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.), dated June 22, 2010. The order, insofar as appealed from, granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January 11, 2007 through January 16, 2007.

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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court dated June 22, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service July 13, 2006, August 1, 2006 through August 28, 2006, October 10, 2006 through October 31, 2006, November 3, 2006 through November 27, 2006, December 7, 2006 through December 18, 2006, and January [*2]11, 2007 through January 16, 2007.

Insofar as is relevant to this appeal, the affidavit submitted by defendant was sufficient to establish 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 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. Defendant also submitted an affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, defendant established its prima facie entitlement to summary judgment (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]). Defendant’s showing that the services rendered to plaintiff’s assignor were not medically necessary was unrebutted by plaintiff (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]).

Plaintiff’s remaining contentions lack merit (see Quality Health Prods. v Geico Gen. Ins. Co., 34 Misc 3d 157[A], 2012 NY Slip Op 50415[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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 order, insofar as appealed from, is affirmed.

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 (Dawn Jimenez Salta, J.), entered March 10, 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 is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated, and those branches of defendant’s cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s appeal from so much of an order of the Civil Court entered March 10, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is deemed to be from a judgment of the same court entered May 7, 2010 dismissing the complaint (see CPLR 5501 [c]). [*2]

In support of its cross motion, defendant submitted affirmed independent medical examination reports, each of which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided on May 2, 2005 through May 31, 2005, June 2, 2005 through June 30, 2005, June 14, 2005, July 5, 2005 through July 19, 2005, August 1, 2005 through August 15, 2005, and September 20, 2005. Consequently, defendant established its prima facie entitlement to summary judgment on 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]). Since plaintiff failed to rebut this showing (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]), the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims were properly granted.

However, the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005 should have been denied. In support of its cross motion, defendant failed to proffer sufficient evidence to establish as a matter of law that these claims had been improperly billed or were in excess of the amount permitted by the 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]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Additionally, a portion of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon a claim for date of service April 28, 2005 should have been denied. Although defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for six of the services provided on this date, which conclusion plaintiff failed to rebut, one of the services, which had been was billed at a rate of $182.18, and had been partially paid by defendant in the amount of $154.30, had been partially denied since it had allegedly exceeded the maximum allowance under a fee schedule. However, defendant failed to proffer sufficient evidence to establish as a matter of law that the remaining balance of this claim, in the amount of $27.88, was, in fact, in excess of the amount permitted by the applicable fee schedule (see Rogy Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U]).

Accordingly, the judgment is reversed, so much of the order entered March 10, 2010 as granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service April 13, 2005 and May 17, 2005, and so much of the claim for date of service April 28, 2005 as sought the unpaid sum of $27.88 is vacated and those branches of defendant’s cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur. [*3]
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, Queens County (Richard G. Latin, J.), entered December 23, 2010. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 and found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims in question based on a lack of medical necessity. The Civil Court denied both motions, and held that plaintiff had [*2]“established its prima facie entitlement to summary judgment, pursuant to CPLR 3212 (g)” and that defendant had “timely and properly denied said bills.” The court further stated that the sole issue to be determined at trial was the medical necessity of the services that had been rendered to plaintiff’s assignor. Plaintiff appeals from so much of the order as denied the branch of plaintiff’s motion seeking summary judgment on the complaint insofar as it sought to recover upon plaintiff’s claim for $879.73, and so much of the order as found, pursuant to CPLR 3212 (g), that defendant had timely denied that claim.

To make a prima facie showing of entitlement to summary judgment, a no-fault provider must submit proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant had either failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]).

By invoking CPLR 3212 (g) and by limiting the trial in this case to the issue of medical necessity, the court implicitly found that (1) the fact and the amount of the loss sustained, and (2) the submission of the claim form to defendant, were “established for all purposes in the action” because they were “not in dispute” or were “incontrovertible” (CPLR 3212 [g]).

While the Civil Court also found, as incontrovertible, that defendant had timely denied plaintiff’s claim for $879.73, plaintiff correctly notes on appeal that, in defendant’s papers, defendant failed to even allege that it had mailed the denial of that claim. Plaintiff argues that, given the Civil Court’s CPLR 3212 (g) finding that, with respect to the claim for $879.73, plaintiff had established its prima facie entitlement to judgment as a matter of law, coupled with defendant’s failure to establish in its motion papers a timely denial of the claim, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon plaintiff’s claim for $879.73 should have been granted.

In opposition, defendant argues, among other things, that the Civil Court’s finding that plaintiff had established its prima facie case was incorrect because plaintiff had not proven the fact and the amount of the loss sustained. Plaintiff responds by arguing that this finding is not reviewable because defendant did not cross-appeal.

