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 (Ingrid Joseph, J.), entered August 3, 2010. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered between July 17, 2007 and October 3, 2007, and denied plaintiff’s cross motion for summary judgment with respect to those claims.

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 moved for summary judgment dismissing the complaint and plaintiff cross- moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for services rendered between July 17, 2007 and October 3, 2007, which claims had been denied on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment with respect to those claims.

Contrary to plaintiff’s contentions, the affidavits submitted by defendant were sufficient to establish that the EUO scheduling letters and denial of claim forms had been timely and [*2]properly 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]). Plaintiff’s remaining contentions are similarly without merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 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, Queens County (Jodi Orlow, J.), entered July 22, 2010. The judgment, after a nonjury trial, implicitly awarded plaintiff the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action, for a total award to plaintiff of the principal sum of $1,785.79.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint sought to recover the principal sum of $686.44 upon a first cause of action and the principal sum of $1,409.24 upon the second cause of action. Pursuant to a pretrial order, the trial in this action was limited to the issue of the medical necessity of the billed-for supplies. At the nonjury trial, defendant’s expert witness was allowed to testify as to plaintiff’s first cause of action, but was [*2]precluded from testifying as to plaintiff’s second cause of action, on the ground that the witness was not the doctor who had prepared the peer review upon which defendant’s denial of the claim underlying the second cause of action had been based. After trial, plaintiff was awarded the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action. Defendant appeals.

We reject defendant’s challenge to the Civil Court’s finding as to plaintiff’s first cause of action. “A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U], *1 [App Term, 2d & 11th Jud Dists 2008], quoting Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Although plaintiff did not put on any rebuttal witnesses, plaintiff did cross-examine defendant’s witness, and the Civil Court “was free to assess and reject [the witness’s] uncontradicted expert opinion” (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U], *2 [App Term, 2d & 11th Jud Dists 2006]).

As to plaintiff’s second cause of action, we find that the Civil Court erred in precluding the testimony of defendant’s expert medical witness. While that witness had not prepared the peer review report upon which defendant’s denial of this claim was based, he nevertheless should have been permitted to testify as to his opinion of the lack of medical necessity for the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the peer review report (Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Psychology YM, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). As defendant’s witness should not have been precluded from testifying as to the second cause of action, a new trial is required on this cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 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, Kings County (Robin S. Garson, J.), entered July 2, 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 which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claim 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 motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 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, Kings County (Peter Paul Sweeney, J.), entered January 14, 2010. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, 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.

Defendant’s proffered defense to this action is that it timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). However, defendant failed to establish that the letters scheduling the IMEs had been mailed to plaintiff’s assignor (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 [*2]& 11th Jud Dists 2007]). Thus, defendant did not demonstrate that plaintiff’s assignor had failed to comply with a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should not have been granted.

Plaintiff’s motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied. In view of the foregoing, we need not reach plaintiff’s remaining contentions.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 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, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied the branch of defendant’s motion seeking to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the record establishes that Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of plaintiff, died prior to the commencement of the action (see also Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). As the record does not demonstrate that the commencement of this action was authorized by someone with the authority to do so (see Business Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; Ocean Diagnostic Imaging, P.C., 15 Misc 3d 9; 38 NY Jur 2d, Decedents’ Estates §§ 53, 1510, 1513, 1521, 1532), the order of the Civil Court is reversed and the branch of defendant’s motion seeking to dismiss the complaint is granted (Deutsch v LoPresti, 272 AD2d 506 [2000]; McCormack v County of Westchester, 255 [*2]AD2d 296 [1998]).

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), entered July 15, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), entered July 15, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 2012

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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 8, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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 denied its motion for summary judgment. The court further found that the issues remaining for trial were “whether defendant properly denied and reduced plaintiff’s claims in accordance to [sic] the fee schedule and whether defendant’s denial, without having sought any additional verification regarding the amount of time spent with the patient, was proper according to the regulations.”

The record reflects that plaintiff submitted a claim for six tests utilizing CPT code 97799 and that defendant, upon receiving the claim, unilaterally determined that the appropriate CPT code was 97750. Since CPT code 97750 is a “time based procedure code,” and since defendant [*2]did not have sufficient documentation demonstrating how long it took plaintiff to perform the billed-for services, defendant concluded that it would only pay for one unit of time, i.e., 15 minutes.

We do not pass upon whether defendant may unilaterally determine that plaintiff’s services should be compensated utilizing CPT code 97750 instead of code 97799, since even if defendant were permitted to unilaterally apply a code different from the one applied by plaintiff, defendant’s opposition to plaintiff’s motion was nevertheless insufficient to establish a triable issue of fact. Defendant’s basis for paying only part of the claim, utilizing CPT code 97750, was that in the absence of being notified by plaintiff of the amount of time it had actually taken for the services to be rendered, defendant arbitrarily opted to pay for the minimum amount of time designated therefor, i.e., only one unit of time. Since this determination by defendant is without any factual basis, as defendant never requested verification from plaintiff seeking information regarding the amount of time it had taken plaintiff to perform the services billed for, such a reduction has not been shown to be warranted (see A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]; see generally 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]). In light of the foregoing, defendant did not raise a triable issue of fact in opposition to plaintiff’s motion.

As defendant has not challenged the Civil Court’s finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff’s motion for summary judgment upon the unpaid portion of its claim is granted. Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 11, 2010. 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, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims division employee established that defendant’s denial of claim forms 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]). Moreover, defendant annexed to its cross motion papers affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the billed-for services. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. Plaintiff’s remaining contentions were either not raised in the Civil Court or lack merit. Consequently, defendant is entitled to summary judgment (see Delta [*2]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 order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 25, 2012

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. Danziger, J.), entered November 7, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered November 7, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, an orthopedist’s peer review report, setting forth in some detail a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff’s claim for first-party no-fault benefits lacked medical necessity. Notably, defendant’s peer reviewer emphasized, among other factors, that his review of the assignor’s medical records showed “no findings of instability” or “positive … orthopedic signs” in connection with the assignor’s claimed shoulder injuries and that, although the arthoscopic procedure undertaken by plaintiff related to its assignor’s left shoulder, the assignor’s “chief complaint” at her initial, post-accident consultation involved her right shoulder. Plaintiff’s opposing submission, consisting solely of an attorney’s affirmation together with unsworn, and thus inadmissible medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to withstand summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 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, Queens County (Terrence C. O’Connor, J.), entered October 18, 2010. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action 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 found, among other things, that plaintiff and defendant had established their prima facie cases with respect to the second through fifth causes of action and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied the branch of its cross motion [*2]seeking summary judgment dismissing the second through fifth causes of action.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies provided. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (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 order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 18, 2012