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 (Noach Dear, J.), entered November 3, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and granted the branch of a motion by plaintiff seeking to deem certain facts established for all purposes in the action.

ORDERED that the order, insofar as appealed from, is reversed without costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, and defendant cross-moved for summary judgment dismissing the complaint. Defendant appeals from so much of the Civil Court’s order as found that plaintiff had established its prima facie case and as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Defendant denied the claim at issue in plaintiff’s first cause of action on the ground of lack of medical necessity. In support of its cross motion, defendant submitted an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for the services provided. As the affirmation of plaintiff’s doctor submitted in opposition to the cross motion did not meaningfully refer to, let alone rebut, the [*2]conclusions set forth in the peer review report, the branch of defendant’s cross motion seeking summary judgment as to this cause of action should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]; 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]).

Defendant denied the claims at issue in plaintiff’s second, third and fourth causes of action based upon plaintiff’s assignor’s failure to appear for properly scheduled independent medical examinations (IMEs). In support of the branches of its cross motion seeking summary judgment as to those causes of action, defendant submitted the affidavit of an employee of Media Referral Inc., which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on February 27, 2007 and March 9, 2007 in accordance with Media Referral’s standard office practices and procedures (see Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted the affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on March 8 and March 22, 2007 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As the appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department
Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720), the branches of defendant’s cross motion seeking summary judgment as to those causes of action should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and the branch of plaintiff’s motion seeking to deem certain facts established for all purposes in the action is denied. In light of our determination, we do not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 6, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02.

ORDERED that the order, insofar as appealed from, is reversed without costs, and the branch of plaintiff’s motion seeking summary judgment upon its claim form for the sum of $3,551.02 is denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment upon its
claim form for the sum of $3,551.02. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The Civil Court granted plaintiff’s motion for summary judgment upon this claim form, and this appeal ensued.

Contrary to defendant’s contention, the affidavit of plaintiff’s medical billing supervisor 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]). Since defendant raises no other issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not otherwise pass on the propriety of the determination of the Civil Court with respect thereto.

The affidavits submitted by defendant’s “mail and file manager” and its litigation examiner were sufficient to establish that defendant’s denial of claim form, which had denied the [*2]claim at issue of the ground of lack of medical necessity, 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (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 plaintiff’s motion for summary judgment upon the claim form seeking to recover the sum of $3,551.02 is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 S. Garson, J.), entered August 8, 2008. The order denied a petition to vacate a master arbitrator’s award and confirmed the award.

ORDERED that the order is affirmed without costs.

In this proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator which upheld an award of an arbitrator rendered pursuant to Insurance Law § 5106 (b), respondent opposed the petition, asserting that the master arbitrator had properly upheld the award. The Civil Court denied the petition and confirmed the award. The instant appeal by petitioner ensued.

“Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and
narrowly applied” (Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2009]). In the instant case, petitioner failed to demonstrate the existence of any of the statutory grounds for vacatur of the master arbitrator’s award. Moreover, the determination of the master arbitrator upholding the arbitrator’s award “had evidentiary support and a rational basis, and was not arbitrary and capricious” (id.; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Travelers Indem. Co. v United Diagnostic Imaging, P.C., 70 AD3d 1043 [2010]; Matter of American Express Prop. Cas. Co. v Vinci, 63 AD3d 1055 [2009]; Matter of Fireman’s Fund Ins. Co. v Allstate Ins. Co., 46 AD3d 560 [2007]). Accordingly, the Civil Court properly denied the petition to vacate the master arbitrator’s award, and the order is affirmed. [*2]

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

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

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am in complete disagreement with the findings of the arbitrator and the master arbitrator, in that they improperly imposed an additional requirement for a sufficient peer review report, which requirement is neither mandated by the no-fault regulations nor supported by authoritative case law. However, notwithstanding the error in their application of the law, such error does not here rise to the level of being arbitrary and capricious.
Decision Date: October 01, 2010

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 S. Garson, J.), entered March 11, 2009. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment as to the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, and denied defendant’s cross motion for summary judgment as to the unpaid portions of those claim forms.

ORDERED that the order, insofar as appealed from, is reversed without costs, so much of plaintiff’s motion as sought summary judgment on the unpaid portions of claim forms seeking the sums of $1,820, $1,300, and $780, respectively, is denied, and so much of defendant’s cross motion as sought summary judgment on the unpaid portions of those claim forms is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought to recover for the unpaid portions of five claim forms for acupuncture services. Defendant had paid portions of each claim, but had denied the remainder of each claim on the ground that plaintiff sought to recover fees in excess of what defendant had determined to be the proper rate of reimbursement for acupuncture services performed by chiropractors. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that defendant had failed to specify the dates on which its denials were mailed. On appeal, defendant limits its argument to the unpaid portions of three claim forms, which sought the sums of $1,820, $1,300 and $780, respectively.

