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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 26, 2011. The order, insofar as appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint. The order, insofar as cross-appealed from by plaintiff, denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted; as so modified, the order 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 on the ground, among others, that defendant was precluded from offering any evidence in support of its defenses because it had failed to timely comply with a so-ordered discovery stipulation. Defendant cross-moved for summary judgment dismissing the complaint on the grounds of lack of medical necessity and outstanding verification. The Civil Court denied both motions; found, among other things, that defendant had established timely denials of the claims at issue; and limited the trial to medical necessity. This appeal and cross appeal ensued.

Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.

As to two of the three claims at issue in this case, defendant submitted affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s [*2]determinations that there was a lack of medical necessity for the services. In opposition, plaintiff failed to submit any medical evidence to rebut the peer review reports. Since plaintiff has not challenged the Civil Court’s finding that, in effect, 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 these two claims should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; 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]).

As to the remaining claim, the affidavits submitted by defendant were sufficient to establish that defendant had timely mailed requests and follow-up requests for verification (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 failed to respond to the verification requests prior to the commencement of this action. Plaintiff offered no evidence in opposition. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing as premature so much of the complaint as sought to recover upon this claim should also have been granted, as defendant’s time to pay or deny the claim had not yet elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; 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]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 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 1, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its treating chiropractor for a deposition. Plaintiff cross-moved for summary judgment. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U][App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant is defending this action on the ground, among others, that the services rendered lacked medical necessity, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 08, 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 S. Garson, J.), entered June 21, 2011. The order denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint.

ORDERED that the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint, finding that defendant had established that it had paid the subject claims at the highest rate available for acupuncture services as set forth in the chiropractic fee schedule.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’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]). With respect to plaintiff’s claims for acupuncture services billed under codes 97810 and 97811, 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]). Accordingly, we do not disturb so much of the Civil Court’s order as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover for services billed under those codes. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99203, defendant should not have been awarded summary judgment [*2]dismissing so much of the complaint as sought to recover the $75.11 that had been billed under that code.

As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim (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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 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 (Ingrid Joseph, J.), entered August 2, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant sufficiently demonstrated that it addressed the letters to plaintiff’s assignor, defendant’s insured, at the address provided to it by its insured. In addition, defendant demonstrated that copies of the IME scheduling letters had been addressed to, and received by, plaintiff’s assignor’s attorney (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 8, 2013

APPEARANCES OF COUNSEL

Moshe D. Fuld, P.C., Brooklyn (David Karp and Cheryl Scher of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for respondent.

{**42 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms in question and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 3}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In an order entered August 17, 2011, the Civil Court found that defendant had established, for all purposes in the action, that defendant had issued timely and proper denials, and limited the trial to plaintiff’s “prima facie case” and the issue of medical necessity. Plaintiff appeals, as limited by the brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.

As plaintiff argues, it proved the submission of the relevant claim forms to defendant by annexing the denials, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Moreover, contrary to defendant’s argument on appeal, plaintiff established the fact and the amount of the loss sustained by demonstrating that its claim forms were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences [*2]and/or events recorded therein, and defendant did not rebut that showing. Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 4}

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. 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 07, 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 (Lisa S. Ottley, J.), entered June 8, 2011. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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 the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the affidavit of defendant’s claims division employee 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 that were billed under codes 97813 and 97814 (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those services. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99202, defendant should not have been awarded summary judgment dismissing so much of the complaint as sought to recover the sum of $53.61 that was billed under that code.

However, plaintiff was not entitled to summary judgment on that claim, as the affidavit submitted in support of plaintiff’s motion failed to establish that the claim form in question had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). [*2]

Accordingly, the order 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 the sum of $53.61 for an “initial evaluation,” which was billed under code 99202, is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 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 July 27, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and held that the sole remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted a sworn peer review report setting forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the services at issue. Plaintiff failed to rebut defendant’s prima facie showing. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s 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 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: August 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 (Pamela L. Fisher, J.), entered June 17, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

For the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. (39 Misc 3d 136[A], 2013 NY Slip Op 50595[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 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 February 16, 2011. The order, insofar as appealed from as limited by the brief, 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 fact and amount of the loss sustained.

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, as limited by its brief, from so much an order of the Civil Court as 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 fact and the amount of the loss sustained.

Contrary to defendant’s argument on appeal, plaintiff established the fact and amount of the loss sustained by demonstrating that the claim form at issue is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein. Consequently, we do not disturb that finding. We note that, contrary to defendant’s argument on appeal, the order did not find that plaintiff had established, for all purposes in the action, that defendant had not timely denied the claim or had issued a claim that was conclusory, vague, or without merit as a matter of law, as the order directs that a trial be held on the issue of medical necessity.

Moreover, upon the record before us, which, contrary to defendant’s assertion on appeal, includes an affidavit of a doctor, submitted by plaintiff in opposition to defendant’s cross motion, we find that there are triable issues of fact as to the medical necessity of the service provided.

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

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