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 March 31, 2011. The order, insofar as appealed from by plaintiff, denied plaintiff’s motion for summary judgment. The order, insofar as cross-appealed from by defendant, denied defendant’s cross motion for, among other things, summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted; as so modified, the order is affirmed, with $25 costs to plaintiff, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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 upon the complaint’s 10 causes of action, and defendant cross-appeals from so much of the order as denied its cross motion for, among other things, summary judgment dismissing the complaint.

In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its [*2]president which established that the claim forms had been mailed to defendant (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 affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff’s motion were 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]).

As to plaintiff’s first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs), were untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]). Consequently, as to these claims, defendant is precluded from asserting its defense that there had been a failure to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

As to plaintiff’s fourth and tenth causes of action, defendant’s mere denial of receipt of those claims was insufficient to rebut the presumption of receipt established by plaintiff’s proof of mailing (see Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists 2005]). Thus, defendant failed to raise a triable issue of fact as to these two claims.

Defendant’s remaining contentions lack merit.

Accordingly, the order is modified by providing that 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 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Cheree A. Buggs, J.), entered February 17, 2011, deemed from a judgment of the same court entered March 1, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint, awarded plaintiff the principal sum of $501.50.

ORDERED that the judgment is reversed, with $30 costs, so much of the February 17, 2011 order as granted the branch of plaintiff’s motion seeking summary
judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s motion is denied, and that branch of defendant’s cross motion 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 [*2]complaint on the ground that all three bills at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs) on September 4, 2009 and September 23, 2009. The Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s first two bills, implicitly finding that defendant had proved that the EUOs had been properly scheduled and that plaintiff had failed to appear. However, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon the last bill, for $501.50, on the ground that defendant had failed to issue two scheduling letters addressing the date of service for that bill.

The claim for $501.50 was denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for the two properly scheduled EUOs that had been previously requested by defendant with regard to the same accident and the same assignor. Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, this claim was timely and properly denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Contrary to the finding of the Civil Court, it was not necessary for defendant to issue new scheduling letters addressing this particular bill (id.).

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the bill for $501.50 and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint is vacated, that branch of plaintiff’s is denied, and that branch of defendant’s cross motion is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Margaret A. Pui Yee Chan, J.), entered December 16, 2010, deemed from a judgment of the same court entered February 22, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

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

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

On appeal, plaintiff argues, among other things, that it raised a triable issue of fact as to the medical necessity of the psychological testing at issue by submitting a letter of medical necessity and the prior trial testimony of a Dr. Franklin Porter. However, the letter of medical necessity did not meaningfully refer to, let alone rebut, the conclusions of defendant’s [*2]psychologist (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]; see also Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and Dr. Porter’s testimony has no relevance to the peer review report at issue in this case. While Dr. Porter testified generally, in an unrelated trial, that certain psychological tests have utility, the peer review report relied upon by defendant in this case concluded that they were not medically necessary under the factual circumstances presented by this case. Plaintiff’s remaining contentions on appeal are without merit and/or unpreserved for appellate review.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Johnny Lee Baynes, J.), entered November 29, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first eight causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered December 15, 2010 awarding plaintiff the principal sum of $1,931.61 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 29, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first eight causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, and those branches of defendant’s cross motion are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on its complaint and defendant cross moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court, by order entered November 29, 2010, in effect, granted the branches of plaintiff’s motion seeking [*2]summary judgment on its first eight causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action, by directing a judgment to be entered in favor of plaintiff in the principal sum of $1,931.61, representing plaintiff’s first eight causes of action. A judgment was subsequently entered in favor of plaintiff in that amount. After the judgment was entered, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s first, second, seventh and eighth causes of action, 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 initial and follow-up requests for verification to plaintiff and that plaintiff had failed to provide the requested verification. In opposition, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run, and plaintiff’s causes of action upon these claims are premature (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])

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s third through sixth causes of action, defendant submitted an affidavit by a supervisor of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted, among other things, an affidavit from the doctor who was to perform the physiatrist/PMR IMEs which was sufficient to establish that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied these claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Therefore, defendant was entitled to summary judgment dismissing those causes of action (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Accordingly, the judgment is reversed, so much of the order entered November 29, 2010 as granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first eight causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, and those branches of defendant’s cross motion are granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Johnny Lee Baynes, J.), entered November 29, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

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 from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment on the ground that it had timely denied plaintiff’s claims based upon the assignor’s failure to appear for duly scheduled examinations under oath (EUOs). However, defendant failed to establish that the EUO scheduling letters had been mailed prior to the dates of the scheduled EUOs. As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Johnny Lee Baynes, J.), entered November 29, 2010, deemed from a judgment of the same court, entered December 13, 2010 (see CPLR 5512 [a]). The judgment, entered pursuant to the November 29, 2010 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 $2,773.22.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered November 29, 2010, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. After judgment was entered awarding plaintiff the principal sum of $2,773.22, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]). [*2]

