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.), dated December 8, 2009. 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 the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon plaintiff’s claims for $1,045 and $950 and its claim for $1,140 for services rendered January 28, 2008 through February 26, 2008 are denied, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,045 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $418.99 for services rendered November 12, 2007 through November 29, 2007 upon that claim, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $950 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $380.90 for services rendered November 30, 2007 though December 20, 2007 upon that claim; as so modified, the order is affirmed, [*2]without costs, and the matter is remitted to the Civil Court for all further proceedings with respect to the unpaid portions of those claims and the remaining claim.

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

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of its prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The complaint seeks to recover upon claims in the principal sums of $1,045, $950, $1,140 (for services rendered December 27, 2007 through January 14, 2008) and $1,140 (for services rendered January 28, 2008 through February 26, 2008). A review of the record indicates that, with respect to plaintiff’s $1,045 claim, defendant timely (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]) paid $418.99 and denied the remaining $626.01, and, with respect to the $950 claim, defendant timely (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123]; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) paid $380.90 and denied the remaining $569.10. These claims were partially denied on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers’ compensation fee schedule. As plaintiff concedes that defendant paid $418.99 and $380.90, respectively, of these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the paid portion of the claims should be granted. However, as there is an issue of fact as to whether plaintiff is entitled to recover the unpaid portion of these claims, $626.01 and $569.10, respectively, neither party is entitled to summary judgment with respect thereto (see East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2008]).

With regard to the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as seeks to recover upon its $1,140 claim for services rendered December 27, 2007 through January 24, 2008, defendant failed to establish the proper mailing of the independent medical examination (IME) scheduling letters (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that plaintiff’s assignor had failed to appear at either of the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Excel Radiology Serv., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In light of the foregoing, defendant failed to raise a triable issue of fact with respect to this claim, and we do not disturb so much of the order as awarded plaintiff summary judgment upon so much of the complaint as sought to recover upon this claim.

With regard to plaintiff’s $1,140 claim for services rendered January 28, 2008 through February 26, 2008, the affidavit of defendant’s no-fault examiner was sufficient to overcome the presumption that a proper mailing had occurred and to raise a triable issue of fact as to whether defendant had received the claim (see Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As [*3]a result, neither party is entitled to summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon plaintiff’s claims for $1,045 and $950 and its claim for $1,140 for services rendered January 28, 2008 through February 26, 2008 are denied, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,045 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $418.99 for services rendered November 12, 2007 through November 29, 2007 upon that claim, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $950 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $380.90 for services rendered November 30, 2007 though December 20, 2007 upon that claim; as so modified, the order is affirmed and the matter is remitted to the Civil Court for all further proceedings with respect to the unpaid portions of those claims and the remaining claim.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 20, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered April 25, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered April 25, 2011, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint 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).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 20, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 18, 2013

A-Quality Med. Supply v GEICO Gen. Ins. Co., 30 Misc 3d 485, reversed.

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for respondent.

{**39 Misc 3d at 25} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for further proceedings consistent herewith.

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 witness identified the peer review reports at issue, all but one of which he had authored. He testified, based upon his review of the documentation upon which all of the peer reviews were based, that the supplies at issue were not medically necessary. The Civil Court declined to consider the peer review reports, on the ground that some of them were not dated, signed or notarized, and held, in its posttrial decision, that the peer review reports could not serve as a valid basis for defendant’s denials. The court awarded judgment to plaintiff without consideration of the testimony of defendant’s witness. Defendant appeals and we reverse.

The Insurance Department Regulations require merely that a “copy” of a peer review report be produced to a provider upon written demand (Insurance Department Regulations [11 NYCRR] § 65-3.8 [b] [4]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Moreover, the Insurance{**39 Misc 3d at 26} Department Regulations do not prescribe a format for a peer review report. It is only when a peer review report is being submitted in support of or in opposition to a motion that it must be properly sworn or affirmed (see CPLR 3212 [b]; see e.g. BLR Chiropractic, P.C. v American Tr. Ins. Co., 35 Misc 3d 141[A], 2012 NY Slip Op 50882[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Points of Health Acupuncture, P.C. v GEICO Ins. Co., 33 Misc 3d 127[A], 2011 NY Slip Op 51843[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Thus, the Civil Court incorrectly held that the peer review reports involved herein were an insufficient basis for defendant’s denial of the claims.

