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.), dated February 15, 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, defendant appeals from so much an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion papers established that defendant 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]) based on a lack of medical necessity. In addition, defendant submitted two affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the determination that there was no medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been 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]). Plaintiff’s remaining contentions on appeal lack merit (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 22, 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, Richmond County (Philip S. Straniere, J.), entered February 17, 2011. The order granted defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action is barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). “In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant . . . when the summons is served upon the defendant” (CPLR 203 [b] [1]). The present action was commenced in the Civil Court in 2003 by service of the summons, pursuant to CPLR 312-a (see CCA former 403), before the filing system for commencing actions in the Civil Court took effect. Here, dismissal of the action due to a violation of former section 409 of the New York City Civil Court Act, which required that a copy of the summons with proof of service ^[FN1] be filed with the clerk of the court within 14 days after service of the summons, is not warranted, since, by order entered October 16, 2009, the Civil Court (Katherine A. Levine, J.) conditionally permitted the filing thereof nunc pro tunc ^[FN2] [*2]
(see CCA former section 411; J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co., 24 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is undisputed that plaintiff filed the summons with proof of service in accordance with Judge Levine’s order and, thus, the filing was given nunc pro tunc effect (see CCA former section 411). Consequently, since the cause of action accrued in 2002, defendant failed to make a prima facie showing that the six-year statute of limitations (see CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the April 2003 commencement of the action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 22, 2013

Footnotes

Footnote 1: In the instant case, proof of service was defendant’s signed acknowledgment of receipt of the mailed service of the summons (see CPLR 312-a [b]).

Footnote 2: The issue of whether the Civil Court providently exercised its discretion in permitting the nunc pro tunc filing after more than five years is not subject to review on this appeal.

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered July 31, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ruben Franco, J.), entered July 31, 2012, affirmed, with $10 costs.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary disposition. The defendant insurer failed to establish, prima facie, that its requests for verification in the form of an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. Defendant’s EUO letters of July 18, 2006 and August 2, 2006 preceded its receipt of plaintiff’s August 10, 2006 claim, and thus did not trigger the tolling of the 30-day period (see Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., _ AD3d _, 2013 NY Slip Op 02390 [2nd Dept 2013]). Moreover, triable issues are raised as to whether, assuming defendant properly mailed its August 26, 2006 EUO request, it made the required follow-up request for verification (see 11 NYCRR 65-3.6[b]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 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 4, 2011, deemed from a judgment of the same court entered September 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 4, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,564.50.

ORDERED that the judgment is reversed, with $30 costs, the order entered August 4, 2011 is vacated, plaintiff’s motion for summary judgment is denied 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 the action was premature since plaintiff had failed to provide all of the requested verification. Defendant appeals from an order of the Civil Court entered August 4, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross [*2]motion for summary judgment dismissing the complaint. A judgment was subsequently entered in favor of plaintiff, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit by its claims examiner which established that defendant had 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]) its request and follow-up request for verification, which sought, among other things, prescribed NF-3 claim forms. With respect to the prescribed claim forms, the Insurance Department Regulations provide that “[a]n insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]). The regulation further permits an insurer to require submission of the prescribed form (id.). Contrary to the determination of the Civil Court, the information contained in the claim forms which plaintiff submitted to defendant was not “substantially the same information” (Insurance Department Regulations [11 NYCRR] § 65-3.5 [f]) as required to be set forth on a prescribed NF-3 form (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., ___ AD3d___, 2013 NY Slip Op 02390 [2d Dept 2013]).

Since plaintiff did not demonstrate that it had provided defendant with all of the requested verification prior to the commencement of this action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the judgment is reversed, the order entered August 4, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted. In light of our determination, we do not reach defendant’s remaining contentions.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

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

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

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission into evidence of a peer review report and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. Co., ____ Misc 3d ____, 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]). In this case, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit. [*2]

The remainder of plaintiff’s objections similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [App Term, 2d, 11th & 13th Jud Dists 2012]; Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 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 (Rudolph E. Greco, Jr., J.), entered April 20, 2011. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the total sum of $3,988.58.

