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 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., for examinations before trial and granted plaintiff’s cross motion for summary judgment

ORDERED that the order is reversed, with $30 costs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., for examinations before trial solely with respect to the issue of plaintiff’s billing practices 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 moved to compel plaintiff to produce Richard Berardi, D.O., and Gracia Mayard, M.D., two of plaintiff’s principals, for examinations before trial (EBTs), regarding plaintiff’s “treatment” and “billing practices,” and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied plaintiff’s claims on the ground that Drs. Berardi and Mayard had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that plaintiff had [*2]established its prima facie case and that defendant had failed to establish that its initial and follow-up EUO requests had been timely and properly mailed.

With respect to plaintiff’s cross motion for summary judgment, since defendant raises no issue on appeal with regard to plaintiff’s establishment of its prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). However, in opposition to plaintiff’s motion, defendant established 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]; Arco Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Drs. Berardi and Mayard had failed to appear for the EUOs (see ARCO Med. NY, P.C., 35 Misc 3d 135[A], 2011 NY Slip Op 52384[U]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that the claim had been denied on April 11, 2007 on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up request was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination (see ARCO Med., NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), plaintiff’s cross motion for summary judgment is denied.

With respect to defendant’s motion to compel plaintiff to produce Drs. Berardi and Mayard for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.” However, as defendant’s denial of claim form did not raise any defense based on “treatment,” defendant is precluded from raising that defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Drs. Berardi and Mayard for EBTs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Drs. Berardi and Mayard for EBTs solely with respect to the issue of plaintiff’s billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]).

Accordingly, the order is reversed, defendant’s motion to compel is granted to the extent indicated and plaintiff’s cross motion for summary judgment is denied. [*3]

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 October 8, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

The affidavit of defendant’s claims division employee 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 denial of claim forms, which denied the claims on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident. The affidavit further stated that defendant had first learned of the accident when it had received a bill some two months after the accident, thereby [*2]demonstrating the lack of proper notice. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident in a timely manner. Despite being informed by the denial of claim forms that it had the opportunity to “submit[ ] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Plaintiff’s remaining contentions lack merit.

Accordingly, the order is affirmed.

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 10, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 10, 2012, insofar as appealed from, reversed, without costs, defendant’s motion granted in its entirety and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The evidentiary proof submitted by defendant established, prima facie, that this action for assigned first-party no-fault benefits was premature, since it was commenced less than 30 days after plaintiff’s March 11, 2011 service of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007]). In opposition, plaintiff’s assertion that it mailed the claim to defendant in March 2010 was insufficient to raise a triable issue, since the record shows that the March 2010 claim related to services that were rendered on a date different than that set forth in the claim at issue in the case at bar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 15, 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 December 8, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

On appeal, plaintiff challenges the admissibility of the evidence proffered by defendant in support of its motion. For example, plaintiff contends that defendant did not establish that the accident in question occurred in North Carolina, because the police report submitted by defendant was not certified. However, the NF-2 forms submitted by plaintiff’s two assignors both asserted that the accident occurred in North Carolina. Plaintiff’s remaining contentions [*2]equally lack merit. Accordingly, as plaintiff failed to raise any triable issue of fact in response to defendant’s motion, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 25, 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.), entered August 6, 2010. 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 reversed, with $30 costs, 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 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to the finding of the Civil Court, 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 [*2]denied plaintiff’s claims on the ground of lack of medical necessity. Defendant also submitted two sworn peer review reports, each of which set forth the factual basis and medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit by a psychologist which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (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]). Consequently, defendant’s cross motion should have been granted (see 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 is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 25, 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 21, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and found that defendant had issued timely denials of the claims in question.

ORDERED that the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated; as so modified, 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 Civil Court as denied its motion for summary judgment and found that defendant had issued timely denials of the claims in question.

