel defendant to produce its special investigator and claims examiner for EBTs and to produce all documentation connected to its Special Investigation Unit’s investigation are not properly before this court. Since the Civil Court did not address these branches of plaintiff’s cross motion, they remain pending and undecided (see Fanelli v J.C. Millbank Constr. Co., Inc., 91 AD3d 703 [2012]; Young Chool Yoo v Rui Dong Wang, 88 AD3d 991 [2011]; Katz v Katz, 68 AD2d 536, 542-543 [1979]).

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to provide full and complete responses to defendant’s discovery demands is denied with regard to so much of the demand for document
production as sought to compel plaintiff to produce copies of its federal, state, and local income tax returns from 2007 to the present.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 15, 2013

[*1] Decided on October 15, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570160/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 24, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 24, 2012, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the chiropractic services underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013

[*1] Decided on October 8, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2012-370 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 1, 2011, deemed from a judgment of the same court entered December 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 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]).

In support of its motion, defendant submitted affidavits by its claims representatives which sufficiently established the timely mailing of the denial of claim forms (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]). The claims had been denied on the ground that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, an affidavit by defendant’s claims representative established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmation of plaintiff’s attorney did not raise a triable issue of fact in opposition to defendant’s motion.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal. Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 08, 2013