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, Queens County (Cheree A. Buggs, J.), entered April 20, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 20, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

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

With respect to plaintiff’s claims for acupuncture services rendered from November 19, 2007 through February 21, 2008, defendant demonstrated that it had fully paid plaintiff for the services billed for under codes 97810 and 97811, by using 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]). In response, [*2]plaintiff failed to raise a triable issue of fact (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court properly granted the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover for these services.

Defendant denied payment of the claims for acupuncture services rendered from February 27, 2008 through May 1, 2008 based on the sworn independent medical examination report of Dr. Thomas, which established a prima facie showing of lack of medical necessity for these services. On appeal, plaintiff contends that there is an issue of fact regarding the lack of medical necessity. However, as plaintiff raises this issue for the first time on appeal, it is not properly before this court (see Gorenstein v Debralaurie Realty Co., 280 AD2d 642 [2001]).

Accordingly, the judgment is affirmed.

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 (Sylvia G. Ash, J.), entered January 22, 2010, deemed from a judgment of the same court entered March 5, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 22, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,693.12.

ORDERED that the judgment is reversed, without costs, the order entered January 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied 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 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 affidavit of defendant’s claims examiner was sufficient to establish that defendant had timely denied plaintiff’s claim (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 [*2]Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the services rendered. As the record does not contain an affidavit from a health care practitioner on behalf of plaintiff to rebut the conclusion 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]), defendant’s cross motion for summary judgment should have been 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 judgment is reversed, the order entered January 22, 2010 is vacated, plaintiff’s motion for summary judgment is denied 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 (Genine D. Edwards, J.), entered January 26, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint without prejudice to renewal upon proof that plaintiff’s assignor “was given notice per HIPAA.”

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 without prejudice to renewal upon proof that plaintiff’s assignor “was given notice per HIPAA.”

On appeal, defendant contends, and plaintiff concedes, that no HIPAA authorization or notification was required. Defendant argues that it was entitled to summary judgment dismissing the complaint because it had not received written notice of the accident, which was a condition precedent to coverage.

Defendant established, through its submissions, that it had not received any written notice of the accident involving plaintiff’s assignor, that it had timely denied plaintiff’s claims on that basis, and that it had advised plaintiff in its denial that late notice might be excused if it was [*2]provided with “reasonable justification” for the failure to give timely notice (Insurance Department Regulations [11 NYCRR] §§ 65-1.1, 65-3.3 [e]). In opposition to defendant’s motion, plaintiff failed to demonstrate either that defendant had already been provided with timely written notice or that defendant had been provided with “reasonable justification” for the failure to comply with this requirement. Since compliance with the notice requirement of the policy is a condition precedent to coverage (see New York & Presbyt. Hosp. v Country Wide Ins. Co., 17 NY3d 586 [2011]) and since plaintiff failed to demonstrate the existence of a triable issue of fact (see Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion 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 (Pamela L. Fisher, J.), entered February 23, 2010. The order denied defendant’s motion for partial summary judgment with respect to plaintiff’s claims for acupuncture services rendered from February 1, 2007 through June 27, 2007 and from August 6, 2007 through September 4, 2007.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for partial summary judgment with respect to plaintiff’s claims for acupuncture services rendered to its assignor from February 1, 2007 through June 27, 2007 and from August 6, 2007 through September 4, 2007.

We find that defendant’s motion established that the claim denial forms had been timely mailed in accordance with defendant’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, however, was not entitled to partial summary judgment with respect to plaintiff’s first [*2]two claims (for dates of service from February 1, 2007 through February 28, 2007 and from March 1, 2007 through March 29, 2007). The explanation entered on defendant’s denial of claim forms for these two claims reflected that plaintiff was not entitled to recover for concurrent care, pursuant to General Ground Rule 6 of the workers’ compensation fee schedule. In support of its motion for partial summary judgment, however, defendant asserted that these claims should be dismissed, pursuant to the workers’ compensation fee schedule, because the amounts sought by plaintiff for the acupuncture services it had rendered to its assignor exceeded the amounts permitted by the fee schedule. Because defendant’s motion was predicated on an excessive fee schedule defense, and since the explanation for the denial on defendant’s denial of claim forms did not apprise plaintiff of the ground asserted in its motion with “a high degree of specificity” (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871, 872 [2011], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]), defendant was not entitled to partial summary judgment on this ground with respect to these claims.

Defendant denied the remaining claims (for dates of service from April 2, 2007 through April 30, 2007; from May 1, 2007 through May 31, 2007; from June 4, 2007 through June 27, 2007; from August 6, 2007 through August 27, 2007; and from September 4, 2007 through September 27, 2007) based upon an independent medical examination (IME) by defendant’s acupuncturist, who had found that acupuncture treatment was no longer necessary. The IME report and accompanying affidavit of defendant’s acupuncturist established a lack of medical necessity for the services at issue with respect to these claims. However, since the affidavit submitted by plaintiff’s acupuncturist in opposition to defendant’s motion was sufficient to raise a triable issue of fact regarding the medical necessity of the treatment rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126[A], 2011 NY Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), defendant was not entitled to summary judgment as to these remaining claims.

Accordingly, the order is affirmed, albeit for reasons other than those stated by the Civil Court.

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 (Kathryn E. Freed, J.), entered December 3, 2009. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a notice of trial and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands to the extent of directing plaintiff to provide specified documents.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands 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 granted the branch of defendant’s motion seeking to vacate a notice of trial and granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands to the extent of directing plaintiff to provide “corporate tax returns for 2002, 2003 and 2004 as well as the lease agreement where services were allegedly provided and any management agreements as well as 1099’s, W2s and [*2]K1s for payment to Vladimir Grinberg.”

