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.), dated October 4, 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.

In support of its motion for summary judgment, defendant submitted an affidavit by an employee of Crossland Medical Review Services, Inc. (Crossland), the entity which scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit established that the IME scheduling letters had been timely mailed in accordance with Crossland’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]). In addition, the affidavit [*2]executed by defendant’s claims examiner demonstrated that its denial of claim form, which denied the claim based upon the failure of plaintiff’s assignor to appear for 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). Defendant also submitted affirmations by its examining physicians stating that plaintiff’s assignor had failed to appear for the scheduled 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]). Inasmuch as plaintiff submitted only an affirmation in opposition from its counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 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, Richmond County (Orlando Marrazzo, Jr., J.), entered February 24, 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 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 its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

As the affirmed peer review report submitted by defendant failed to clearly establish a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (compare 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]), defendant’s motion was properly denied. Accordingly, the order, insofar as appealed from, is affirmed. [*2]

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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 (Johnny Lee Baynes, J.), entered October 7, 2010. The order, insofar as appealed from as limited by the brief, 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 found that defendant and plaintiff had established their prima facie cases and that the sole issue for trial was whether plaintiff’s assignor had failed to appear at scheduled independent medical examinations (IMEs). Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, affidavits from its examining chiropractors, both of whom stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. In opposition to the motion, plaintiff submitted an affirmation from its counsel, which failed to raise a triable issue of fact. [*2]
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]; 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 order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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, Queens County (Maureen A. Healy, J.), entered September 15, 2010. The order denied plaintiff’s motion to, in effect, vacate an order of the same court (Richard G. Latin, J.) entered May 13, 2010, which had dismissed the complaint upon plaintiff’s default in complying with a prior conditional order of the same court (Diane A. Lebedeff, J.) entered September 30, 2009.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Diane A. Lebedeff, J.), by order entered September 30, 2009, granted the branch of a motion by defendant seeking to compel plaintiff to provide responses to defendant’s outstanding discovery demands. The order required plaintiff to produce, among other things, the personal tax returns of its principal owner within 30 days of the date of the order, and provided that plaintiff’s noncompliance would “result in dismissal of plaintiff’s complaint with prejudice by filing an affidavit of noncompliance and settle [sic] order.” Thereafter, defendant served plaintiff with a proposed order with notice of settlement and an affirmation of noncompliance alleging that [*2]plaintiff had failed to produce the aforementioned tax returns. By order entered May 13, 2010, the Civil Court (Richard G. Latin, J.) dismissed the complaint with prejudice. Plaintiff contested neither the affirmation of noncompliance nor the proposed order.

Plaintiff then moved, pursuant to CPLR 5015 (a) (3), to, in effect, vacate the order dismissing the complaint on the ground that defendant had misrepresented plaintiff’s noncompliance with the order entered September 30, 2009. By order entered September 15, 2010, the Civil Court (Maureen A. Healy, J.) denied the motion.

Plaintiff’s contention on appeal, in effect, that defendant did not timely submit the proposed order with notice of settlement for court approval in accordance with Uniform Rules for New York City Civil Court (22 NYCRR) § 208.33 (a) is unpreserved for appellate review because plaintiff failed to raise the issue in the Civil Court (see Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596, 597 [1992]; cf. Mora v Mora, 39 AD3d 829 [2007]).

Furthermore, plaintiff failed to satisfy its burden of establishing the existence of any misrepresentation on the part of defendant because plaintiff did not demonstrate that it had, in fact, produced the personal tax returns of its principal owner in compliance with the order entered September 30, 2009 (see CPLR 5015 [a] [3]; see generally Welz v Welz, 83 AD3d 696, 697 [2011]).

Plaintiff’s remaining contentions are without merit.

Accordingly, the order is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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, Queens County (Terence C. O’Connor, J.), dated October 21, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s 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 moved for summary judgment dismissing the complaint. The Civil Court found, among other things, that defendant had submitted “sufficient evidence to establish its timely and proper denial,” and that “[t]he sole issue remaining for trial” is whether defendant established its defense of failure to appear at an independent
medical examination (IME). Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion for summary judgment, defendant submitted an affidavit by its no-fault litigation examiner, who stated, among other things, that defendant had requested that “National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff’s [*2]assignor.” Defendant did not submit an affidavit by an employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled. Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which managed all of the administrative requirements of Transcion Medical, P.C., who stated, among other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor. In view of the foregoing discrepancy, the Civil Court properly determined that defendant had failed to establish its defense based upon the failure of plaintiff’s assignor to appear at an IME.

