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 (Rudolph E. Greco, Jr., J.), entered April 14, 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 appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

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 affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (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 order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 (Peter Paul Sweeney, J.), entered November 5, 2009. 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 granting defendant’s motion for summary judgment dismissing the complaint. Contrary to plaintiff’s sole contention on appeal, defendant’s peer review report was sufficient to establish defendant’s entitlement to summary judgment on the ground of lack of medical necessity (see 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]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 January 15, 2010. The order, insofar as appealed from as limited by the brief, implicitly granted the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff’s motion seeking an order finding, for all purposes in the action, that plaintiff had established its prima facie case is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as implicitly granted the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action.

Plaintiff’s motion for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that it had established its prima facie case for all purposes in the action, was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures so as to establish that the claim forms annexed to plaintiff’s moving papers were admissible under the business records exception to the hearsay rule (CPLR 4518). As a result, the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action should have been denied (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; see also [*2]Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is reversed, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case for all purposes in the action is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 11, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted; 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. This action involves eight claim forms for services provided to plaintiff’s assignor.

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]).

The affidavit submitted by plaintiff’s billing clerk was sufficient to establish that the claim forms which sought to recover the sums of $323.25 and $450.77, and which were annexed [*2]to plaintiff’s moving papers, were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that these claims were mailed to defendant (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]) and that defendant had failed to pay or deny the claims within the requisite 30-day period. Consequently, plaintiff established its prima facie entitlement to summary judgment on these claims (see Westchester Med. Ctr., 78 AD3d 1168), and the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as defendant merely stated that it had never received the claim forms, defendant failed to raise a triable issue of fact, and plaintiff should have been awarded summary judgment on these two claims (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the claims seeking reimbursement in the sums of $129.28 and $71.49, while plaintiff made a prima facie showing of its entitlement to summary judgment on these claims, the affidavit submitted by defendant in opposition to plaintiff’s motion was sufficient to establish 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; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant raised a triable issue of fact (see Zuckerman, 49 NY2d 557; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]), and plaintiff’s motion for summary judgment was properly denied with respect to these two claims.

Finally, as to the claims seeking reimbursement in the sums of $394.73, $193.95, $531.64 and $258.56, plaintiff failed to demonstrate that defendant had not either paid or denied the claims within the requisite 30-day period, or that defendant had issued timely denials of claims that were conclusory, vague or without merit as a matter of law. Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment on these four claims (see Insurance Law § 5106 [a]; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted.

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

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

While I disagree with the sufficiency of defendant’s affidavit attesting to the mailing of the subject denials, I am constrained to concur based upon the Appellate Division’s acceptance of a similar affidavit (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, proof of the mailing of the denials predicated upon a lack of medical [*3]necessity constitutes a valid basis to grant defendant’s motion for summary judgment. I disagree with the majority’s reliance on Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (78 AD3d 1168 [2010]), as there is no evidence that a partial payment was made in this case.
Decision Date: November 04, 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 (Diane A. Lebedeff, J.), entered December 24, 2009, deemed from a judgment of the same court entered January 27, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,937.25.

ORDERED that the judgment is reversed, without costs, the order entered December 24, 2009 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, the Civil Court, by order entered December 24, 2009, granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of the president of Media Referral Inc., the independent medical review service retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with her company’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., [*2]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 also submitted an affidavit of the chiropractor who was retained to perform the IMEs, which was sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims division employee demonstrated that after defendant had received requested verification, the denial of claim forms, which denied plaintiff’s claims based
upon plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claims based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Accordingly, the judgment is reversed, the order 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., Weston and Rios, JJ., concur.
Decision Date: November 04, 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 (Raul Cruz, J.), entered October 21, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 21, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of independent medical examinations (IME) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor’s failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 02, 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 (Terence C. O’Connor, J.), entered March 22, 2010, deemed from a judgment of the same court entered April 9, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 22, 2010 order granting defendant’s motion to dismiss the complaint, 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, the Civil Court, by order entered March 22, 2010, granted defendant’s motion to dismiss the complaint, pursuant to CPLR 3211 (a) (7), on the ground that plaintiff’s failure to appear for two examinations before trial (EUOs) violated a condition of coverage and bars the action (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff appeals from the order. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff’s sole contention on appeal is that defendant’s motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument is without merit because the mandatory personal injury endorsement, effective April 5, 2002, contains a provision providing for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]) and the underlying motor vehicle accident occurred in 2008. Thus, the applicable automobile insurance policy necessarily would have contained such a provision (see Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]). Even if the insurance policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103 [h]; Dover
Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]). Consequently, defendant’s motion to dismiss the complaint was properly granted (see Dover Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]; see also Eagle Chiropractic, P.C., 19 Misc 3d 129[A], 2008 [*2]NY Slip Op 50525[U]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 28, 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 (Peter Paul Sweeney, J.), entered November 5, 2009. 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, defendant appeals from so much of an order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit of defendant’s claims division employee established that defendant had timely mailed its denial of claim form, which denied the claim on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident, 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., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The affidavit further stated that defendant had first learned of the accident when it had received an NF-2 form, thereby demonstrating that defendant first learned of the accident more than 30 days after it had occurred. As defendant established its prima facie entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff did not proffer any proof, but merely speculated that defendant had learned of the accident prior to receiving the NF-2 form. Despite being informed by the denial of claim form that it had the opportunity to “submit[] written proof providing clear and reasonable justification for the failure” to timely advise defendant of the accident (Insurance Department Regulation [11 NYCRR] § 65-1.1; § 65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 28, 2011

[*1]

Supreme Court, Appellate Term, Second Department, October 28, 2011

APPEARANCES OF COUNSEL

Khavinson & Associates, P.C., Brooklyn (Stefan Belinfanti of counsel), for appellant. McDonnell & Adels, P.L.L.C., Garden City (James J. Cleary, Jr., of counsel), for respondent.

{**33 Misc 3d at 65} OPINION OF THE COURT

Memorandum.

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 discovery demands is granted to the extent of compelling plaintiff to provide the documents sought in items 19, 20, and 21 of defendant’s notice to produce and in interrogatory 11 (c) within 60 days of the date of this decision and order, and by further compelling plaintiff to produce its owner, John McGee, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; 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 defendant’s motion to strike the action from the trial{**33 Misc 3d at 66} calendar and compel plaintiff to respond to defendant’s discovery demands and to produce its owner for an examination before trial (EBT).

It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant’s motion to strike the action from the trial calendar was untimely, under the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff’s contention, it cannot be said that the Civil Court’s determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing [*2]laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

The record indicates that plaintiff objected to producing items 19 through 21 of defendant’s notice to produce, which sought plaintiff’s bank statements and canceled checks (item 19), plaintiff’s federal and state tax returns including attachments and schedules (item 20), and plaintiff’s payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff’s objection to the foregoing demands lacked merit. Defendant has shown that plaintiff’s bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns and payroll tax filings (see CPLR 3101 [a]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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{**33 Misc 3d at 67} 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 addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff’s responses to the remainder of defendant’s interrogatories and defendant’s notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.

In light of the foregoing and the misstatements of material facts contained within plaintiff’s certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant’s motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 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, insofar as appealed from as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 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. Defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006.

In support of its cross motion, defendant submitted, among other things, a sworn independent medical examination (IME) report which set forth the examining chiropractor’s determination that there was a lack of medical necessity for the services at issue. The affidavit from plaintiff’s chiropractor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claims, a finding which plaintiff does not dispute, the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 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. [*2]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 the branch of defendant’s cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011