The proof submitted by defendant in opposition to plaintiff’s motion was sufficient to establish a standard office practice and procedure designed to ensure that defendant’s denials had been properly addressed and 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 [*2]Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and we find that defendant established that it had timely denied, on the ground of lack of medical necessity, the claim for $912 for services rendered on November 16, 2007. However, as to the claim for $879.73 for services rendered on October 30, 2007, we find that there is an issue of fact as to whether this claim was timely denied, as there is a significant discrepancy between the date the bill had been sent, as claimed by plaintiff, and the date the bill had been received, as claimed by defendant. Defendant also submitted two affirmed peer review reports, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for all of the services at issue, and which sufficiently rebutted the letter of medical necessity submitted by plaintiff, thereby creating an issue of fact. In view of the foregoing, plaintiff’s motion for summary judgment was properly denied, and we vacate the Civil Court’s finding that the claim for $879.73 was timely denied.

Accordingly, the order, insofar as appealed from, is modified by providing that so much of the order as found that defendant had timely denied the claim for $879.73 for services rendered on October 30, 2007 is vacated, and the order, insofar as appealed from, is otherwise affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: October 25, 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.), entered February 2, 2011. The order denied defendant’s motion to vacate a prior order of the same court entered June 11, 2010 granting plaintiff’s unopposed motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court did not improvidently exercise its discretion in denying defendant’s motion to vacate a prior order entered June 11, 2010 granting plaintiff’s unopposed motion for summary judgment, since defendant failed to demonstrate a reasonable excuse for its failure to submit written opposition to plaintiff’s motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 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 (Richard G. Latin, J.), entered July 23, 2010. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008. The appeal is deemed to be from a judgment of the same court entered November 5, 2010 dismissing that portion of the complaint (see CPLR 5501 [c]).

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 so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $514.08, $385.56, $471.24, and $85.68 for services rendered on April 2, 2008 due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs). A judgment dismissing that portion of the complaint was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s argument on appeal that the assignor was not required to respond to the IME requests because they came from a third party lacks merit, as the scheduling letters ” clearly apprised the assignor’ that they were being sent on defendant’s behalf'” (W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A], 2010 NY Slip Op 51057[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As defendant’s remaining contentions are equally devoid of merit, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 18, 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.), entered April 12, 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 affirmed, with $25 costs.

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 of lack of coverage due to the rescission of the automobile insurance policy in question, arguing that a conflict of law analysis required the application of Connecticut law. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Defendant issued the insurance policy in Connecticut to the insured, who purportedly resided in Connecticut, for a vehicle which was purportedly garaged in Connecticut. The only connection between the policy and New York is that the third-party assignors were injured while riding in the insured’s vehicle in New York. Consequently, we find that Connecticut law is controlling under New York’s conflict of law rules (see Matter of Government Empls. Ins. Co. v Nichols, 8 AD3d 564 [2004]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]).

Although Connecticut law provides for a common law right to retroactively rescind an automobile insurance policy, in the case of Munroe v Great American Ins. Co. (234 Conn 182, 193, 661 A2d 581 [1995]), the Connecticut Supreme Court held that the Connecticut Legislature did not intend that an insurer’s common law right of rescission as to innocent third-party victims, such as involved herein, survive the enactment of the Connecticut automobile insurance statutes. Therefore, any retroactive rescission of the subject insurance policy did not affect the rights of the innocent third-party assignors, and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack on coverage due to the retroactive rescission of the automobile insurance policy was properly denied. Accordingly, as defendant raises no issue with respect to plaintiff’s prima facie showing upon its motion for summary judgment, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 16, 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.), entered August 6, 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Services, P.C. (Crossland), the entity which had scheduled the independent medical examinations (IMEs) involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’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 affirmation by its examining physician, who stated that plaintiff’s assignor had failed to appear for the duly scheduled IMEs, and an affidavit by defendant’s litigation examiner which established that defendant’s denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). As a result, 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]). The affirmation of plaintiff’s counsel and affidavit from plaintiff’s billing manager failed to raise a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 16, 2012