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 17, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 17, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In opposition to defendant’s prima facie showing of entitlement to judgment as a matter of law on the ground that plaintiff did not submit timely proof of its claim for first-party no-fault benefits (see 11 NYCRR 65—1.1; 65—3.3[d],[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 592 [2011]), plaintiff failed to raise a triable issue of fact. The conclusory affidavit of plaintiff’s employee, who had no personal knowledge of the date the claim was mailed, and described in only the most general terms her offices mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 677 [2007]). Nor did the certified mail receipt relied upon by plaintiff raise a triable issue as to actual mailing (see Mid City Construction Co., Inc. v Sirius America Insurance Company, 70 AD3d 789, 790 [2010]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]), especially given that the receipt contained two different postmarks and a file number that did not correspond to plaintiff’s claim. We also note that plaintiff submitted no proof of “reasonable justification” for the failure to provide timely notice of the claim (see 11 NYCRR 65-3.3[e]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d at 592).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: December 11, 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 (Michael A. Ciaffa, J.), entered August 2, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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

In support of its motion, defendant submitted an affidavit by its litigation examiner which established that defendant had timely mailed a request and follow-up request for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), and that the requested verification had not been provided. Since plaintiff has not rebutted defendant’s prima facie [*2]showing that defendant’s initial request and follow-up request for verification were timely mailed and that plaintiff failed to respond to the requests, defendant established that its time to pay or deny the claim had been tolled. Consequently, defendant’s motion for summary judgment dismissing the complaint, on the ground that the action was premature, should have been granted (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Contrary to plaintiff’s argument, plaintiff did not prove that defendant had issued a denial in response to the bill at issue. The denial attached to plaintiff’s opposition was a general denial, not a specific denial, as it did not set forth an amount of the bill, or the date of the bill, or who had rendered services, or what those services were. Moreover, the denial lists Candice Vernon as the applicant for benefits, not plaintiff, and explicitly states that the applicant is not an assignee.

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

LaSalle, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 07, 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 (Michael A. Ciaffa, J.), dated August 1, 2011. The order granted defendant’s motion for, in effect, 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, the District Court, by order dated December 10, 2010, stayed the action and required plaintiff to file proof, within 90 days of the date of the order, that its assignor had filed an application with the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The order further provided that, in the event plaintiff failed to do so, defendant’s motion for summary judgment dismissing the complaint would be granted unless plaintiff showed good cause why the complaint should not be dismissed.

Thereafter, defendant moved for, in effect, summary judgment dismissing the complaint, asserting that plaintiff had failed to comply with the prior order. As plaintiff failed to demonstrate in opposition to defendant’s instant motion that its assignor had made such an application, and did not show good cause why the complaint should not be dismissed, the District [*2]Court properly granted defendant’s motion for, in effect, summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50764[U] [App Term, 9th & 10th Jud Dists 2012]). Accordingly, the order is affirmed.

LaSalle, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 07, 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 (Carolyn E. Wade, J.), dated February 18, 2011. 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 reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Although the Civil Court denied defendant’s unopposed motion, it held that the only issue to be resolved at trial was whether defendant had issued the denial of claim form in duplicate.

Contrary to the finding of the Civil Court, the affidavit submitted by defendant in support of its motion established that the denial of claim had been issued in duplicate (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since the Civil Court found that defendant is otherwise entitled to judgment, and as plaintiff cannot be heard to challenge that finding in light of plaintiff’s failure to oppose defendant’s motion for summary judgment dismissing the complaint, defendant’s motion is granted (see Delta [*2]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 order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 07, 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.), dated October 15, 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court denied defendant’s motion, finding, among other things, that defendant had established its prima facie case and that the “matter shall proceed to trial on the issue of medical necessity.”

In support of its motion, defendant submitted, among other things, affirmed peer review reports and an independent medical examination report, which set forth factual bases and medical rationales for the reviewers’ determinations that there was a lack of medical necessity for the services rendered. In opposition to the motion, plaintiff failed to rebut the conclusions set forth in defendant’s reports. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the [*2]complaint is 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]).