Contrary to the conclusion of the Civil Court, the affidavit of defendant’s claims division employee was sufficient to establish that the relevant denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s [*2]Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins.,17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant properly demonstrated that it had used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by plaintiff’s licensed acupuncturist (Amercure Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50068[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, since defendant fully paid plaintiff the amount to which plaintiff was entitled with respect to the claim forms seeking the sums of $1,820, $1,300, and $780, respectively, plaintiff’s motion for summary judgment with regard to those unpaid portions should have been denied and defendant’s cross motion with respect thereto should have been granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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 (Kathy J. King, J.), entered March 13, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits for medical services provided from October 7, 2004 through December 29, 2004, defendant moved for summary judgment dismissing the complaint on the ground that it never received the claim forms and, as a result, the claim forms were not submitted within “180 days” after the services were provided (see former Insurance Department Regulations [11 NYCRR] § 65.12). In opposition, plaintiff argued that defendant must have received the claim forms since it knew the dates that the medical services were rendered as well as the total amount of the claims. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

We note at the outset that while defendant argued that plaintiff did not submit its claim forms within 180 days after the medical services were provided, since the medical services were provided from October 7, 2004 through December 29, 2004, plaintiff was actually required to submit its claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [effective April 5, 2002]).

Upon a review of the record, we are of the opinion that defendant did not make a prima facie showing of its entitlement to judgment as a matter of law. While the complaint listed the [*2]total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is reversed and defendant’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

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, Richmond County (Katherine A. Levine, J.), entered January 16, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary judgment is granted to the extent of dismissing the complaint with respect to the claim by plaintiff S & R Medical, P.C. in the sum of $2,831.08; as so modified, the order, insofar as appealed from, is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. The Civil Court denied plaintiffs’ motion and defendant’s cross motion. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, 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]; 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 affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services provided by plaintiff S & [*2]R Medical, P.C. in the amount of $2,831.08. As S & R Medical, P.C. failed to submit any evidence to rebut defendant’s showing of lack of medical necessity, defendant’s cross motion for summary judgment should have been granted as to the $2,831.08 claim (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]).

Defendant’s contention that the Civil Court should have granted it summary judgment dismissing the claim by plaintiff Altair Medical, P.C. and the claim by plaintiff S & R Medical, P.C. in the amount of $793.24 lacks merit because the “peer review report” pertaining to these claims was unsigned. Accordingly, defendant failed to establish its prima facie entitlement to summary judgment dismissing these claims (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about June 26, 2007, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $878.67.

Per Curiam.

Judgment (Peter H. Moulton, J.), entered on or about June 26, 2007, reversed, without costs, and judgment directed in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

Plaintiff, a provider of radiology services, submitted a claim to defendant for medical services rendered to plaintiff’s assignor, Julia Higginbotham. The claim was denied on coverage grounds, defendant asserting that its records indicated that Higginbotham was a pedestrian struck by a vehicle owned and operated by Linell McWilliams (an insured of defendant) in the State of Louisiana, where there is no no-fault coverage or obligation to pay first-party benefits. At trial, defendant stipulated to plaintiff’s prima facie case, and the only issue litigated was defendant’s lack of coverage defense. In support of its defense, defendant called one witness, a senior underwriter. The court subsequently rendered judgment in favor of plaintiff and awarded it the damages sought in the complaint.

We disagree with the trial court’s conclusions that defendant’s lack of coverage defense was predicated solely on inadmissible hearsay and that defendant, to establish its lack of coverage defense, was obligated to produce a witness with personal knowledge of the underlying accident. Defendant’s witness, whose testimony showed that the subject accident occurred in Louisiana and involved a pedestrian (Higginbotham) who was struck by a motor vehicle owned and operated by a Louisiana driver (McWilliams), appropriately relied on the contents of the subject claims log, a business record which constitutes an exception to the hearsay rule.

Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold. While more than one insurer may be obligated to pay first-party no-fault benefits for a covered event (see Insurance Law § 5106[d]), the obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured. Not only did plaintiff fail to satisfy that obligation here, but plaintiff’s counsel readily admitted at trial that counsel had no inkling whether Higginbotham was defendant’s insured.

