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 27, 2009. The order denied defendant’s cross motion for summary judgment dismissing the complaint and its motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case, and granted plaintiff’s cross motion for a protective order.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and cross motion for a protective order are 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 appeals from an order which denied defendant’s cross motion for summary judgment dismissing the complaint, denied defendant’s motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s cross motion for a protective order, and granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case.

This action involves three claim forms for psychological services provided to plaintiff’s assignor. As to the claim form seeking to recover the sum of $120 dated May 22, 2006, the affidavit of defendant’s no-fault specialist established that defendant had timely requested additional verification of this 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 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to respond to defendant’s initial and follow-up requests. As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the cause of action relating to this bill is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

With respect to the other two claims at issue in this lawsuit ($1,061.63 and $120), defendant established that it had timely denied these claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) on the ground that the services provided were not medically necessary. In support of its cross motion for summary judgment, defendant submitted, among other things, sworn peer review reports which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for the services for which payment was sought (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]). Plaintiff failed to rebut defendant’s evidence of the lack of medical necessity for these services. Consequently, defendant established its entitlement to summary judgment as to these two bills.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and its cross motion for a protective order are denied.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant Rhondi Bleeker appeals from that portion of an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated June 7, 2010, which denied her motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Manuel J. Mendez, J.), dated June 7, 2010, insofar as appealed from, modified to the extent of granting defendant-appellant partial summary judgment dismissing plaintiff’s cause of action for medical expenses it paid on behalf of its subrogor and so much of the complaint as sought recovery of the initial $5,200 in workers’ compensation payments made to the subrogor; as modified, order affirmed, without costs.

In this subrogation action, plaintiff insurer seeks reimbursement for, inter alia, medical expenses and workers’ compensation benefits paid in lieu of first-party no-fault benefits to its subrogor for injuries he sustained as a result of an automobile accident with defendant, which occurred in New York during the course of subrogor’s employment. Since plaintiff provided a workers’ compensation insurance policy to subrogor’s employer, Knorr Brake Corporation, a Maryland-based company, subrogor initially received temporary benefits processed by Maryland’s Workers’ Compensation Commission. Ultimately, however, subrogor, as a New Jersey resident, successfully pursued his additional and final workers’ compensation benefits with the New Jersey Division of Workers’ Compensation.

Following discovery, defendant Rhondi Bleeker moved for summary judgment dismissing plaintiff’s complaint on the grounds that choice of law principles dictate this action to be governed, and consequently barred, by New Jersey and New York laws. Plaintiff cross-moved for partial summary judgment, countering, inter alia, that Maryland law governed. In the order appealed from, Civil Court denied defendant’s motion and plaintiff’s cross motion for [*2]summary judgment, while agreeing with plaintiff that Maryland law applied, thus permitting the continuation of this action. We modify.

While Civil Court properly determined that the law and forum where workers’ compensation benefits were paid will govern an action for reimbursement of those benefits (see New Jersey Mfrs. Ins. Co. v Steckert, 264 AD2d 314, 315 [1999], citing Matter of O’Connor, 21 AD2d 333, 335 [1964]; see Carminucci v Pepsico, Inc., 236 AD2d 499, 501 [1997]; Canfield v Child World, 209 AD2d 569, 569-570 [1994]), and that under Maryland’s Workers’ Compensation Act, an insurer is entitled to assert a subrogation claim for reimbursement of benefits paid (see Podgurski v OneBeacon Ins. Co., 374 Md 133, 140 [Md Ct of Appeals 2003]), Civil Court erred in concluding that this action is governed by the law of Maryland.

To the contrary, the record indicates and it is undisputed that plaintiff’s subrogor ultimately pursued his claim with the New Jersey Division of Workers’ Compensation, which culminated in an award approving the parties’ “settlement” of the claim based upon a “finding” that “the terms of the settlement are fair and just,” and awarding him permanent disability benefits and deeming the temporary disability awarded in Maryland and medical bills “adequate as p[ai]d.” Since subrogor invoked New Jersey’s Workers’ Compensation provisions for an adjudication of his claim and received a final award thereunder, this action is governed by the law of the State of New Jersey (see Williams v A & L Packing and Storage, 314 NJ Super 460, 465-466 [NJ App Div 1998]; Phillips v Oneida Motor Freight, Inc., 163 NJ Super 297, 305 [NJ App Div 1978]; see also Cramer v State Concrete Corp.,39 NJ 507, 511 [NJ 1963]).

