SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant’s motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff’s principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied plaintiff’s claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish that its initial and follow-up EUO requests had been timely mailed.

On appeal, defendant argues that its motion to compel plaintiff to produce Dr. Mayard [*2]and Dr. Berardi for depositions should have been granted because the motion sought information regarding “treatment” and plaintiff’s “billing practices,” which information is material and necessary to the defense of this action. However, we find that these defenses are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007), and therefore defendant is not entitled to the discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

Turning to plaintiff’s cross motion, since defendant raises no issue on appeal with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The affirmation submitted by defendant’s attorney established that the EUO scheduling letters were mailed in accordance with his law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant requested the EUOs on February 13, 2007, within 15 days of receipt of the first two claim forms at issue in this case (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). When the doctors failed to appear for the EUOs on the scheduled February 28, 2007 date, defendant mailed a second request on March 7, 2007, rescheduling the EUO for March 21, 2007. While the Civil Court suggested, in the order appealed from, that the follow-up request was premature because it was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), we hold that, when the verification sought is an examination under oath or an independent medical examination, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination.

Defendant demonstrated that the doctors failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of the claims at issue had been denied on April 11, 2007 on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is clear, on this record, that the first two claims at issue, which plaintiff submitted on January 31, 2007, were properly tolled and, ultimately, timely denied by the April 11, 2007 denial of claim form. Since defendant is therefore not precluded from interposing its defense that plaintiff failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), plaintiff’s cross motion for summary judgment should have been denied with respect to these claims.

The next four claims, like the first two, were denied more than 30 days after their receipt. However, they were submitted on February 16, February 22 and March 5, 2007, after the initial EUO request letter had been sent. The issue presented is whether the initial EUO request acted to toll the time to pay or deny these subsequently received claims, or whether defendant was required to take additional action in order to create a toll. The No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon subsequent claims. Under the circumstances [*3]of this case, we find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant’s time to pay or deny plaintiff’s claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs. Consequently, the April 11, 2007 denial of claim was timely as to these claims, and defendant raised a triable issue of fact by demonstrating that the defense that plaintiff had failed to comply with a condition precedent to coverage applied to these claims as well, which defense was not precluded.

The last claim at issue in this case was submitted on April 2, 2007 and denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) on the ground that plaintiff, prior to submitting the claim, had failed to appear for an EUO requested by defendant with regard to the same accident and the same assignor. This claim was similarly timely and properly denied, as defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage.

In view of the foregoing, plaintiff’s cross motion for summary judgment is denied. We note that defendant has not sought summary judgment dismissing the claims.
Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 October 30, 2009. 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, plaintiff appeals from so much of an order as denied its motion for summary judgment. Because plaintiff failed to establish that the bill in question was not timely denied, or that the denial was conclusory, vague, or without merit as a matter of law, plaintiff failed to establish its prima facie case (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Quality Health Prods. v Country-Wide Ins. Co., 30 Misc 3d 143[A], 2011 NY Slip Op 50328[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Nyack Hosp. v Allstate Ins. Co., 84 AD3d 1331 [2011]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is affirmed.

We decline defendant’s request to search the record and award it summary judgment [*2]dismissing the complaint.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing plaintiff’s third cause of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment dismissing plaintiff’s third cause of action.

In support of its motion for summary judgment, defendant established that it timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. [*2]As the affirmed peer review report annexed to defendant’s motion papers set forth a factual basis and medical rationale for the peer review doctor’s determination that there was a lack of medical necessity for the services at issue, defendant established its prima facie entitlement to summary judgment dismissing plaintiff’s third cause of action (see Delta Diagnostic Radiology, P.C., 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]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact, as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, 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 Civil Court’s order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.

Steinhardt, J.P., Pesce and Weston JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 April 6, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006; as so modified, 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 granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta [*2]Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT code 97813 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since, with the exception of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, defendant fully paid the amount to which plaintiff was entitled for acupuncture services rendered by plaintiff’s licensed acupuncturist from October 26, 2005 through January 19, 2006, so much of defendant’s cross motion for summary judgment seeking to dismiss the complaint as to these claims is granted.

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff’s claim of $114 for the initial acupuncture visit on October 26, 2005, billed under CPT code 99204 (cf. 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]). As defendant raised no issue on appeal with respect to plaintiff’s establishment of its prima facie case, we do not reach the propriety of the Civil Court’s determination with respect thereto. Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff’s motion seeking summary judgment as to this claim, and denied the branch of defendant’s cross motion seeking summary judgment dismissing this claim.

