SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered March 28, 2012, which denied its cross motion for summary judgment on the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), entered March 28, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The record raises several triable issues, including whether the amounts of the timely denied claims properly reflected plaintiff’s apparent status as a surgical facility or were otherwise in excess of the rates set forth in the governing fee schedule (see MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). Plaintiff waived any purported defect in the affidavit of defendant’s adjuster by failing to contest its admissibility (see Akamnonu v Rodriguez, 12 AD3d 187 [2004]). The new arguments raised in plaintiff’s reply papers, even if properly considered (cf. Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]), failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur.
Decision Date: December 24, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated May 3, 2011. The order denied plaintiffs’ motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the District Court properly denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had not demonstrated their prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order is affirmed.

LaCava, J.P., Nicolai and LaSalle, JJ., concur. [*2]
Decision Date: December 21, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated February 28, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without 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 District Court as denied plaintiff’s motion for summary judgment. Plaintiff’s moving papers failed to establish a prima facie entitlement to judgment as a matter of law because the affidavit submitted by plaintiff’s billing manager was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were 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]; New York Diagnostic Med. Care, P.C. v GEICO Cas. Ins. Co., 35 Misc 3d 131[A], 2012 NY Slip Op 50681[U] [App Term, 9th & 10th Jud Dists 2012]). In view of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: December 21, 2012

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 (Jodi Orlow, J.), entered January 3, 2011. The order denied plaintiff’s motion for leave to renew its prior motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, by order entered July 29, 2010, the Civil Court granted plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint to the extent of finding that plaintiff had “established its prima facie case in that the subject bills were timely submitted and remain unpaid” and defendant had “established that it timely denied the subject bills,” and that “[t]here remains a triable issue of fact as to the medical necessity of the services rendered. The parties shall proceed to trial on this issue only.” Thereafter, by order entered January 3, 2011, the Civil Court denied plaintiff’s subsequent motion, pursuant to CPLR 2221 (e) (2), for leave to renew its prior motion for summary judgment on the ground that the holding in Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) created new law which required an insurer to issue denial of claim [*2]forms in duplicate. Plaintiff appeals from the latter order.

The Civil Court properly denied plaintiff’s motion for leave to renew since the holding of Excel Imaging, P.C. did not constitute a change in the law (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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 (Terrence C. O’Connor, J.), entered October 25, 2010, deemed from a judgment of the same court entered December 6, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 25, 2010 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 $2,342.94.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross 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 October 25, 2010 which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant’s denials were nullities because they had not been issued in duplicate (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]). A [*2]judgment awarding plaintiff the principal sum of $2,342.94 was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled independent medical examinations (IMEs) of plaintiff’s assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with NCEI’s standard office practices and procedures (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 an affidavit by the chiropractor/acupuncturist who was to perform the IMEs which established that plaintiff’s assignor had failed to appear for the scheduled IMEs. An
affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed to plaintiff, plaintiff’s assignor, and plaintiff’s assignor’s attorney (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that, upon deciding to deny a claim, “the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” Plaintiff has offered no argument as to why defendant’s mailing of each denial of claim form to plaintiff, plaintiff’s assignor and plaintiff’s assignor’s attorney, respectively, does not satisfy this requirement. Accordingly, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since plaintiff failed to raise a triable issue of fact, defendant’s motion for summary judgment dismissing the complaint should have been granted.

Accordingly, the judgment is reversed, the order entered October 25, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 24, 2010. 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 the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a $70 claim for a thermophore is granted and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim 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 its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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 [*2]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 claim at issue on the ground of lack of medical necessity. Moreover, defendant annexed to its motion papers an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies provided, with the exception of a thermophore, which the peer reviewer found to be medically necessary (see e.g. 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]). On appeal, defendant concedes that plaintiff is entitled to recover upon so much of plaintiff’s complaint as sought $70 for the thermophore.

In opposition to defendant’s cross motion for summary judgment, plaintiff failed to raise a triable issue of fact, since it did not submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). Thus, the Civil Court properly granted the branches of defendant’s cross motion seeking summary judgment dismissing the remainder of the complaint.