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s first, fifth, and sixth causes of action, defendant submitted an affidavit by a supervisor of Media Referral, Inc., which had been retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, affidavits by the doctors who were to perform the IMEs which established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was entitled to summary judgment dismissing these causes of action (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s third, fourth, seventh and ninth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) its initial and follow-up requests for verification to plaintiff and that plaintiff had failed to provide the requested verification. In opposition, plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification. Consequently, the 30-day period within which defendant was required to pay or deny these claims did not begin to run, and plaintiff’s causes of action upon those claims are premature (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]).

Defendant’s cross motion failed to address plaintiff’s second and eighth causes of action; therefore, defendant is not entitled to summary judgment dismissing these causes of action. However, the branches of plaintiff’s motion seeking summary judgment on these causes of action should have been denied, as plaintiff failed to establish that those claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law on so much of the complaint as sought to recover upon those claims (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 judgment is reversed, so much of the order entered November 29, 2010 as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, third, fourth, fifth, sixth, seventh and ninth causes of action is vacated, plaintiff’s motion is denied, and those branches of defendant’s cross motion are granted. [*3]

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 October 18, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find for all purposes in the action that plaintiff had established its prima facie case. ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, with $25 costs.

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 granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find, for all purposes in the action, that plaintiff had established its prima facie case. On appeal, plaintiff contends that it demonstrated the existence of a triable issue of fact as to the medical necessity of the services rendered and that the court should have made a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

In opposition to defendant’s motion for summary judgment dismissing the complaint, [*2]plaintiff submitted an affirmation by a medical doctor which was 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]). However, contrary to plaintiff’s further contention, plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (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, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 April 28, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 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 plaintiff’s 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 argument on appeal, the affidavit submitted by defendant established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v [*2]Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted peer review reports, as well as affirmations executed by the physicians who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. Defendant’s prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the affirmations executed by the peer review physicians contained electronic stamped facsimiles of the peer reviewers’ signatures and, as a result, defendant failed to provide proof in admissible form to establish its defense of lack of medical necessity. However, the record indicates that the signatures were placed on the affirmations by the doctors who had performed the peer reviews or at their direction (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]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Reginald A. Boddie, J.), entered January 6, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 6, 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 $2,782.80.

ORDERED that the judgment is reversed, with $30 costs, so much of the January 6, 2011 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered January 6, 2011 which granted plaintiff’s motion for summary judgment and denied 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]).

The affidavit by defendant’s claims examiner submitted in opposition to plaintiff’s motion [*2]and in support of defendant’s cross motion was sufficient to establish that defendant’s claim denial forms, which denied plaintiff’s claims on the ground that the medical equipment provided was not medically necessary, 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]). In addition, the affirmed peer review reports by defendant’s doctors that were submitted, were sufficient to establish a lack of medical necessity for the medical equipment in question, as they provided a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the equipment (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]). In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor which was sufficient to raise a triable issue of fact as to the equipment’s medical necessity (see 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]; cf. 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 judgment is reversed, so much of the order entered January 6, 2011 as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 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 (Jacqueline D. Williams, J.), entered May 4, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 4, 2010 order denying plaintiff’s motion for summary judgment and granting the branch of defendant’s cross motion seeking, in effect, summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings.

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 the branch of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is [*2]deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, its motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

With respect to defendant’s cross motion, defendant established that it had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the claims at issue in this action, with the exception of a bill in the sum of $880.44 for services rendered September 7, 2005. As the affidavit by defendant’s no-fault litigation supervisor which defendant submitted is silent with respect to this claim, defendant did not establish that the claim had been timely denied.

With respect to the claims which were denied based upon an independent medical examination (IME), the sworn IME report, which was annexed to defendant’s cross motion as an exhibit, established a lack of medical necessity for the services, and plaintiff failed to rebut defendant’s prima facie showing. Consequently, defendant was entitled to the dismissal of those claims (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]).

With respect to the claims seeking the sums of $1,109.05, $3,227.26 and $1,153, the affidavit by defendant’s no-fault litigation supervisor established that the initial and follow-up verification requests for additional verification had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and that plaintiff had failed to provide all of the requested additional verification. Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and, thus, so much of the complaint as sought to recover upon these claims is premature (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]).

Defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon a claim for $880.44 for services rendered October 10, 2005 because “defendant failed to conclusively establish its stated defense[] that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009])” (Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51623[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2012]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Accordingly, the judgment is reversed, so much of the order entered May 4, 2010 as granted the branches of defendant’s cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services [*3]
rendered October 10, 2005 is vacated, those branches of defendant’s cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 11, 2013