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 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 Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, 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 Crossland 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]) the IME scheduling letters. Defendant also submitted an affidavit by its examining chiropractor/acupuncturist, who stated that plaintiff’s [*2]assignor had failed to appear for the scheduled IMEs. In addition, an affidavit executed by defendant’s litigation examiner demonstrated that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) the claims at issue based upon the failure of plaintiff’s assignor to appear for the IMEs. 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]). In opposition to the cross motion, plaintiff only submitted an affirmation of counsel, which failed to raise a triable issue of fact. Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 126[A], 2011 NY Slip Op 52279[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In light of the foregoing, we reach no other issue.

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: August 24, 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 July 16, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered October 4, 2010 dismissing the complaint (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered July 16, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as 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 5512 [a]).

Defendant admits that it received plaintiff’s claims for the sums of $865 and $1,737 on January 28, 2008 and February 6, 2008, respectively, and it is undisputed that the claims were not [*2]paid or denied within 30 days of their receipt. The letters sent by defendant to plaintiff after the receipt of the claims informed plaintiff that defendant was investigating the claims and was in the process of obtaining verification, which included examinations under oath. It is well settled that an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate that the claims had been timely denied and, therefore, defendant has not established that its defense of lack of medical necessity is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]). Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 23, 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 (Joseph Esposito, J.), entered March 29, 2010, deemed from a judgment of the same court entered October 8, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the March 29, 2010 order granting defendant’s motion to dismiss the complaints in consolidated actions, dismissed the complaints.

ORDERED that the judgment is reversed, without costs, the order granting defendant’s motion to dismiss the complaints is vacated, defendant’s motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Plaintiffs, who had provided health care services to the same assignor for injuries arising out of the same accident, commenced separate actions to recover assigned first-party no-fault benefits. The actions were consolidated. At the commencement of a nonjury trial, defendant moved to dismiss the complaints based on the doctrine of collateral estoppel, arguing that, at a prior arbitration proceeding involving defendant and a third provider who had provided health care services to the same assignor for injuries arising out of the same accident, the arbitrator had [*2]found that the third provider had failed to establish a timely notice of claim within 90 days of the loss, as required under former Insurance Department Regulations (11 NYCRR) § 65.11 (m) (2) (now 30 days, see Insurance Department Regulations [11 NYCRR] § 65-1.1). This determination, defendant argued, barred relitigation of the issue in the Civil Court, requiring the complaints’ dismissal. The Civil Court granted the motion. We reverse.

The doctrine of collateral estoppel applies only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was either a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, the order granting defendant’s motion to dismiss the complaints is vacated, defendant’s motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 23, 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 (Leslie J. Purificacion, J.), entered August 13, 2010. 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 denying defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. In both the Civil Court and on appeal, plaintiff has conceded the timeliness of defendant’s denials; accordingly, the only issue on appeal is whether the services provided were medically necessary.

In support of its motion, defendant submitted two affirmed peer review reports which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. However, in opposition, plaintiff submitted an affidavit from a doctor which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 23, 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 November 13, 2009. The order, insofar as appealed from, granted defendant’s motion to vacate a notice of trial and to compel plaintiff to respond to defendant’s discovery demands, and denied, as premature, 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 Civil Court as granted defendant’s motion to vacate a notice of trial and to compel plaintiff to respond to defendant’s outstanding discovery demands, and denied, as premature, plaintiff’s motion for summary judgment.

It is uncontroverted that plaintiff filed a notice of trial and certificate of readiness stating that all discovery had been completed even though plaintiff had failed to, among other things, provide responses to defendant’s demand for discovery and inspection. Consequently, defendant’s timely motion to vacate the notice of trial (see CPLR 2103 [b], [c]; Uniform Rules of the NY City Civ Ct [22 NYCRR] § 208.17 [c]), was properly granted (see Savino v Lewittes, [*2]160 AD2d 176 [1990]; Queens Chiropractic Mgt, P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Moreover, the Civil Court properly compelled plaintiff to provide responses to defendant’s outstanding discovery demands. We note that plaintiff was required, but failed, to challenge the propriety of defendant’s demand for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff is obligated to produce the information sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; 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]). Inasmuch as plaintiff did not argue that defendant’s discovery demands were palpably improper or privileged, it is required to produce all of the information sought therein.

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

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 23, 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 October 23, 2009, deemed from a judgment of the same court entered January 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 23, 2009 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 $4,229.23.

ORDERED that the judgment is reversed, without costs, the order entered October 23, 2009 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 October 23, 2009 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]

In support of its cross motion, defendant submitted an affidavit by the president of Media Referral, Inc., an independent medical review service retained by defendant to schedule independent medical examinations (IMEs) of plaintiff’s assignor. The affidavit established that Media Referral, Inc. had timely mailed the IME scheduling letters (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 from the chiropractor/ acupuncturist who was to perform the IMEs which established 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, an affidavit executed by defendant’s claims examiner demonstrated that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) plaintiff’s claim on the ground that plaintiff’s assignor had failed to appear at the scheduled IMEs. As a result, defendant was entitled to summary judgment dismissing the complaint (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, the order entered October 23, 2009 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., Weston and Rios, JJ., concur.
Decision Date: August 23, 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 (Wavny Toussaint, J.), entered November 18, 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.

As argued by plaintiff in opposition to defendant’s motion for summary judgment, the affidavit of defendant’s claims representative did not constitute evidence in admissible form (see Real Property Law § 299-a [1]). As a result, defendant’s motion papers failed to establish that defendant’s denial of claim form was timely and that defendant’s proffered defense that plaintiff’s assignor had misrepresented her residence in connection with the issuance of the subject insurance policy, was not precluded (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly [*2]denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 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 (Kenneth P. Sherman, J.), entered November 23, 2009. 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 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.

The affidavit of defendant’s litigation supervisor 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 initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the 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 and plaintiff’s action is premature (see Insurance Department Regulations [*2][11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 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 May 12, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint and awarded motion costs to plaintiff.

As the affidavit of plaintiff’s treating chiropractor demonstrated the existence of a triable issue of fact as to the medical necessity of the services at issue, we find no basis to disturb so much of the order as denied defendant’s motion for summary judgment (see Ozone Park Chiropractic v Clarendon Natl. Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51453[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). We further find that the award of motion costs to plaintiff was not an improper exercise of discretion (CPLR 8106; CCA 1903; see Babikian v [*2]Nikki Midtown, LLC, 60 AD3d 470 [2009]; Greenspan v Rockefeller Ctr. Mgt. Corp., 268 AD2d 236 [2000]).

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

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 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 November 5, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its cross motion failed to establish that defendant had timely denied the claims 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]). Thus, the Civil Court properly denied defendant’s cross motion, as defendant failed to demonstrate that it was not precluded from raising its proffered defense of lack of medical necessity.

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

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 23, 2012