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

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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, Queens County (Carmen R. Velasquez, J.), entered September 22, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied defendant’s cross motion for summary judgment dismissing the complaint, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” So much of the appeal as is from the portion of the order granting the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denying the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from a judgment of the same court entered October 18, 2010 awarding plaintiff the principal sum of $1,285.56 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of [*2]action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding; as so modified, the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action, denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action, denied defendant’s cross motion for summary judgment dismissing the complaint in its entirety, and found that “the only triable issues of fact remaining are whether the verifications are still outstanding and whether they are proper.” After plaintiff filed a notice of appeal, a judgment was entered awarding plaintiff the principal sum of $1,285.56 on its first and second causes of action. The appeal from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is deemed to be from the judgment (see CPLR 5501 [c]).

We find that the Civil Court improperly granted plaintiff summary judgment on the first and second causes of action. While the court accepted defendant’s allegation that the medical equipment at issue in this case was not delivered directly to plaintiff’s assignor, plaintiff submitted an affidavit which squarely contradicts that allegation. Since the key to summary judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]), neither party should have been granted summary judgment on the first and second causes of action. Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action is vacated, and the branches of plaintiff’s motion seeking summary judgment on the first and second causes of action are denied.

The Civil Court correctly denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action, as defendant proffered only conclusory allegations that plaintiff had submitted insufficient responses (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). However, there is no basis in the record for the Civil Court’s finding of the existence of a triable issue of fact as to whether defendant’s verification requests were proper. Accordingly, the order, insofar as reviewed on direct appeal, is modified by providing that the only triable issue of fact remaining as to the third cause of action is whether verification is still outstanding.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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 (Wavny Toussaint, J.), entered November 18, 2009. The order, insofar as appealed from as limited by the brief, 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 the motion and cross motion, and found that the sole issue for trial was the medical necessity of the services provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. The [*2]affidavit by plaintiff’s health care practitioner submitted in response failed to meaningfully rebut the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is 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]).

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

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 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 June 7, 2010. The order, insofar as appealed from as limited by the brief, implicitly 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, defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff was not entitled to recover no-fault benefits because the insurance policy had been cancelled prior to the accident. By order entered June 7, 2010, insofar as appealed from as limited by the brief, the Civil Court implicitly denied the cross motion.

On a motion by a defendant insurance company for summary judgment based on a claim that the insurance policy had been cancelled, the initial burden is on the insurer to demonstrate a valid cancellation of the insurance policy. Once the insurance company makes a prima facie showing that it had timely and validly cancelled the policy in compliance with Vehicle and [*2]Traffic Law § 313, the burden shifts to the party claiming coverage to establish noncompliance with the statutory requirements as to form and procedure (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v Roth, 56 AD3d 1244, 1245 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d 434, 435 [1994]). The papers submitted in support of defendant’s cross motion were sufficient to demonstrate, prima facie, that defendant had timely and validly cancelled the insurance policy in question (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; GEICO Indem. v Roth, 56 AD3d at 1245; Montefiore Med. Ctr. v Liberty Mut. Ins. Co., 31 AD3d 724, 725 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Cherian, 202 AD2d at 435), thereby shifting the burden to plaintiff. In opposition to the motion, plaintiff did not raise a triable issue of fact as to the validity of the cancellation (see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; Tobias v Liberty Mut. Fire Ins. Co., 78 AD3d 928 [2010]).

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

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 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, Queens County (Cheree A. Buggs, J.), entered September 14, 2010, deemed from a judgment of the same court entered September 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 14, 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 $1,310.94.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order 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]).

The record establishes that, on December 2, 2008, defendant requested that plaintiff’s assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff’s assignor failed to appear for the EUO. However, defendant did not mail a second request until February 12, 2009. As this follow-up request was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), and, as a result, defendant’s denial of plaintiff’s claim was untimely. Consequently, the Civil Court properly denied defendant’s cross motion for summary judgment, which was based upon the defense that plaintiff’s assignor had failed to appear for an EUO. Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In light of the foregoing, we need not reach the parties’ remaining contentions.

Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 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 (Lisa S. Ottley, J.), entered April 27, 2010. The order, insofar as appealed from as limited by the brief, granted 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 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.

The affidavit executed by defendant’s claims examiner was sufficient to establish that defendant’s NF-10 forms, 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff argues on appeal, as it did in the [*2]Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

As defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012