SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), entered January 4, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), entered January 4, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s claim for assigned first-party no-fault benefits is warranted on the full record now before us, which shows that the defendant insurer timely and properly mailed its initial and follow-up verification demands to the plaintiff medical provider at the street address listed in its claim form. Indeed, plaintiff, in opposing summary judgment, did not meaningfully challenge the procedures followed by defendant in mailing the verification demands or deny its receipt of defendant’s demands; instead, plaintiff maintained that defendant’s verification demands were not received by its third-party biller, an entity known as Spendan Service Corp., which apparently conducts its business from a designated suite at the same street address from which plaintiff operates its medical facility. However, the conclusory denial of receipt of the verification demands advanced by plaintiff’s third-party biller was insufficient to raise a triable issue as to the efficacy of defendant’s mailings. Even assuming, arguendo, that the medical biller can properly be viewed, on this record, as plaintiff’s authorized representative for the purposes of receiving and responding to further verification requests (see 11 NYCRR 65-3.5[a],[c]; see and compare St. Vincent’s Hosp. v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]), plaintiff failed to make any showing that the verification demands were not received by the billing entity due to the absence from the mailings of its (the biller’s) suite number or otherwise (see Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 12, 2010, reversed, with $10 costs, motion granted and complaint dismissed. (See Darlington Med. Diagnostic, P.C. v Praetorian Ins. Co., appeal numbered 11-265, decided herewith.) The Clerk is directed to enter judgment accordingly.

In granting the defendant-insurer’s motion for summary judgment dismissing the within first-party no-fault action, we note that plaintiff’s third-party biller acknowledged receipt of defendant’s follow-up verification demand, but failed to explain why it took no responsive action. Moreover, contrary to the view expressed below and as plaintiff now expressly acknowledges, plaintiff neither claimed nor showed that it responded in any way to defendant’s properly issued verification demands.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 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 14, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 14, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s no-fault first-party benefit claim was warranted on the full record developed below. “The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Vela v Tower Ins. Co. of NY, 83 AD3d 1050, 1051 [2011], quoting Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [2004]). The mere intention to reside at certain premises is not sufficient (see Vela v Tower Ins. Co. of NY, 83 AD3d at 1051).

Here, defendant’s moving submission, including the properly considered (see Zalot v Zieba, 81 AD3d 935, 936 [2011], lv denied 17 NY3d 703 [2011]) transcripts of the examinations under oath (“EUO”) of plaintiff’s assignor and her husband, the named insured, established prima facie that the insured fraudulently procured insurance coverage by falsely listing a Pearl River, New York house owned by his father as his residence on the insurance application, when the insured and his wife (the assignor) actually resided, with their infant child, in an apartment in Cliffside Park, New Jersey, an address listed by the couple on their tax returns. In opposition, plaintiff, as assignee “stand[ing] in the shoes” of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), failed to raise a triable issue of fact. Plaintiff’s reliance on a snippet of the insured’s EUO testimony, in which he stated conclusorily that he and his family merely lived “part-time” in the Cliffside Park apartment, was plainly insufficient to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 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 (Peter Paul Sweeney, J.), entered October 7, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124.

ORDERED that 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 plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel discovery pursuant to CPLR 3124. Contrary to plaintiff’s argument on appeal, defendant properly substantiated its allegations of fraudulent incorporation so as to warrant disclosure (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42 [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to compel disclosure. Plaintiff’s remaining contentions on appeal lack merit. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 06, 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 (Carmen R. Velasquez, J.), entered March 4, 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 appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

The affidavits submitted by defendant in support of its 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 [*2]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, thus, plaintiff’s action is premature.

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 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.), entered November 22, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 22, 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 $3,071.33.

ORDERED that the judgment is reversed, without costs, the order entered November 22, 2010 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 November 22, 2010 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]).

Contrary to the determination of the Civil Court, the affidavit of defendant’s employee [*2]was sufficient to establish that defendant had timely mailed the denial of claim forms. The affidavit established that the denials had been mailed from defendant’s Woodbury office and described defendant’s standard mailing practice and procedure for that office (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Defendant denied the claims for services rendered from March 31, 2009 to September 24, 2009 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. Defendant demonstrated that it had fully paid plaintiff for these services in accordance with the workers’ compensation fee
schedule. Accordingly, the branches of defendant’s cross motion for summary judgment seeking to dismiss so much of the complaint as sought to recover for these dates of service should have been granted (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant denied the claims for services rendered on September 25, 2009 based upon an independent medical examination (IME). In support of its cross motion for summary judgment, defendant submitted the sworn report of the licensed acupuncturist who had conducted the IME of plaintiff’s assignor. The report set forth a factual basis and medical rationale for the examiner’s determination that there was no need for further acupuncture treatment. In opposition, plaintiff submitted an affidavit from the treating acupuncturist which, while referring to the IME report, offered only a conclusory rebuttal to the conclusions set forth therein (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]). Accordingly, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on September 25, 2009 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 judgment is reversed, the order entered November 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 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 October 27, 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, 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 and plaintiff cross-moved for summary judgment. The Civil Court denied both the motion and the cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that plaintiff’s assignor had failed to appear for properly scheduled examinations under oath, and that the sole issue for trial was the timeliness of defendant’s denial of the claim. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

Contrary to the Civil Court’s finding, the affidavit executed by defendant’s litigation examiner demonstrated that defendant’s denial of claim form had been timely mailed (see St. [*2]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]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (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]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 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 (Reginald A. Boddie, J.), entered January 4, 2011, deemed from a judgment of the same court entered January 31, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 4, 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 $2,598.39.

ORDERED that the judgment is reversed, without costs, the order entered January 4, 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 January 4, 2011 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]). [*2]

Contrary to the determination of the Civil Court, the affidavit by defendant’s employee was sufficient to establish that defendant had timely mailed the denial of claim forms. The affidavit established that the denials had been mailed from defendant’s Woodbury office and described defendant’s standard mailing practice and procedure for that office (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; 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 affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and a medical rationale for each doctor’s determination that there was a lack of medical necessity for the services rendered. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (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, the order entered January 4, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 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 June 15, 2010, deemed from a judgment of the same court entered November 3, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 15, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted 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]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant 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 [*2]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. In addition, defendant submitted three sworn peer review reports which set forth a factual basis and a medical rationale for each doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing was not rebutted by plaintiff.

Plaintiff asserts that the peer review reports contained electronic stamped facsimiles of the peer reviewers’ signatures and, as a result, the reports are inadmissible. However, the record indicates that the signatures were placed on the reports by the doctors who had performed the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Plaintiff’s remaining contentions on appeal lack merit (see e.g. 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]).

As plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly 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]), the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 05, 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 (Devin P. Cohen, J.), entered June 1, 2011. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The court found that defendant had demonstrated that plaintiff’s assignor had failed to appear for two duly scheduled examinations under oath (EUOs).

Plaintiff argues on appeal, in conclusory fashion, that defendant’s motion should have been denied because defendant did not submit any evidence that plaintiff’s assignor had failed to appear for an EUO on December 1, 2009. However, plaintiff does not dispute that defendant submitted sufficient proof that plaintiff’s assignor had failed to appear for EUOs on January 28, 2010 and March 2, 2010, or that those EUOs had been timely scheduled after defendant’s receipt of plaintiff’s claim forms on December 21, 2009. As plaintiff’s remaining contentions lack merit (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Leica [*2]Supply, Inc. v Encompass Indem. Co., 35 Misc 3d 142[A], 2012 NY Slip Op 50890[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012