[*1] Decided on December 3, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570595/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff-provider commenced this action to recover assigned first-party no-fault benefits for medical supplies provided to its assignor. Defendant-insurer moved for summary judgment dismissing the complaint as premature on the ground that plaintiff failed to comply with defendant’s verification requests. In support of that motion, defendant submitted the affidavit of its claims examiner, in which he stated that (1) defendant received plaintiff’s claim on August 13, 2007; (2) defendant mailed verification requests on August 14, 2007, and follow-up requests on August 28, 2007 and September 28, 2007; and (3) plaintiff failed to respond to any of these requests. Civil Court denied the motion on the ground that the verification requests were issued “less than thirty (30) days apart in contravention of the regulations, thereby rendering them improper.” We reverse.
It is well settled that the 30-day period within which an insurer must pay or deny the claim is tolled until it receives the relevant verification requested (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Plaintiff does not dispute that defendant mailed the verification requests, as well as the follow-up requests, and that plaintiff failed to respond. Although defendant’s September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant’s “improper” follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd., supra), does [*2]not vitiate the validity of the September 28, 2007 follow-up request. “[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests” (id. at 865). Accordingly, since plaintiff did not respond to defendant’s verification requests, its action is premature, and defendant’s motion for summary judgment dismissing the complaint as premature should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 03, 2010

[*1] Decided on December 3, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2009-1476 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 29, 2009. The order denied defendant’s motion for consolidation, and, upon consolidation, for other relief.

ORDERED that the order is affirmed, with $10 costs.

In this Civil Court, Kings County, action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate 82 other cases then pending in the Civil Court, Kings County, all of which were commenced by the same provider against defendant or its various property casualty affiliates and subsidiaries, with this case and, upon consolidation, for other relief. The court denied defendant’s motion, and this appeal by defendant ensued.

In opposition to the motion, plaintiff established that on November 5, 2007, prior to the date that defendant brought the motion that gave rise to the instant appeal, the Civil Court had issued an order granting plaintiff summary judgment in this action and awarding it the sum of $1,078.32, together with applicable statutory interest, attorney’s fees, costs and disbursements. In view of the foregoing, there has been a final adjudication on the merits in this action (see QFI, Inc. v Shirley, 60 AD3d 656 [2009]; Methal v City of New York, 50 AD3d 654 [2008]). Thus, there was no longer a pending action with which other actions could be consolidated pursuant to CPLR 602 (a) (see Fischer v RWSP Realty, LLC, 53 AD3d 595 [2008]). Accordingly, the order denying defendant’s motion for consolidation is affirmed. We pass on no other issue.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 03, 2010

Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co.

2010 NY Slip Op 20493 [30 Misc 3d 42]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 16, 2011

[*1]

Quality Medical Healthcare of NY, P.C., as Assignee of Bianca Villaroel, Respondent, v NY Central Mutual Fire Insurance Company, Appellant.

Supreme Court, Appellate Term, Second Department, December 3, 2010

APPEARANCES OF COUNSEL

Gullo & Associates, LLP, Brooklyn (Cristina Carollo of counsel), for appellant. Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for respondent.

{**30 Misc 3d at 43} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, so much of the order dated August 8, 2006 as provided that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

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. By order dated August 8, 2006, the Civil Court denied both the motion and the cross motion, found that the only triable issue of fact was whether the fees charged were excessive and stated that the trial was limited to that issue, citing CPLR 3212 (g).

In accordance with the August 8, 2006 order, the nonjury trial began with defendant’s presentation of its defense. Defendant’s attorney sought to present evidence to demonstrate, in effect, that plaintiff was not eligible for reimbursement under the No-Fault Law because plaintiff’s sole shareholder was not licensed or certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 [*2]Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela,{**30 Misc 3d at 44} 4 NY3d 313 [2005]). The Civil Court would not allow defendant to present this evidence because, the court found, it was barred by the August 8, 2006 order, which limited the issue for trial to the excessiveness of the fee schedule. When defendant failed to proffer any evidence as to its fee schedule defense, plaintiff moved for a directed verdict and the court granted plaintiff’s motion. Subsequently, a judgment was entered in favor of plaintiff, and the instant appeal by defendant ensued.

On appeal, defendant argues, in effect, that the August 8, 2006 order improperly barred defendant from asserting its defense that plaintiff was not eligible for reimbursement under the No-Fault Law pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12). Defendant also argues, in effect, that to the extent said order could be interpreted to read that plaintiff did not have to prove its case at trial, the order was improper.

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to “ascertain what facts are not in dispute or are incontrovertible” (CPLR 3212 [g]). Under that circumstance, the court is directed to “make an order specifying such facts,” which will then “be deemed established for all purposes in the action.” In addition, the court is permitted to “make any order as may aid in the disposition of the action.”