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon the $70 claim for a thermophore is granted and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is denied.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 21, 2012

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.), entered August 17, 2010, deemed from a judgment of the same court entered September 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 17, 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 $2,204.77.

ORDERED that the judgment is affirmed, without costs.

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

Inasmuch as defendant raises no issue on appeal regarding whether plaintiff established its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil [*2]Court’s determination with respect thereto.

To raise a triable issue of fact based on the failure of plaintiff’s owner to appear at scheduled examinations under oath (EUOs), defendant was required to demonstrate that its initial and follow-up EUO scheduling letters had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and to establish, through an affidavit by one with personal knowledge, that plaintiff’s owner had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO 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 failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s owner to appear for the EUOs (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: December 21, 2012

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 (Alan L. Lebowitz, J.H.O.), entered June 29, 2010. The order, insofar as appealed from, granted, to a limited extent, the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is denied.

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 the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial (EBT) to the extent of compelling plaintiff to appear for an EBT limited to the issue of the relationship between plaintiff and the treating acupuncturists.

In an affirmation in support of defendant’s motion to compel, defendant’s attorney argued that the treating acupuncturists were not plaintiff’s employees; rather, they were independent [*2]contractors and, therefore, plaintiff was ineligible to recover the assigned no-fault benefits at issue. However, defendant’s denial of claim forms did not deny plaintiff’s claims on the ground that the treatment at issue had been rendered by independent contractors. Therefore, defendant is precluded from asserting that ground for denial of coverage as a defense in this litigation (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2012 NY Slip Op 06902 [2d Dept, Oct 17, 2012]). Consequently, the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT in support of this defense should have been denied, as this discovery demand is palpably improper (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012

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 (Genine D. Edwards, J.), entered September 24, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment. The appeal from the order entered September 24, 2009 brings up for review so much of an order of the same court entered September 2, 2010 as, upon granting the branch of defendant’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint and plaintiff’s prior cross motion for summary judgment, adhered to the portions of the prior order which denied defendant’s prior motion and granted the branches of plaintiff’s prior cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 (see CPLR 5517 [b]).

ORDERED that the appeal from the order entered September 24, 2009 is dismissed, as that order was superseded by the order entered September 2, 2010, made upon reargument; and it is further,

ORDERED that the order entered September 2, 2010, insofar as reviewed, is modified by [*2]providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied; as so modified, the order entered September 2, 2010, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits and asserted seven causes of action seeking to recover upon claims for $1,180, $550.44, $780.98, $489.28, $305.80, $183.48, and $122.32, respectively. Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment. The Civil Court, by order entered September 24, 2009, denied defendant’s motion and granted plaintiff’s cross motion. Thereafter, defendant moved for leave to reargue. By order entered September 2, 2010, the Civil Court granted reargument and, upon reargument, adhered to so much of the prior order as denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28.

The affidavit of defendant’s litigation examiner was insufficient to establish timely mailing of the NF-10 denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish its entitlement to summary judgment dismissing the complaint.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the 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]; Avenue T MPC Corp. v Auto One Ins. Co., 33 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Inasmuch as plaintiff failed to demonstrate that defendant had untimely denied the claims or that defendant had issued NF-10 denial of claim forms which were conclusory, vague or without merit as a matter of law, plaintiff failed to established its prima facie entitlement to summary judgment with respect to its claims for $1,180, $550.44, $780.98, and $489.28.

Accordingly, the order entered September 2, 2010, insofar as reviewed, is modified by providing that, upon reargument, the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover upon claims for $1,180, $550.44, $780.98, and $489.28 are denied.

Pesce, P.J., Weston and Rios, 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 October 16, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

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

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for examinations under oath (EUOs) of plaintiff had been timely sent (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since defendant failed to establish that it had tolled its time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff’s principal failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment dismissing the complaint (see NYU-Hosp. for Joint Diseases v American [*2]Intl. Group, Inc., 89 AD3d 702 [2011]; Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 21, 2012