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 August 17, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered September 13, 2010 awarding plaintiff the principal sum of $3,328.90 (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 upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was [*2]subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by plaintiff’s billing supervisor was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment upon its first through fifth causes of action (see Westchester Med. Ctr., 78 AD3d 1168).

Defendant’s cross motion for summary judgment was properly denied. Defendant failed to establish that the initial verification and follow-up verification requests were timely 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 & 11th Jud Dists 2007]). Since defendant did not prove that the 30-day claim determination period was tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear at an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 27, 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 September 8, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

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

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim [*2]forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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]). Since 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 [2006]), the order is affirmed.

We note that plaintiff’s remaining contention on appeal, to the effect that defendant failed to establish plaintiff’s failure to appear at the EUOs, is not properly before this court since it is raised for the first time in plaintiff’s reply brief on appeal. In
any event, plaintiff conceded in its papers submitted in opposition to defendant’s motion that plaintiff’s nonattendance was “not in dispute.”
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), dated March 30, 2011, as granted defendant’s motion to strike the notice of trial and compel discovery.

Per Curiam.

Order (Jose A. Padilla, J.), dated March 30, 2011, insofar as appealed from, reversed, with $10 costs, and motion denied.

The defendant insurer’s motion to strike the notice of trial and compel discovery should have been denied. Insofar as defendant sought discovery pertaining to its affirmative defense that another insurance carrier was primarily liable, the information was immaterial and, in result, the demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff’s no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., 81 AD3d 541 [2011]). Nor has defendant set forth any case-specific allegations in support of its defense that plaintiff was fraudulently incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC, 54 AD3d 738 [2008]). Defendant “will not be allowed to use pretrial discovery as a fishing expedition when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions” (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 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 (Ben R. Barbato, J.), entered October 3, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered October 3, 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) and examinations under oath (EUOs) 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]; 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, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 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 (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