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: December 07, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

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

Per Curiam.

Order (Manuel J. Mendez, J.), entered February 25, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, the evidentiary proof submitted by defendant-insurer was sufficient to establish, prima facie, that its initial and follow-up verification letters were timely and properly mailed to the plaintiff medical provider’s attorney (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]), as authorized by plaintiff’s counsel’s prior correspondence to defendant (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]). It being undisputed that plaintiff failed to respond to these verification requests, defendant established entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).

In opposition, plaintiff’s attorney’s conclusory denial of receipt of the verification letters was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]). We also reject plaintiff’s claim that 11 NYCRR 65-3.6(b) required defendant to issue a delay letter to both plaintiff and its attorney, since that requirement applies only in circumstances, not here present, where information is sought from a party other than the applicant (see Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 30, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), dated September 8, 2011, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ann E. O’Shea, J.), dated September 8, 2011, reversed, without costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

It being undisputed on this record that plaintiff failed to respond to the defendant insurer’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). That defendant requested verification after the 15-day period (11 NYCRR 65-3.5[b]), but before the 30-day claim denial window expired, did not render its requests invalid, but merely reduced the 30-day time period for payment or denial of the claim (see 11 NYCRR 65-3.8[j]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 28, 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 (Barry A. Schwartz, J.), entered May 2, 2011, deemed from a judgment of the same court entered May 26, 2011 (see CPLR 5512 [a]). The judgment, entered pursuant to the May 2, 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 $3,236.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 2, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered May 2, 2011 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s appeal is deemed to be from the judgment entered pursuant to the order (see CPLR 5512 [a]).

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s [*2]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 demonstrated that it had not received all of the verification requested, and plaintiff did not demonstrate that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; 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]), and plaintiff’s action is premature.

Accordingly, the judgment is reversed, the order entered May 2, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 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 (Peter Paul Sweeney, J.), entered January 12, 2011. The order granted defendant’s motion for leave to reargue its prior cross motion for summary judgment dismissing the complaint and, upon reargument, vacated the prior order and granted defendant’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to receive no-fault benefits since plaintiff had failed to respond to its verification requests. By order dated March 4, 2010, the Civil Court denied both motions, and found that plaintiff had “established [its] prima facie case” and that defendant had “established its proper and timely mailing of its denials.” Thereafter, defendant moved for leave to reargue its cross motion for summary judgment. The Civil Court granted leave to reargue and, upon reargument, granted defendant summary judgment dismissing the complaint, finding that since plaintiff had [*2]not responded to defendant’s verification requests, defendant “does not have to pay or deny a claim until it has received all relevant verification [and, therefore,] the within action was prematurely commenced.”

The affidavit submitted by defendant in support of its cross motion established that defendant had timely mailed its requests and follow-up requests for verification (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 demonstrated that it had not received the requested verification, and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; 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]). As a result, defendant established its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 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 (Rudolph E. Greco, Jr., J.), entered November 15, 2010. The order denied plaintiff’s motion to enter a default judgment and deemed defendant’s answer “served and accepted and filed.”

ORDERED that the order is modified by striking the provision thereof that deemed defendant’s answer “served and accepted and filed”; 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 his motion for leave to enter a default judgment and deemed defendant’s answer “served and accepted and filed.”

In support of his motion, plaintiff proffered an attorney-verified complaint and an affirmation by his attorney, neither of which is sufficient to satisfy the requirements of CPLR 3215 (f). Consequently, plaintiff did not establish his entitlement to the entry of a default judgment (see Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; All Mental Care Medicine, P.C. v Allstate Ins. Co., 15 Misc 3d 129[A], 2007 NY Slip Op 50612[U] [App [*2]Term, 2d & 11th Jud Dists 2007]). However, the Civil Court erred in deeming defendant’s answer “served and accepted and filed,” as defendant had failed to demonstrate its entitlement to such relief by showing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Thus, that portion of the order must be stricken.

Accordingly, the order is modified by striking so much of the order as deemed defendant’s answer “served and accepted and filed,” and, as so modified, is affirmed.

Rios, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2012