Since defendant’s expert witness testified regarding the factual basis and medical rationale for his opinion that the supplies furnished lacked medical necessity, such testimony should have been considered by the court (Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Psychology YM, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In light of the foregoing, and the fact that the court never passed upon the credibility of defendant’s witness, a new trial is required. We note that, at trial, the issue of medical necessity is to be resolved based upon the testimony given by medical experts. 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. Indeed, admission of a peer review report into evidence as part of a defendant’s proof of lack of medical necessity may constitute impermissible bolstering of its expert’s testimony (see generally Cohn v Haddad, 244 AD2d 519 [1997]).

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

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

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 10, 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 defendant’s cross motion for summary judgment dismissing the complaint 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.

Although plaintiff established that defendant had not paid the claim, plaintiff failed to show that the basis for the denial of the claim was conclusory, vague or lacked merit as a matter of law (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, [*2]2d, 11th & 13th Jud Dists 2011]). Thus, the Civil Court properly determined that plaintiff had failed to establish its prima facie case.

In opposition to defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, plaintiff submitted an affidavit by its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Neomy Med., P.C. v GEICO Ins. Co., 34 Misc 3d 144[A], 2012 NY Slip Op 50145[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

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

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 15, 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 March 26, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal from the order is deemed to be from a judgment of the same court entered November 3, 2010 dismissing the action (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 26, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross 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, as limited by its brief, from so much of an order of the Civil Court as 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]).

In Great Wall Acupuncture, P.C. v Geico Ins. Co. (26 Misc 3d 23, 24-25 [App Term, 2d, [*2]11th & 13th Jud Dists 2009]), this court held:

“an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services . . . Consequently, since it is undisputed that the instant defendant reimbursed plaintiff pursuant to the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.”

In the instant case, defendant failed to establish, as a matter of law, that the amount it had paid plaintiff was the maximum amount permitted by the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor and that defendant had properly denied the remaining portion of each of the claims at issue. As a result, defendant failed to demonstrate its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, we reach no other issue.

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment dismissing the complaint is denied.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: March 15, 2013

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 March 16, 2011, which denied its motion to dismiss the complaint pursuant to CPLR 3211.

Per Curiam.

Order (Fernando Tapia, J. ), entered March 16, 2011, affirmed, with $10 costs.

Accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v Martinez, 84 NY2d 83, 87—88 [1994]), we find the complaint, as amplified by the affidavit in opposition of plaintiff’s billing manager (see Commissioners of State Ins. Fund v Wojciech Perkowski, Inc., 291 AD2d 219 [2002]), sufficient to state a cause of action for recovery of first-party no-fault benefits. Nor was the affidavit of defendant’s no-fault litigation examiner so “essentially undeniable” as to qualify as documentary evidence that conclusively refutes any claim that plaintiff might have (see Mason v First Cent. Nat. Life Ins. Co. of New York, 86 AD3d 854, 855 [2011]; Siegel, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, CPLR C3211:10, at 21—22).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 12, 2013

[*1]

Supreme Court, Appellate Term, First Department, March 12, 2013

APPEARANCES OF COUNSEL

Picciano & Scahill, P.C., Westbury (Albert J. Galatan of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City (Steven J. Neuwirth of counsel), for respondent.

{**39 Misc 3d at 16} OPINION OF THE COURT

Per Curiam.

Order, entered April 17, 2012, affirmed, without costs.

A related Supreme Court action brought by the defendant insurer against various medical providers resulted in a declaration that defendant was entitled to deny all no-fault claims arising from injuries allegedly sustained by plaintiff’s assignor (Cuffie) in the underlying July 2, 2008 motor vehicle accident. Since the plaintiff medical supplies provider was not a party to the declaratory judgment action it is not bound by Supreme Court’s determination, as it did not have a full and fair opportunity to contest the issues in that proceeding (see Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). Although plaintiff’s assignor was a named party in the prior action, plaintiff cannot be deemed to be in privity with its assignor, since the declaratory judgment action was commenced after the assignment (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]).

