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

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 November 17, 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.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that there was a lack of medical necessity for the services at issue. In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently 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 Term, 2d, 11th & 13th Jud Dists 2010]). In view of the existence of a triable issue of fact as to the medical necessity of the services in question, [*2]defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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 (Pamela L. Fisher, J.), entered January 18, 2011. 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 reversed, without costs, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding for all purposes in the action that, among other things, defendant had timely denied the claims at issue, and stating that the only issues for trial were defendant’s defenses that plaintiff’s assignor had failed to appear for an independent medical examination (IME) and that certain services billed for were not medically necessary. Defendant appeals, arguing that its cross motion for summary judgment dismissing the complaint should have been granted.

In support of its cross motion, defendant submitted an affidavit by the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, [*2]which affidavit sufficiently established that the IME requests had been timely mailed in accordance with Media Referral, Inc.’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 from the chiropractor who was 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]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s bills dated August 1, 2008 and August 22, 2008 based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising that issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]).

Defendant also demonstrated that it had properly denied the bill dated July 2, 2008 for lack of medical necessity. Defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services rendered (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]).

As plaintiff failed to raise a triable issue of fact with respect to either of the proffered defenses, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 07, 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 (Fred J. Hirsh, J.), dated December 7, 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 District Court denying defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim form, which denied plaintiff’s claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U] [App Term, 9th & 10th Jud Dists 2012]; All County, LLC v Unitrin Advantage Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50621[U] [App Term, 9th & 10th Jud Dists 2011]). In addition, annexed to defendant’s motion papers was an affirmed independent medical examination report that set forth a sufficient [*2]factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services provided (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]), which shifted the burden to plaintiff to rebut defendant’s prima facie showing. In opposition to the motion, plaintiff failed to submit an affidavit or affirmation from a medical professional (see Total Equip., LLC v Praetorian Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists 2012]; Total Equip., LLC, 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U]).

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

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: August 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 (Margaret A. Pui Yee Chan, J.), entered December 17, 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 its motion for summary judgment dismissing the complaint.

The affidavits submitted by defendant established that the examination under oath (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]). Defendant also submitted an affirmation by an attorney who was at the time of the scheduled EUOs, the [*2]“managing no-fault attorney” of the law firm retained by defendant to conduct the assignor’s EUO, which set forth the law firm’s practices and procedures in establishing appearances at EUOs and which demonstrated that the assignor had failed to appear at either of the duly scheduled EUOs (see 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]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Weston, J.P., Pesce, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order in the following memorandum:

In support of its motion for summary judgment dismissing the complaint, defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Defendant’s affiant stated:

“[M]y former firm would send an employee of said law firm to the deposition center upon which the EUO was supposed to occur for the purpose of confirming that the deponent was not present at the said deposition center. The attorney would personally confirm this fact with the former law firm’s office and a notation will be made in the computer system.”

Defendant’s affiant, who had no personal knowledge that a notation had been made in the computer system, made conclusory allegations regarding defendant’s office practices and did not establish, as a matter of law, that defendant had followed those office practices (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Moreover, proof of the contents of a writing require the production of the document (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639 [1994]).

Contrary to the finding of the majority, defendant failed to meet its burden by proof in admissible form that the assignor had failed to appear for the EUOs (see CPLR 4518 [a]).

Accordingly, defendant’s motion was properly denied.
Decision Date: August 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 (Alice Fisher Rubin, J.), entered July 22, 2010, deemed from a judgment of the same court entered August 16, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 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 $1,517.41.

ORDERED that the judgment is reversed, without costs, so much of the July 22, 2010 order as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 is vacated, plaintiff’s motion for summary judgment is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 are 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. A judgment [*2]was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff sought to recover upon six claim forms. As to all of the forms except for a claim form dated June 4, 2007, plaintiff failed to establish its prima facie entitlement to summary judgment, since it did not prove either that defendant had failed to pay or deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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]). As to the June 4, 2007 claim, plaintiff did establish its prima facie entitlement to summary judgment; however, we find that defendant’s proof was sufficient to raise a triable issue of fact as to whether defendant had timely and properly denied the claim on the ground that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see e.g. East Coast Acupuncture, P.C. v New York Cent. Mut. Ins., 18 Misc 3d 139[A], 2008 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2008]). Thus, plaintiff’s motion for summary judgment should have been denied in its entirety.

Defendant established that it had timely denied (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]) plaintiff’s claims dated July 19, 2007, August 29, 2007, and October 11, 2007, respectively, on the ground of lack of medical necessity. In addition, defendant submitted an affirmed independent medical examination report which demonstrated a prima facie showing of lack of medical necessity for these services, which proof was not rebutted by plaintiff. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for these three claims should have been granted (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]).

The branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the three remaining claims were properly denied, as defendant failed to conclusively establish its stated defenses that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy
Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that there was an unmet personal injury protection deductible.

Accordingly, the judgment is reversed, so much of the July 22, 2010 order as granted plaintiff’s motion for summary judgment and denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 is vacated, plaintiff’s motion for summary judgment is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for claims dated July 19, 2007, August 29, 2007, and October 11, 2007 are granted.

Pesce, P.J., Rios and Aliotta, JJ., concur. [*3]
Decision Date: August 07, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jules L. Spodek, J.H.O.), entered January 14, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,592.06.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial was the medical necessity of the services provided, and agreed that defendant had the burden of going forward as a result of the stipulation. Defense counsel sought to offer into evidence the deposition transcript of its medical doctor, pursuant to CPLR 3117 (a) (4). The Civil Court refused to permit defendant to do so, and directed that judgment be entered in favor of plaintiff. A judgment was subsequently entered, from which defendant appeals. CPLR 3117 (a) (4) provides that “the deposition of a person authorized to practice medicine may be used by any party without the necessity of showing unavailability or special circumstances, subject to the right of any party to move pursuant to section 3103 to prevent abuse.” There is nothing in the trial record to indicate that plaintiff [*2]moved for a protective order pursuant to CPLR 3103.

While a trial court’s exercise of discretion under CPLR 3117 is reviewable only for “clear abuse” (see Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]), “in exercising its discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to present his case” (id. at 644). In our view, under the circumstances presented, the Civil Court abused its discretion in sua sponte refusing to permit defendant to offer into evidence the deposition testimony of its doctor (see Goldblatt v Avis Rent A Car Sys., 223 AD2d 670 [1996]; Long Is. Anesthesiology Serv. v Solis 114 Misc 2d 561 [Civ Ct, Kings County 1982]). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial limited to the issue of medical necessity.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 06, 2012