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 denied plaintiff’s claims on the ground of “material misrepresentation” because plaintiff had billed for a heating pad which defendant had determined had not been provided to plaintiff’s assignor. Defendant moved for summary judgment dismissing the complaint, contending that, since one of plaintiff’s claim forms billed for an electric heating pad which had not been provided to plaintiff’s assignor, plaintiff was barred, as a result of this material misrepresentation, from receiving no-fault benefits for the electric heating pad as well as for the remaining supplies for which plaintiff sought to recover. Plaintiff opposed the motion. The Civil Court, by order entered April 20, 2011, granted defendant’s motion to the extent of dismissing so much of the [*2]complaint as sought to recover for the heating pad, on the ground that it had not been delivered to plaintiff’s assignor, but denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for the remaining supplies billed for, which amounted to $3,988.58. Defendant appeals from so much of the order as denied those branches of its motion.

Defendant failed to establish as a matter of law that the claim forms which are the subject of this appeal sought payment of assigned first-party no-fault benefits for medical supplies that had not actually been provided by plaintiff to its assignor. Defendant also failed to establish that the provider’s billing for a heating pad which had never been delivered to plaintiff’s assignor voided the automobile insurance policy underlying this action from the policy’s inception and that, therefore, defendant need not pay for any of the other medical supplies which may have been furnished to plaintiff’s assignor under this policy.

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

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered May 10, 2010. 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 $2,063.10, plus statutory interest and attorney’s fees.

After plaintiff presented its prima facie case at the trial of this action by a provider to recover assigned first-party no-fault benefits, defendant offered no defense, but relied upon the record. The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).

Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $2,063.10, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered March 26, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $912.

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

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held solely with respect to defendant’s defense of lack of medical necessity. Defendant’s expert witness identified her peer review report and conclusorily testified that the radiology services at issue were not medically necessary. Although the court allowed the peer review report into evidence for the limited purpose of showing that it was prepared by defendant’s expert witness, it did not consider the contents of the report. The court granted plaintiff’s motion for a directed verdict and awarded judgment to plaintiff, holding that defendant had not established a lack of medical necessity for the services at issue.

Since defendant’s expert’s testimony did not include a factual basis or medical rationale for her opinion, it was insufficient to establish that there was a lack of medical necessity for the services rendered (see A-Quality Med. Supply v GEICO Gen. Ins. Co., Misc 3d , 2013 NY Slip Op 23088 [App Term, 2d, 11th & 13th Jud Dists 2013]; PSW Chiropractic Care, P.C. [*2]v Maryland Cas. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Additionally, a peer review report, unlike a witness, is not subject to cross-examination and is not admissible by defendant to prove lack of medical necessity (see A-Quality Med. Supply, Misc 3d , 2013 NY Slip Op 23088). Thus, the Civil Court’s determination that defendant had not established that the services at issue were not medically necessary, could have been reached under a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]).

As we find no basis to disturb the Civil Court’s findings, the judgment is affirmed.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 14, 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 (Nancy M. Bannon, J.), entered July 14, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

ORDERED that the order, insofar as appealed from, is modified, by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim; 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 appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim in the amount of $2,619.20 and granted the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon this claim to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

On appeal, defendant argues that it established that so much of the complaint as sought to recover on the claim for $2,619.20 should have been dismissed based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations, which is a breach of a condition precedent to coverage. However, defendant concededly did not deny the claim on that ground. Therefore, defendant failed to establish its entitlement to summary judgment with respect to the $2,619.20 claim (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

In support of its cross motion for summary judgment, plaintiff failed to prove the fact and the amount of the loss sustained, by demonstrating that the claim form annexed to its cross motion was admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff failed to establish its prima facie case with respect to its $2,619.20 claim (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision thereof granting the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon a claim in the amount of $2,619.20 to the extent of holding that plaintiff had established its prima facie case with respect to this claim.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 06, 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 (Katherine A. Levine, J.), entered May 16, 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. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion and found that defendant had established a timely and proper denial of the claim at issue on the ground of lack of medical necessity and that the sole remaining issue for trial was medical necessity.

In support of its cross motion, defendant submitted an affirmed 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 the supply at issue. Defendant’s showing that the supply at issue was not medically necessary was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise [*2]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., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013