Schoenfeld, J. (concurring). In light of the Court of Appeals’ holding in Gramatan Home Invs. Corp. v Lopez (46 NY2d 481 [1979]), I join my colleagues in voting to affirm the order denying summary judgment to the defendant insurer. Considerations of due process prohibit binding a party to the result of an action in which that party has not been given an opportunity to be heard. I write separately to [*2]acknowledge that the outcome reached today does not serve to promote the purposes of this State’s No-Fault Law to provide a less costly, more efficient automobile accident reparation system and to ease court congestion (see Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]).

As (now retired) Justice Golia properly recognized in closely analogous circumstances, no-fault actions do not fit squarely within the Gramatan rule, given “the unique nature and reality of the assignment of claims for first-party benefits under the Insurance{**39 Misc 3d at 17} Law and the no-fault regulations of this State” (Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67, 69 [2010 dissenting op]). That being so, and in view of the prior Supreme Court judgment declaring that plaintiff’s assignor and the assignee providers named as defendants in that action “are not entitled to first-party benefits” stemming from the subject motor vehicle accident due to the assignor’s “material misrepresentations in the procurement of the insurance policy,” it is not unreasonable to say that the denial of summary judgment dismissing this assignee provider’s claim tends to exalt form over substance, delaying the seemingly inevitable dismissal of the claim until after trial. Nonetheless, on balance, I feel compelled to adhere to the rule set forth in Gramatan without a signal to the contrary from a higher appellate authority. Lastly, and parenthetically, it is noted that in the event the plaintiff assignee does not ultimately succeed against defendant on the no-fault claim, plaintiff could seek redress against the assignor under the clear terms of the assignment of benefits form.

Lowe, III, P.J., and Torres, J., concur; Schoenfeld, J., concurs in a separate opinion.

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 1, 2011, deemed from a judgment of the same court entered March 30, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 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 $2,259.69.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims for reimbursement of assigned first-party no-fault benefits since plaintiff’s assignor had, prior to this action, elected to arbitrate claims for no-fault benefits which he had not assigned and which arose out of the same accident as was involved in the instant action. Consequently, defendant argued that arbitration was the only proper forum for plaintiff to seek recovery of its assigned no-fault claims. Plaintiff opposed defendant’s motion, contending that it was not precluded from litigating the instant action since its assignor had assigned his no-fault benefits to it prior to the commencement of the arbitration of the assignor’s claims and since the plaintiff herein was not a party to that arbitration. Plaintiff also cross-moved for summary judgment. By order entered March 1, 2011, the Civil Court denied defendant’s motion, finding that the motion papers established that the assignment of benefits predated the assignor’s election to arbitrate and that, therefore, the Roggio case was not applicable, and granted plaintiff’s cross motion. Defendant appeals from the March 1, 2011 order. A judgment was subsequently entered awarding plaintiff the principal sum of $2,259.69, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly denied defendant’s motion. As the Civil Court correctly noted, [*2]since plaintiff’s assignor had executed the assignment of benefits to plaintiff prior to his commencement of his own arbitration, the holding in Roggio (66 NY2d 260) does not apply here and, thus, plaintiff was not precluded from litigating the claims at issue in this action (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

However, the Civil Court should have denied plaintiff’s cross motion for summary judgment. Plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of plaintiff’s billing supervisor, which was missing several paragraphs, was insufficient to establish that the documents annexed to plaintiff’s motion papers constituted proof of the fact and the amount of loss sustained (see CPLR 4518 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: March 05, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered July 20, 2011, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered July 20, 2011, modified to dismiss plaintiff’s first through sixth, and ninth trough twelfth causes of action; as modified, order affirmed, without costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims set forth in the first through sixth, and ninth through twelfth causes of action, 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 specifically 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).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: March 01, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered December 10, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claim based on a chiropractor’s sworn peer review report, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the underlying MRI tests lacked medical necessity. In opposition, plaintiff failed to raise a triable issue. The unsworn letter report submitted by plaintiff from the assignor’s treating chiropractor was without probative value (see CPLR 2106; Pierson v Edwards, 77 AD3d 642 [2010]), and, even if considered, the conclusory findings set forth therein were insufficient to withstand summary judgment (see 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: February 21, 2013