In light of the foregoing, the order is modified by providing that plaintiff’s motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $114 for the initial acupuncture visit on October 26, 2005, and by further providing that defendant’s cross motion for summary judgment is granted only to the extent of awarding defendant summary judgment dismissing the remaining claims for acupuncture services from October 26, 2005 through January 19, 2006.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 30, 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 denying its motion for summary judgment on the ground that defendant’s opposition papers sufficiently rebutted plaintiff’s prima face showing. Although plaintiff established that defendant did not pay its claims, plaintiff failed to show that the claims were not 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 a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168).

Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground. [*2]

Pesce, P.J., and Steinhardt, J., concur.

Rios, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
1 ;1 5& #
PRESENT : PESCE, P.J., RIOS and STEINHARDT, JJ.
1 ;1 5& #
BATH MEDICAL SUPPLY, INC.
as Assignee of IONA ASSEVERO,

Appellant,

-against-

NO. 2010-2140 K C

DECIDED
AUTO ONE INSURANCE COMPANY,

Respondent.
1 ;1 5& #

Rios, J., dissents and votes to reverse the order and grant plaintiff’s motion for summary judgment in the following memorandum:

Plaintiff established its entitlement to summary judgment by proof of the timely submission of its claim to the insurer, setting forth the fact and the amount of the loss sustained, and that defendant had failed to toll their obligation to pay the claim within 30 days. Defendant’s opposition failed to establish the timely mailing of a denial. The affidavit by a “litigation examiner” who commenced employment in October 2004, in my view is insufficient to establish on personal knowledge familiarity with the practices and procedures in place at Auto One when the purported denials were issued in August 2004. Moreover, even were we to accept this claim of extra sensory perception, the affidavit is devoid of any information as to the affixation of postage on the generated denial envelopes. [*3]
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 30, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the October 4, 2005 claim (for services rendered from September 6 through September 29, 2005) 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 granting defendant’s motion for summary judgment dismissing the complaint.

The affidavit of defendant’s litigation representative established that, except for the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff’s October 4, 2005 claim (for services rendered from September 6 through September 29, 2005), defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v [*2]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]) on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the billed-for services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted so much of defendant’s motion for summary judgment as sought dismissal of the claims other than plaintiff’s October 4, 2005 claim.

Since defendant failed to establish the timely mailing of the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff’s October 4, 2005 claim, defendant was not entitled to summary judgment upon this claim.

In light of the foregoing, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the October 4, 2005 claim is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010, deemed from a judgment of the same court entered April 26, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 5, 2010 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,455.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition, and the Civil Court, by order entered February 5, 2010, granted plaintiff’s motion.
Thereafter, defendant moved to vacate the February 5, 2010 order, which motion the
court denied, by order dated May 19, 2010, finding that “[t]here was no default in this case.” Defendant appeals from the February 5, 2010 order, which appeal is deemed to be from the subsequently entered judgment (see CPLR 5501 [c]).

“Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion” (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]; see also Astoria Wellness Med., P.C. v State [*2]Farm Mut. Auto. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52008[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, the appeal from the judgment entered pursuant to the default order must be dismissed.

We note that defendant’s remedy, if it be so advised, is to move to reargue the May 19, 2010 order or to file a notice of appeal therefrom.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 3, 2009. 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court implicitly denied the motion and cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim, and that the sole issue for trial was defendant’s defense of lack of medical necessity of the services provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as implicitly denied its cross motion for summary judgment dismissing the complaint. [*2]

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report and an affirmed independent medical examination (IME) report, 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 services rendered. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report or the IME 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]). 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.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 September 21, 2009. 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court implicitly denied the motion and cross motion, finding that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim, and that the sole issue for trial was defendant’s defense of lack of medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as implicitly denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, three sworn peer [*2]review reports from a chiropractor, each of which set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the medical supplies provided to plaintiff’s assignor. In opposition to the 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 reports (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]). 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.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 7, 2009. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment is remitted to the Civil Court for a new determination after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant’s cross motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

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 based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court denied both the motion and the cross motion, finding that defendant had “failed [*2]to preserve a defense of Workers’ Compensation being . . . primary.” Defendant appeals from so much of the order as denied its cross motion.

Defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was a triable issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (Board) (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, defendant’s cross motion should not have been denied. Instead, the Civil Court should determine the cross motion after final Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011