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 March 22, 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, without 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 District Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit of its claims examiner, which demonstrated that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]) its denial of claim forms, which denied the claims on the ground of lack of medical necessity. The affirmed reports of defendant’s peer reviewer set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided to plaintiff’s assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]). In opposition to defendant’s cross motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud [*2]Dists 2010]; 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.

Iannacci, J.P., Molia and LaCava, JJ., concur.
Decision Date: October 11, 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 January 15, 2010. 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 Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affidavit by the owner of the company retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with that company’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 who had been retained to perform the IMEs which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant established that the denial of claim forms, which denied the claims at issue based upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

Rios, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: October 05, 2012

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 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 18, 2011, modified to the extent of granting, upon a search of the record, plaintiff summary judgment on its first cause of action in the principal sum of $3,126.28; as modified, order affirmed, without costs.

Inasmuch as the record conclusively establishes that the defendant insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30-day period, it is precluded from asserting the defense that the fees charged were excessive (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [211]). Although plaintiff did not cross-move for summary judgment, we search the record and grant it summary judgment in the principal amount demanded in the first cause of action (see 3212[b]), since defendant’s payment on the claim is overdue and defendant has not raised any other defenses.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 03, 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 (Kathryn E. Freed, J.), entered December 4, 2009, deemed from a judgment of the same court entered January 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,949.

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion 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 which granted plaintiff’s motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment established that defendant had timely denied the claim for $2,199 for supplies provided to Jose Cayetano on the ground of lack of medical necessity (see St. Vincent’s Hosp. of [*2]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]). Moreover, defendant annexed to its opposition papers an affirmed peer review report which was sufficient to demonstrate that the branch of plaintiff’s motion seeking summary judgment on its $2,199 claim should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

As to plaintiff’s claim for $1,750 for supplies provided to Argenis Plata-Gil, the denial submitted by defendant in opposition to plaintiff’s motion showed that defendant received the claim on January 29, 2007, but did not deny the claim until October 1, 2007, more than 30 days after the claim had been received (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Defendant failed to demonstrate proper tolling of this claim. Accordingly, defendant did not establish that its denial was timely and, thus, that it is not precluded from raising its proffered defenses as to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant’s remaining contention lacks merit.

Accordingly, the judgment is reversed, so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on its claim for $2,199 for supplies provided to Jose Cayetano is vacated, and that branch of plaintiff’s motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: September 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, Kings County (Johnny Lee Baynes, J.), entered October 8, 2010, deemed from a judgment of the same court entered November 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 8, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form 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]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). An appearance at an EUO is a condition precedent to [*2]an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As plaintiff’s remaining contention lacks merit, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 19, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered on or about May 10, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $1,277.64.

Per Curiam.

Judgment (Anil C. Singh, J.), entered on or about May 10, 2010, reversed, with $25 costs, and judgment awarded in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

It is well settled that the 30-day period within which an insurer must pay or deny a claim for first-party no-fault benefits is tolled until it receives a response to properly issued verification requests (see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). Here, the defendant insurer established at trial that it timely and properly mailed its initial and follow-up verification requests to the plaintiff medical provider’s attorney, 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]), and that plaintiff failed to respond. In the absence of any countervailing evidence from plaintiff, the clear and consistent testimony of defendant’s litigation examiner as to the substance of plaintiff’s counsel’s letter of representation and defendant’s standard office mailing procedure was sufficient to establish proper mailing of the verification requests and to create an as yet unrebutted presumption of receipt, and this despite the absence from the record of counsel’s representation letter.

We note plaintiff’s failure to file a respondent’s brief on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 19, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, September 19, 2012

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**37 Misc 3d at 91} OPINION OF THE COURT

Memorandum.