Under the circumstances presented, we need not reach the question of whether defendant was required to cross-appeal in order to obtain review of the CPLR 3212 (g) finding which established, for all purposes in the action, the fact and the amount of the loss sustained since, contrary to defendant’s argument on appeal, plaintiff did establish the fact and the amount of the loss sustained by demonstrating that its claim form is admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences and/or events recorded therein, and defendant did not rebut that showing. Thus, whether or not the CPLR 3212 (g) finding in question can be reviewed on this appeal, plaintiff is entitled to summary judgment on so much of the complaint as sought to recover upon its claim for $879.73.

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon [*3]plaintiff’s claim for $879.73 is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees as to that claim.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.H.O.), entered November 18, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial.

ORDERED that the appeal is dismissed as academic.

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 denied plaintiff’s motion for summary judgment and granted the branch of defendant’s amended cross motion seeking to compel plaintiff to provide defendant with responses to its discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT). Subsequent to the entry of the November 18, 2010 order, the Civil Court dismissed the complaint. The dismissal of the [*2]complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 08, 2013

[*1]

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

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Abrams, Cohen & Associates, New York City (Barry Cohen of counsel), for respondent.

{**39 Misc 3d at 10} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an examination before trial (EBT).

Plaintiff was required, but failed, to challenge the propriety of defendant’s discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff{**39 Misc 3d at 11} is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d{**39 Misc 3d at 12} 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Pursuant to CPLR 3124, if a party fails to respond to or comply with any request, notice, interrogatory, demand or order under article 31 of the CPLR, the party seeking disclosure may move to compel compliance (see also CPLR 3126). There is no requirement upon the movant other than to show that no response had been received. Thus, in the case at bar, defendant was not required to demonstrate that its discovery demands were not palpably improper. Rather, in order to successfully oppose defendant’s cross motion to compel, plaintiff would have had to show that defendant’s defense of billing fraud was precluded because it was not asserted in a timely NF-10 denial of claim form, which plaintiff did not do.

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). In addition, defendant is entitled to an EBT of Vladimir Grinberg (see CPLR 3101 [a]; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [2008]). Consequently, the Civil Court properly denied plaintiff’s motion for summary judgment (see CPLR 3212 [f]) and granted defendant’s cross motion to compel plaintiff to provide full and complete responses to defendant’s discovery demands and to produce Vladimir Grinberg for an EBT.

Accordingly, the order is affirmed.

Pesce, P.J., Rios 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 (Ingrid Joseph, J.), entered February 23, 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.

Plaintiff’s assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), and the defense of a lack of medical necessity for the rendered services can be precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey (see Matter of Allstate Ins. Co. [Stolarz – New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]).

Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 27 Misc 3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff’s motion for summary judgment should have been denied.

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

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

Pesce, P.J., Weston and Aliotta, JJ., concur. [*3]
Decision Date: February 01, 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 (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered February 3, 2011 which granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law. Subsequent to the entry of the February 3, 2011 order, the Civil Court entered an order dismissing the complaint. The dismissal of the complaint renders this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc [*2]3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the appeal is dismissed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 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 (Leslie J. Purificacion, J.), entered January 13, 2011. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. The appeal is deemed to be from a judgment of the same court entered February 4, 2011 awarding plaintiff the principal sum of $1,780.19 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, 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, defendant [*2]appeals from so much of an order as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, and denied the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in support of its cross motion for summary judgment established that defendant 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]; see also All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51346[U] [App Term, 2d, 11th & 13th Jud Dists 2012]) plaintiff’s claims for dates of service December 18, 2008 and May 18, 2009 on the ground of lack of medical necessity. Defendant also annexed an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report and the IME 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]). As a result, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009 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]).

Accordingly, the judgment is reversed, so much of the order entered January 13, 2011 as granted the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for dates of service December 18, 2008 and May 18, 2009, 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.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 01, 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 August 4, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, in effect, 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 that denied its motion for summary judgment and granted defendant’s cross motion, in effect, for summary judgment dismissing the complaint.

For the reasons stated in D & R Med. Supply v American Tr. Ins. Co. (32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: February 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 (Robert R. Reed, J.), entered April 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered April 18, 2011, affirmed, with $10 costs.

We sustain the denial of defendant’s motion for summary judgment dismissing this first-party no-fault action. Defendant’s June 26, 2008 request for additional verification in the form of an examination under oath (EUO) of the plaintiff medical provider was untimely and did not serve to toll defendant’s time to pay or deny the claim, since the request was made well beyond the requisite 15-day time period following the assignor’s EUO (see 11 NYCRR 65-3.5[b]; 65—3.8[a][1]; see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 17-18 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 01, 2013