Applying New Jersey law to the instant matter, most of plaintiff’s subrogation claims fail. Although New Jersey law authorizes an employer to institute an action against a responsible tortfeasor if the injured person does not do so, “the third party shall be liable only to the same extent as he would have been liable had the employee himself instituted suit within a year of the accident” (Patterson v Adventure Trails, 364 NJ Super 444, 447 [NJ Super 2003], quoting Continental Ins. Co. v McClelland, 288 NJ Super 185, 189-190 [NJ App Div 1996]). As such, plaintiff’s subrogation claim for medical expenses in the principal sum of $7,884.97, and workers’ compensation payments up to the sum of $5,200, that would otherwise have been collectible under a standard personal injury protection endorsement covering the subject loss (see NJSA 39:6A-4; see also Rutgers Cas. Ins. Co. v Ohio Cas. Ins. Co., 153 NJ 205, 210 [NJ 1998]), cannot be recovered against defendant (see Patterson v Adventure Trails, 364 NJ Super at 447). Accordingly, defendant’s motion for summary judgment dismissing these claims should have been granted only to the extent provided.

However, the record is inconclusive as to plaintiff’s entitlement to reimbursement for disability payments, if any, in excess of the above stated sum of $5,200 (see e.g. NJSA 39:6A-10), and resolution of this issue must await a more fully developed record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 10, 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 November 19, 2009, deemed from a judgment of the same court entered December 23, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,971.57.

ORDERED that the judgment is reversed, without costs, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the grounds that the services rendered lacked medical necessity and that the provider billed in excess of the workers’ compensation fee schedule. By order entered November 19, 2009, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant established that the denial of claim forms at issue were 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]). With respect to the claim at issue in plaintiff’s first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a [*2]factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff’s first 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] [App Term, 2d, 11th & 13th Jud Dists 2009]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker’s compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 26, 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 July 17, 2009, deemed from a judgment of the same court entered August 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 17, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $370.34.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff’s motion for summary judgment is vacated 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. A
judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing administrator was sufficient to establish that the documents annexed 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]). However, as the pertinent facts concerning the failure of plaintiff’s assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied. We reach no other issue. [*2]

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 24, 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 June 19, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order.

ORDERED that the appeal is dismissed as academic.

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 entered June 19, 2009 as granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order. Subsequent to the entry of the June 19, 2009 order, the Civil Court entered an order dismissing the action. The dismissal of the action rendered this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 2007 NY Slip Op 50673[U], 15 Misc 3d 131[A] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: May 24, 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 October 2, 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, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC’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 also submitted an affidavit of an employee of the office manager of the psychologist who was 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 no-fault specialist demonstrated that the claim denial forms, based on 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 [*2]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 claim 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, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 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, Queens County (Diane A. Lebedeff, J.), entered October 21, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 21, 2009 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,670.40.

ORDERED that the judgment is reversed, without costs, the order entered October 21, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. Plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s claims adjuster was sufficient to establish that defendant’s denial of claim forms were 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., 17 Misc 3d 16 [*2][App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant’s motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor’s shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 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, Queens County (Diane A. Lebedeff, J.), entered August 14, 2009, deemed from a judgment of the same court entered September 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 14, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $262.66.

ORDERED that the judgment is affirmed, without costs.

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. In support of its cross motion and in opposition to plaintiff’s motion, defendant asserted that it had timely denied plaintiff’s claims on the ground that the assignor had failed to attend duly scheduled independent medical examinations (IMEs) and that plaintiff’s motion for summary judgment was premature because plaintiff had failed to respond to defendant’s discovery demands. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, finding that since defendant’s first IME scheduling letter had been mailed prior to defendant’s receipt of plaintiff’s claim forms, it was a nullity and, as a result, defendant had failed to establish that it had sent a valid IME scheduling letter and a follow-up scheduling letter. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the Civil Court’s determination, “appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim [*2]form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff’s claim forms, the scheduling letter was not a nullity (id.).

However, since defendant’s moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor’s IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant’s reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant’s cross motion for summary judgment was properly denied.

While defendant argues that plaintiff’s motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant’s discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff’s motion for summary judgment was properly granted.

In light of the foregoing, the judgment is affirmed.

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

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Kings County (Dawn Marie Jiminez, J.), dated September 11, 2008, deemed from a judgment of the same court entered December 1, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,201.77.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered were medically necessary, as all elements of plaintiff’s case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the nonjury trial, defendant’s attorney requested an adjournment to “secure the appearance of [its] witness in this matter.” The Civil Court denied the application and issued a decision awarding judgment in defendant’s favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court’s determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant [*2]defendant an adjournment. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 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, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009, deemed from a judgment of the same court entered April 7, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,723.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff’s motion for summary judgment is vacated 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 of the Civil Court granting plaintiff’s motion for summary judgment. We deem defendant’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant’s papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., and Weston J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff’s assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.
Decision Date: May 12, 2011