In January 2007, defendant served plaintiff with a demand for verified interrogatories, a notice for discovery and inspection, and a notice for an examination before trial of all adverse parties. None of these discovery demands sought production of documents pertaining to a defense that plaintiff is ineligible to recover no-fault benefits because plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (State Farm Mut. Auto. Ins. Co. v Malella, 4 NY3d 313 [2005]). In December 2008, plaintiff filed a notice of trial and certificate of readiness. Defendant timely moved for, among other things, vacatur of the notice of trial and summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to respond to its discovery demands. Annexed to defendant’s motion papers were supplemental combined demands seeking, among other things, management and lease agreements, corporate tax records, as well as “W2’s and/or any other documentation to establish that each person who provided services claimed by plaintiff for the subject assignor(s) is an actual employee of plaintiff.”

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 and strike the matter from the trial calendar (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]).

Although defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover no-fault benefits because plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws, a defense which is not precluded (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]), defendant’s original discovery demands did not seek production of documents pertaining to such a defense. Consequently, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands was premature and should not have been granted (see CPLR 3120 [2]; 3124), as plaintiff had not had an opportunity to respond to the supplemental demands (see Jones v LeFrance Leasing L.P., 81 AD3d 900 [2011]). Plaintiff’s remaining contentions either lack merit or are not properly before the court as they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s supplemental discovery demands is denied as premature.

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

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated December 3, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated December 3, 2010, modified to grant defendant’s motion for summary judgment dismissing plaintiff’s claim in the sum of $395.69; as modified, order affirmed, without costs.

Defendant demonstrated its entitlement to summary judgment dismissing plaintiff’s assigned first-party no-fault claim in the sum of $395.69, it being undisputed on this record that plaintiff failed to respond to defendant’s timely and proper verification request made in connection with this claim (see 11 NYCRR 65-3.8[b][3]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]). We agree that plaintiff’s remaining no-fault claims are not ripe for summary disposition, since there exist triable issues with respect to defendant’s verification and fraud defenses.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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 4, 2010. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.

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.

Contrary to defendant’s only contentions on appeal regarding plaintiff’s prima facie showing of its entitlement to judgment as a matter of law, plaintiff demonstrated that the
subject bills were submitted to defendant and that they set forth the fact and the amount of the loss sustained. However, we find that the sworn statements submitted by defendant in opposition to plaintiff’s motion were sufficient to raise a triable issue of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, 11th and 13th Jud Dists 2009]). [*2]Accordingly, the order granting plaintiff’s motion for summary judgment is reversed and plaintiff’s motion is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 21, 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 (Robin D. Garson, J.), entered December 7, 2009. 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 motion for summary judgment on the ground that it had “failed to establish its prima facie case through the affidavit annexed to its motion papers.”

Plaintiff’s affiant stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery, if either, was used in this case. Accordingly, the affidavit did not establish that the supplies at issue had been delivered to plaintiff’s assignor, and plaintiff’s motion for summary judgment was properly denied (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142[A], 2011 NY Slip Op 50315[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 21, 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 2, 2010. The order, insofar as appealed from, 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 found that plaintiff had established
its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing [*2]that the supplies were not medically necessary was unrebutted by plaintiff.

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., Rios and Steinhardt, JJ., concur.
Decision Date: December 21, 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, Queens County (Cheree A. Buggs, J.), entered January 20, 2010, deemed from a judgment of the same court entered February 8, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the January 20, 2010 order granting defendant’s application to dismiss the complaint, awarded defendant the principal sum of $50.

ORDERED that the judgment 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 application to dismiss the complaint based upon plaintiff’s noncompliance with a conditional order of preclusion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5520 [c]).

After plaintiff had provided written responses to defendant’s discovery demands, defendant moved to compel plaintiff to provide more complete responses to its discovery demands. By order entered April 30, 2008, the Civil Court (Diane A. Lebedeff, J.) directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. Thereafter, defendant moved to dismiss the complaint due to plaintiff’s failure to comply with the April 2008 order. By order entered August 5, 2008, the court (Thomas D. [*2]Raffaele, J.) again directed plaintiff to produce Dr. McGee for a deposition, and to provide management, lease and billing agreements. In November 2008, defendant moved to dismiss the complaint due to plaintiff’s failure to comply with the prior two orders. In opposition to defendant’s motion, plaintiff stated that it had served defendant with full and complete responses to its discovery demands. By order dated November 17, 2008, the court (Leslie J. Purificacion, J.) stated that the complaint “shall be dismissed” unless plaintiff provides management, lease and billing agreements within 14 days and “produces Dr. McGee for a deposition within 45 days thereafter.” After defendant had filed an affidavit of noncompliance with the November 17, 2008 order, the court (Cheree A. Buggs, J.), by order dated January 20, 2010, dismissed the complaint.

Plaintiff contends on appeal that the November 2008 order should be vacated because plaintiff’s “discovery responses made it explicitly clear that no management agreements exist or are in [plaintiff’s] possession, and written billing agreements were never entered into between [plaintiff] and any other party”; that it was never in possession of a lease agreement; and that its representatives had testified at numerous depositions in other actions that the lease agreement was between landlord and a third party. At the outset, we note that plaintiff never asserted this argument in the Civil Court. In any event, a review of plaintiff’s responses to defendant’s discovery demands reveals that plaintiff did not provide full and complete responses to the demands, and never clearly indicated that no management, lease or billing agreements existed. As plaintiff has failed to comply with the court’s November 17, 2008 order and as plaintiff’s remaining contentions lack merit or are unpreserved for appellate review, we find no basis to disturb the judgment.

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: December 21, 2011