Since defendant demonstrated that the claim did not arise out of an insured incident, it established its lack of coverage defense (see generally Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), and the complaint should have been dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 21, 2010

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 (Johnny Lee Baynes, J.), entered December 4, 2008. The order denied 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, defendant moved for summary judgment dismissing the complaint on the ground that the services billed for were not medically necessary. In opposition to the motion, plaintiff’s attorney argued that defendant had failed to make a prima facie showing of its entitlement to judgment as a matter of law. The Civil Court denied the motion and defendant appeals.

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant’s independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant’s moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant’s motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

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

Golia, J., concurs in part and dissents in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
HILLCREST RADIOLOGY ASSOCIATES [*2]
a/a/o DENNYS BARCCO,

Respondent,

-against-
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,

Appellant.

Golia, J., concurs in part and dissents in part and votes to modify the order to provide that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover for the MRIs of plaintiff’s assignor’s shoulder and knee is granted, in the following memorandum:

I concur with the majority in affirming that part of the Civil Court order which denied defendant’s motion for summary judgment as it relates to the MRI of plaintiff’s assignor’s cervical spine. As stated in the majority’s decision, “defendant’s independent medical examination report . . . found . . . the MRI to be medically necessary.” Inasmuch as this directly contradicted defendant’s peer review report, I agree that defendant is not entitled to summary judgment as regards this MRI study.

My review of the file does not reflect any “other reports that contradicted facts set forth in the peer review report.”

In addition, it should be noted that plaintiff has failed to submit an affidavit by a doctor, nurse or trained medical personnel of any kind to contradict or rebut the finding set forth in the peer review report. Indeed, the only medical opinion of any kind that contradicts the peer review report is that of defendant’s doctor who conducted the independent medical examination (IME) regarding the cervical MRI. As stated earlier, I concur with the majority in finding that defendant’s own IME doctor has properly raised an issue of fact preventing the court from granting summary judgment but only as to that MRI study.

However, there is no such issue of fact raised by any competent medical affiants as regards the remaining two MRIs of the left shoulder and left knee. It is beyond the ken of plaintiff’s counsel to reach “contrary” medical conclusions when not presented with “contrary” medical evidence.

Accordingly, I would modify the order to provide that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover for the MRIs of plaintiff’s assignor’s shoulder and knee is granted.
Decision Date: August 13, 2010

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 January 13, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed without costs, 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, among other things, summary judgment on the ground that plaintiff had failed to appear for two scheduled examinations under oath (EUOs).
Plaintiff opposed the motion and cross-moved for summary judgment, arguing, among other things, that defendant’s denial of plaintiff’s claims should be held to be untimely in that defendant had failed to establish the timely mailing of the EUO scheduling letters and also had failed to establish that plaintiff did not appear for the EUOs. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion, finding that defendant had failed to establish the timely mailing of the denial of claim forms and the EUO scheduling letters, and also had failed to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant ensued.

Contrary to the Civil Court’s findings, defendant established the timely mailing of the EUO scheduling letters. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 [*2]Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of the plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint. We note that, contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant timely mailed its denial of claim forms.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

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

I would affirm the order of the Civil Court. While an examination under oath (EUO) is mandated when timely requested by the insurance carrier, here defendant failed to present an affidavit from anyone with personal knowledge that the plaintiff did not appear for the EUO. Contrary to the finding by the majority, defense counsel fails to explain how he knows that plaintiff failed to appear for the EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Decision Date: August 12, 2010

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 (Richard Velasquez, J.), entered October 15, 2008. 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, defendant moved for summary judgment dismissing the complaint, arguing that it had timely denied plaintiff’s claim on the ground of lack of medical necessity and that, based on an annexed affirmed peer review report, it had established that the medical supplies
provided were not medically necessary. In opposition to the motion, plaintiff argued that defendant had failed to establish the timely mailing of its denial of claim form and
that defendant had failed to annex copies of the medical reports and/or records upon which the peer reviewer had relied in reaching his conclusion that the supplies provided were not medically necessary. The Civil Court granted defendant’s motion, finding that plaintiff had failed to rebut defendant’s showing of a lack of medical necessity.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claim at issue on the ground of lack of medical necessity (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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers an affirmed 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 supplies provided (see e.g. 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 & [*2]11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment.

In opposition to the motion, plaintiff failed to raise a triable issue of fact since it failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review report (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). While plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, plaintiff failed to demonstrate that it needed said documents in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; 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]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]; Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]). Accordingly, the order granting defendant’s motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: August 12, 2010