SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated January 19, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff’s motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

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

LaCava, J.P., Molia and Iannacci, JJ., concur. [*2]
Decision Date: April 02, 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 (Jodi Orlow, J.), entered October 14, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 14, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a hearing in accordance with the decision herein and a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting 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]).

Defendant opposed plaintiff’s motion and cross-moved, based upon six “affirmed” peer [*2]review reports, for summary judgment dismissing the complaint on the ground of lack of medical necessity, for the supplies provided to plaintiff’s assignor. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from its attorney, who argued, among other things, that the doctor’s signatures on the peer review reports were stamped or electronically generated.

We find that defendant’s peer review reports, if admissible, are sufficient to demonstrate a lack of medical necessity, which showing plaintiff failed to rebut. However, plaintiff argued before the Civil Court, and again on appeal, that defendant’s peer review reports are not in admissible form because they impermissibly bear a stamped facsimile of the doctor’s signature. Such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motions for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the doctor’s signatures appearing on defendant’s peer review reports, which will determine whether the peer review reports were in admissible form (Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant rebutted plaintiff’s prima facie case and demonstrated defendant’s entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of defendant’s peer review reports and for a new determination thereafter of plaintiff’s motion and defendant’s cross motion.

Pesce, P.J., Weston and Rios, JJ., concur.

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 (Genine D. Edwards, J.), entered September 29, 2010. The order denied plaintiff’s motion for summary judgment.

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 which denied its unopposed motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was 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]). Here, plaintiff’s affidavit failed to state unequivocally that defendant’s denial of claim forms were either untimely or without merit as a matter of law.

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 02, 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, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to specified discovery [*2]demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law (see 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 defendant’s discovery demands were served with defendant’s answer and plaintiff did not timely object to the discovery demands, plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a “staged accident” defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain “whether Plaintiff’s assignor received the DME [durable medical equipment] at issue.” Defendant’s DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: April 02, 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 (Sylvia G. Ash, J.), entered April 28, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 24, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed in accordance with its 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., [*2]17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The appearance of a provider at a duly requested 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., 35 AD3d at 722; 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]). Plaintiff does not claim to have responded in any way to the EUO request. Therefore, plaintiff’s objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, concur.
Decision Date: April 02, 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 (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend the answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend its answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in [*2]the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In addition, the Civil Court did not improvidently exercise its discretion in granting defendant’s application for leave to amend its answer in order to interpose the affirmative defense of fraudulent incorporation, in the absence of any showing that prejudice or surprise would result therefrom (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Tomasino v American Tobacco Co., 57 AD3d 652 [2008]; Mackenzie v Croce, 54 AD3d 825 [2008]), and since the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220 [2008]; Ingrami v Rovner, 45 AD3d 806 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432 [2007]).

Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant also established that special circumstances exist which warrant disclosure of plaintiff’s tax documents at issue (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]).

In light of the foregoing, plaintiff’s remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 02, 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 (Michael A. Ciaffa, J.), dated October 5, 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 denying its motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that he did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with NCEI’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

The appearance of the assignor at an IME is 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., 35 AD3d 720). As plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 28, 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 (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

THE CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: March 20, 2012

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 15, 2010. The order, insofar as appealed from, granted the branch of plaintiff’s motion for summary judgment seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied the branch of defendant’s cross motion seeking summary judgment with respect to said portion of the fifth cause of action, is deemed from a judgment of the same court entered August 20, 2010 awarding plaintiff the principal sum of $618.84 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary [*2]judgment dismissing plaintiff’s first through third and sixth through tenth causes of action, and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted; as so modified, the order, insofar as appealed from and insofar as reviewed on direct appeal, 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 entered July 15, 2010 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon so much of the fifth cause of action as seeks to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered awarding plaintiff the principal sum of $618.84 on that portion of its fifth cause of action.

In the July 15, 2010 order, the Civil Court found, among other things, that, with respect to the first through third, sixth, seventh, ninth and tenth causes of action, plaintiff had established its prima facie entitlement to judgment as a matter of law, that defendant had established timely and proper denial of claim forms and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. In support of the branches of its cross motion seeking to dismiss these causes of action, defendant submitted, among other things, affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the services rendered. As defendant’s showing that the services were not medically necessary was unrebutted by plaintiff and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these causes of action, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third, sixth, seventh, ninth and tenth causes of action are 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]).

Contrary to the Civil Court’s determination, we find that defendant’s cross motion demonstrated its entitlement to summary judgment upon the eighth cause of action. The record establishes that defendant timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim forms pertaining to the claims at issue in the eighth cause of action and that these claims were denied on the ground of lack of medical necessity based upon affirmed IME reports. As plaintiff failed to rebut defendant’s prima facie showing, defendant was entitled to summary judgment dismissing plaintiff’s eighth cause of action (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

With respect to the portion of the fifth cause of action seeking to recover upon two claim forms, each in the sum of $309.42, we find that plaintiff established its prima facie case (see [*3]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]). Since defendant did not address these two $309.42 claim forms in its motion papers submitted to the Civil Court, defendant failed to rebut plaintiff’s prima facie showing, and the court properly awarded plaintiff summary judgment upon these claim forms.

With respect to the portion of the fifth cause of action which seeks to recover upon the $608.40 claim form for services rendered to the assignor from June 1, 2006 through June 22, 2006, the affidavit of plaintiff’s billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff’s claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff’s motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant’s examiner contained a detailed recitation of defendant’s office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff. Plaintiff did not oppose this branch of defendant’s cross motion or submit further papers in support of its motion for summary judgment upon this claim form. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint as to the $608.40 claim form is granted.

Defendant’s contentions with respect to the fourth cause of action lack merit, and we do not disturb the Civil Court’s determination that defendant was not entitled to summary judgment dismissing this cause of action.

Accordingly, the judgment is affirmed and the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through third and sixth through tenth causes of action and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 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, Queens County (Jodi Orlow, J.), entered May 17, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment is denied. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see 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]), the affirmed letter of medical necessity submitted by plaintiff’s assignor’s treating physician was sufficient to demonstrate that there is a triable issue 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]; cf. 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 judgment of the Civil Court is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012