Upon a review of the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted “proof of the fact and amount of loss sustained” to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff’s motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).{**30 Misc 3d at 45}

Accordingly, the judgment is reversed, so much of the order dated August 8, 2006 as stated that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

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

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-2147 N C.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated July 9, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of a motion by plaintiff St. Vincent’s Hospital & Medical Center seeking summary judgment upon the first and second causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

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

In this action to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff St. Vincent’s Hospital & Medical Center (SVHMC) moved for summary judgment upon the first and second causes of action, and defendant cross-moved for summary judgment dismissing those causes of action on the ground that they were premature since SVHMC had failed to fully comply with defendant’s verification requests. The District Court granted SVHMC’s motion for summary judgment upon the first and second causes of action, and denied defendant’s cross motion, finding that defendant had failed to establish the mailing of its initial and follow-up verification requests. This appeal by defendant ensued.

Contrary to the determination of the District Court, the affidavit of defendant’s claims examiner was sufficient to establish that the initial and follow-up verification requests 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). However, defendant’s contention that SVHMC failed to provide requested verification lacks merit. Defendant’s verification requests sought copies of NF-5 forms signed by SVHMC’s assignors. However, the only [*2]portions of an NF-5 form which may bear the signature of an eligible injured person are the portions which authorize the release of health service or treatment information in accordance with the No-Fault Law and which either assign no-fault benefits to a provider or authorize the provider to receive payments directly from the insurer. As defendant was already in possession, prior to its verification requests, of the subject NF-5 forms, which each bore notations that the assignor’s signature was “on file,” defendant’s verification requests, in effect, sought a copy of the document(s) “on file” which had been signed by the assignors. Since SVHMC established that it had, in response to the verification requests, provided defendant with copies of the authorizations to release information and the assignments executed by the assignors, SVHMC established that it had complied with those requests. While defendant’s attorney asserted that defendant had never received the signed assignment of benefits forms, defendant’s attorney’s affirmation was without probative value as defendant’s attorney lacked personal knowledge of same (see Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001 [2009]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]).

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

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-1836 N C.

Appeal from an order of the District Court of Nassau County, First District (Gary Franklin Knobel, J.), dated June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.

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 moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. The District Court denied defendant’s motion, finding that defendant’s peer reviewer failed to set forth a sufficient medical rationale and factual basis for his conclusion that the services performed were not medically necessary, and, upon a search of the record, granted summary judgment to plaintiff. The instant appeal by defendant ensued.

In support of its motion, defendant submitted an affidavit of its no-fault litigation examiner, which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affidavit of defendant’s chiropractor and his peer review report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the services at issue (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

In opposition to defendant’s motion, plaintiff failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity (see Speciality Surgical Servs. v [*2]Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2009-1819 N C.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered May 12, 2009. The order denied defendant’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The District Court denied the motion, stating that although defendant had timely denied plaintiff’s claims, the peer review report upon which the denials were based was insufficient. The instant appeal by defendant ensued.

In support of its motion, defendant submitted affidavits of an employee of its claims division which demonstrated that defendant had timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity, 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the conclusion of the District Court, we find that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]; see also A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]).

Since defendant made a prima facie showing that the services at issue lacked medical necessity, the burden shifted to plaintiff to rebut defendant’s showing. As plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Speciality Surgical [*2]Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1782 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, in effect, 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that defendant’s denial of claim form was “timely and proper,” and that the sole issue to be determined at trial was the medical necessity of the medical equipment at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical equipment at issue. Defendant’s showing that the equipment was not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial was “timely and proper,” a finding which plaintiff has not disputed on appeal, defendant’s cross motion for summary judgment dismissing the complaint 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1781 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 24, 2009. The order, insofar as appealed from, in effect 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered. Plaintiff did not oppose defendant’s cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it mailed timely and valid denials,” and that the sole issue to be determined at trial was the medical necessity of the medical services at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, the affirmed peer review reports of a neurologist and a doctor of internal medicine, both of which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that such services were not medically necessary was unrebutted by plaintiff. While plaintiff asserts on appeal that a letter of medical necessity by Dr. Ronald DiScenza was submitted by plaintiff in rebuttal to one of the peer review reports and was sufficient to raise a triable issue of fact, the order appealed from indicates that the Civil Court did not consider any opposition to the cross motion and there is no such letter in the record.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it mailed timely and valid denials,” a finding which plaintiff does not dispute on appeal, defendant’s cross motion for summary judgment dismissing the complaint 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 [*2]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]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570600/10.

Shulman, J.P., McKeon, Schoenfeld, JJ.

NY County Clerk’s No. 570600/10 Calendar No. 10-358 Triangle R Inc. a/a/o Danilo Cabarcas, Plaintiff-Respondent, -against- Praetorian Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue. As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*2]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur Decision Date: November 26, 2010

NOVEMBER 26, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								Nove mber 2010 Term

Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue.

As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).
Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*3]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570501/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which denied its motions for summary judgment dismissing the complaints.

Per Curiam.

Order (Fernando Tapia, J.), entered April 15, 2010, reversed, with $10 costs, defendant’s motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgement accordingly.

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff’s assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant’s motion for summary judgment dismissing the underlying actions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 26, 2010