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 (Devin P. Cohen, J.), dated June 3, 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, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that it lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f).

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claim based on plaintiff’s [*2]failure to appear, 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]). Since plaintiff does not claim to have responded in any way to the EUO request, 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]), and therefore discovery relevant to the reasonableness of the EUO requests was not necessary to oppose the motion (see CPLR 3212 [f]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, 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 (Nancy M. Bannon, J.), entered April 26, 2011, deemed from a judgment of the same court entered May 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 26, 2011 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,358.32.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which defendant’s appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant argues on appeal that plaintiff did not establish its prima facie entitlement to summary judgment because it failed to prove that the claims had been mailed to defendant and it failed to lay a foundation for its claim forms pursuant to CPLR 4518. Contrary to defendant’s [*2]arguments, plaintiff satisfied both of these prongs of its prima facie case (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Delta Diagnostic Radiology, P.C. v. Progressive Cas. Ins. Co., 11 Misc 3d 136[A], 2006 NY Slip Op 50491[U] [App Term, 2d & 11th Jud Dists 2006]).

Furthermore, the affidavit of defendant’s claims representative failed to establish that defendant had timely mailed its 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]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defense that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and therefore failed to raise a triable issue of fact.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, 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 (Lisa S. Ottley, J.), entered March 30, 2011. The order, insofar as appealed from, upon, in effect, granting defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint, adhered to the prior determination denying the cross motion.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 5, 2010, denied both plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, finding that “the sole issue for trial is medical necessity.” Defendant appeals from so much of an order of the Civil Court entered March 30, 2011, as, in effect, upon granting defendant’s motion for leave to reargue its prior cross motion, adhered to the prior determination that defendant was not entitled to summary judgment.

Defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the [*2]medical supplies at issue, in that the supplies were superfluous, given that the assignor was already receiving three forms of therapy, which the peer reviewer stated was “more than adequate.” In opposition, plaintiff submitted an affirmation by a medical doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s cross motion should have been granted (see 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]).

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 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 (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish 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]) the denial of the claim form at issue, [*2]which denied the claim on the ground of lack of medical necessity. Moreover, defendant submitted a properly affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical equipment at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant’s cross motion should have been granted (see 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]).

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

Pesce, P.J., Rios and Solomon, 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 (Carolyn E. Wade, J.), entered May 2, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

The papers submitted by defendant in support of its cross motion were sufficient to establish 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]) denials of the two claims at issue, which denied the claims on the ground of lack of medical necessity. However, on the record before us, we find that there are triable issues of fact as to the medical necessity of the supplies provided. [*2]Therefore, while the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint, plaintiff’s motion for summary judgment should also have been denied.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, 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 (Devin P. Cohen, J.), entered April 4, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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, finding that plaintiff had failed to comply with a condition precedent to coverage in that it had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment. Plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms and that defendant lacked justification for its 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 (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 [*2]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]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Solomon, 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 (Robin Kelly Sheares, J.), entered March 11, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint 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 so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Defendant established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, 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 sworn peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the MRIs at issue. In opposition to defendant’s motion, plaintiff submitted affirmations by a medical doctor [*2]which were sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, 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, Richmond

County (Orlando Marrazzo, Jr., J.), entered February 10, 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant’s moving 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 a sworn peer review report and a sworn independent medical examination (IME) report, each of which set forth a factual basis and a medical rationale for the determination that there was no medical necessity for the chiropractic services at issue. In opposition to the motion, plaintiff submitted an affidavit by a chiropractor which failed to meaningfully refer to or rebut the [*2]conclusions of either the peer reviewer or of the chiropractor who had performed the IME (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant’s motion should have been granted (see 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]).

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

Pesce, P.J., Rios and Solomon, 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, Queens County (Carmen R. Velasquez, J.), entered March 3, 2011. The order granted plaintiff’s motion for leave to enter a default judgment against defendant unless defendant served and filed an answer within 30 days, and denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for leave to enter a default judgment against defendant is denied and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in October 2009. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment against defendant, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court granted plaintiff’s motion to the extent of directing defendant to serve and file an answer within 30 days, stating that, upon defendant’s failure to comply, plaintiff would be permitted to enter judgment. The court denied defendant’s cross motion.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in [*2]moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). As plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff’s motion is denied and defendant’s cross motion is granted.

Pesce, P.J., Rios and Solomon, 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 June 25, 2010, deemed from a judgment of the same court entered October 27, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied its motion for summary judgment and granted defendant’s cross 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]).

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim [*2]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 failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). 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., 35 AD3d 720). In view of the foregoing, and as plaintiff’s remaining contentions lack merit, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 06, 2013