Ordered that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action are denied; as so modified, the order is affirmed, without costs.{**37 Misc 3d at 92}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions regarding “treatment” and plaintiff’s “billing practices.” In opposition to plaintiff’s motion, defendant proffered the defense that Drs. Mayard and Berardi had failed to appear for examinations under oath (EUOs). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to raise a triable issue of fact in opposition to plaintiff’s motion for summary judgment because it had violated Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) by [*2]scheduling the EUOs outside the county in which plaintiff is located, and that defendant had “failed to establish a wilful noncompliance with the EUO request.”

Since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto. Furthermore, we find that the defenses upon which defendant bases its request for the depositions of Dr. Mayard and Dr. Berardi, regarding “treatment” and plaintiff’s “billing practices,” are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Accordingly, defendant is not entitled to the denial of plaintiff’s motion pursuant to CPLR 3212 (f) or to have its cross motion to compel the depositions granted (see ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71, 73 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s motion for summary judgment, we find that the branches of the motion seeking summary judgment on the first two causes of action were properly granted. Defendant admits that it received plaintiff’s claims comprising those causes of action on December 26, 2006 and December 29, 2006, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. Nor does defendant claim that the EUOs of Drs. Mayard and Berardi were requested, or pending, during that time. We note that defendant’s January 15, 2007 letter purporting to delay payment of the claims is insufficient to toll the 30-day statutory time period{**37 Misc 3d at 93} within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that these two claims had been timely denied and therefore it has not established that its defense, that plaintiff failed to comply with a condition precedent to coverage, is not precluded as to these two causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

However, defendant did raise a triable issue of fact with respect to the third through ninth causes of action by demonstrating that the time to pay or deny the claims comprising those causes of action had been tolled by the timely issuance of EUO scheduling letters, that the doctors had failed to appear for either of two properly scheduled EUOs, and that the claims had been timely denied on April 10, 2007 (see ARCO Med. N.Y., P.C., 2011 NY Slip Op 52382[U]).

We note that there is no merit to the reasons given by the Civil Court in finding that defendant had not raised a triable issue of fact in response to plaintiff’s motion for summary judgment. First, there is nothing in the no-fault regulations prohibiting an insurer from scheduling an EUO outside the county in which the applicant is located (cf. CPLR 3110 [regarding where a deposition shall be taken]). Insurance Department Regulations (11 NYCRR) § 65-3.5 (e) requires only that “[a]ll examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant,” and the Civil Court did not make a finding that the location chosen for the subject EUOs was not reasonably convenient to the applicant. Furthermore, appearance at an EUO is a [*3]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]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), and there is no requirement that defendant establish willful noncompliance with an EUO request.

In light of the foregoing, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the third through ninth causes of action 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 (Reginald A. Boddie, J.), entered May 18, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment as to its claims for services rendered from June 28, 2006 to September 26, 2006 and billed under procedure code 97810, and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those claims. The appeal is deemed to be from so much of a judgment of the same court entered September 21, 2010 as dismissed so much of the complaint as sought to recover for those claims (see CPLR 5501 [c]).

ORDERED that the judgment, insofar as appealed from, is affirmed, without 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. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment as to its claims for services rendered from June 28, 2006 to September 26, 2006 and billed under procedure code 97810, and granted the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for those claims. The appeal is deemed to be from so much of a judgment of the same court entered September 21, 2010 as dismissed the [*2]complaint insofar as it sought to recover for those claims (see CPLR 5501 [c]).

Contrary to plaintiff’s arguments on appeal, defendant demonstrated that it had fully paid plaintiff for the acupuncture services at issue in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the judgment, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 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 (Margaret A. Pui Yee Chan, J.), entered January 12, 2011. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order of the Civil Court as denied their motion for summary judgment.

Upon a review of the record, we find that the affidavit in support of plaintiffs’ motion failed to establish that the bills at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law. Thus, plaintiffs failed to demonstrate their prima facie entitlement to summary judgment (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d [*2]1168 [2010]).

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 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 (Sylvia G. Ash, J.), dated April 25, 2007. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. In opposition to plaintiff’s motion, defendant submitted an affidavit by its claims division employee which sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The claims were denied on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. An affidavit by another of defendant’s claims division employees established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which [*2]plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 13, 2012