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 February 5, 2009. 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 the sum of $25,000 in assigned first-party no-fault benefits, defendant insurance company moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor’s injuries were preexisting, chronic or progressive degenerative conditions which did not result from the subject accident. The occurrence which forms the subject matter of this action took place on March 20, 2007. On June 12, 2007, plaintiff, an orthopedic surgeon, performed “anterior cruciate ligament reconstruction with suprapateller pouch and tendon left knee partial debridement, medial meniscectomy [and] left medial arthroscopic patellofemoral condoplasty” on plaintiff’s assignor at the Hospital for Special Surgery, for which he submitted a claim for $25,900. The claim was denied based upon an independent peer review on July 11, 2007 advising that the left knee injury was unrelated to the accident.

In support of its motion for summary judgment, defendant submitted, among other things, affirmed peer review reports and an “independent radiology report” of the MRI images of the affected area, which identified degenerative processes accounting for the conditions treated by plaintiff. In opposition, plaintiff submitted an affidavit from plaintiff’s president, a “board-certified” surgeon, who had performed the procedure. After defendant served reply papers in further support of the motion, plaintiff served a sur-reply, which contained a more detailed affidavit executed by the doctor. The Civil Court denied defendant’s motion, finding that plaintiff had raised issues of fact. This appeal by defendant ensued.

We note, at the outset, that plaintiff’s “Supplemental Affirmation in Opposition” is, in reality, a sur-reply, for the submission of which no showing of “good cause” had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

The proponent of a summary judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Muscatello v City of New York, 215 AD2d
463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). “It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate” (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant’s papers established, prima facie, based on objective medical evidence, that the assignor’s injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: August 02, 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, Queens County (Diane A. Lebedeff, J.), entered April 29, 2009. The order denied plaintiff’s motion to vacate a prior order which had granted on default defendant’s motion to dismiss the complaint for failure to prosecute.

ORDERED that the order is affirmed without costs.

Plaintiff commenced this action in July 2002 to recover assigned first-party no-fault benefits. Issue was joined in September 2002, and there was no further activity in relation to the litigation until March 2007, when defendant served on plaintiff’s counsel of record a 90-day demand pursuant to CPLR 3216 (b). Plaintiff did not respond to the demand, and, by order entered November 24, 2008, the Civil Court granted defendant’s motion pursuant to CPLR 3216 (a) to dismiss the complaint for failure to prosecute, upon plaintiff’s default in opposing the motion. Thereafter, plaintiff moved to vacate the November 24, 2008 order, alleging that it had no notice of the motion, the papers having been improperly served on plaintiff’s former counsel, who had been replaced as counsel by present counsel in May 2003. The Civil Court denied the motion, citing plaintiff’s failure to produce a consent to change attorney form executed by plaintiff or to file said form with the Civil Court. Plaintiff appeals and we affirm.

If a notice of change of attorney form was executed in 2003, there is no proof that it was filed with the Civil Court at any time prior to defendant’s service of the 90-day demand in March 2007 (see CPLR 321 [b]; Moustakas v Bouloukos, 112 AD2d 981, 983 [1985]). Plaintiff’s present counsel does not claim that he communicated with defendant or its counsel during that four-year period, nor do any grounds appear on this record to support an inference that defendant was aware of the change of counsel, thereby rendering the filing requirement a mere “formality,” [*2]which may be disregarded (Bevilacqua v Bloomberg, L.P., 70 AD3d 411, 412 [2010]). Consequently, the counsel on whom defendant served its 90-day demand remained the counsel of record, and service of the demand and of the subsequent motion to dismiss on said counsel was proper (Stancage v Stancage, 173 AD2d 1081 [1991]), as was the order dismissing the complaint on plaintiff’s default in opposing defendant’s motion to dismiss. Under the circumstances, the noncompliance with the filing and notice requirements of CPLR 321 (b) represented no mere neglect of formalities, but the failure to transfer representation to new counsel (Splinters, Inc. v Greenfield, 63 AD3d 717, 719 [2009]; Hawkins v Lenox Hill Hosp., 138 AD2d 572, 573 [1988]; Moustakas v Bouloukos, 112 AD2d at 983; see Weinstein-Korn-Miller, NY Civ Prac ¶ 321.11 [2d ed]).

Accordingly, the order denying plaintiff’s motion to vacate the order dismissing the complaint is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 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 August 5, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands, to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order.

ORDERED that the order is modified by providing that defendant’s cross motion to compel plaintiff to respond to all outstanding discovery demands is granted to the extent of compelling plaintiff to provide the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection within 60 days of the date of this decision and order; as so modified, the order 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 to compel plaintiff to provide discovery and to produce its owner, Valentina Anikeyeva, for an examination before trial. The Civil Court denied plaintiff’s motion for summary judgment as premature and granted defendant’s cross motion to compel plaintiff to provide discovery to the extent of directing plaintiff to “provide written verified discovery responses to all of defendant’s written demands” within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant argued in opposition to plaintiff’s summary judgment motion that the motion must be denied since there were “outstanding discovery demands,” to wit, its notice for an examination before trial and its supplemental demand for discovery and inspection. The Civil [*2]Court’s order did not compel plaintiff to appear for an examination before trial and defendant has not cross-appealed. As the order only compelled plaintiff to provide written verified discovery responses to all of defendant’s written demands, only those items sought in defendant’s supplemental demand for discovery and inspection are addressed herein.

Since the supplemental demand for discovery and inspection was served on plaintiff’s counsel on October 12, 2007, and plaintiff failed to challenge the propriety of such demand for discovery and inspection within the time prescribed by CPLR 3122, plaintiff is obligated to produce the information sought therein except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). The record reveals that, in opposition to plaintiff’s motion and in support of its cross motion, defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible, as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), to recover assigned no-fault benefits, a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff’s financial records and management agreements, defendant will be able to ascertain whether plaintiff is ineligible to recover assigned no-fault benefits (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

We note that special circumstances exist which warrant the disclosure of plaintiff’s income tax returns (see CPLR 3101 [a]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). Accordingly, defendant is entitled to discover the information sought in item 6.

However, to the extent that defendant seeks, in item 5, to compel the production of Ms. Anikeyeva’s personal income tax returns, defendant has failed to establish its entitlement to such documents. “It is well settled that tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources” (Altidor, 22 AD3d at 435-436 [citations and internal quotation marks omitted]; see also Benfeld, 44 AD3d at 600). At this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s personal income tax returns are properly discoverable, particularly since defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Likewise, at this juncture, defendant has failed to meet its burden of establishing that Ms. Anikeyeva’s bank account statements, “bank account registers, cancelled checks and ledger” are “material and necessary” (CPLR 3101 [a]) to the defense of this action (see Altidor, 22 AD3d 435; Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51636[U] [App Term, 1st Dept 2009]; cf. Dore, 264 AD2d 804). Accordingly, [*3]defendant is entitled to the information sought in items 12 and 13, solely with respect to plaintiff.

Item 7 seeks a copy of the assignment. However, defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, because defendant is now precluded from litigating the validity of the assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]), defendant’s demand for a copy of the assignment is palpably improper.

Finally, item 11 seeks expert witness disclosure. In view of the fact that CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information within any specifically restricted time limit, plaintiff should not be compelled to respond to item 11 at this juncture.

Accordingly, defendant is entitled to the production of the information sought in items 1 through 4, 6, 8 through 10, 12 (only as to plaintiff), 13 (only as to plaintiff) and 14 of defendant’s supplemental demand for discovery and inspection.

We note that, contrary to plaintiff’s contention, the Civil Court properly held that plaintiff’s motion for summary judgment was premature pending the completion of discovery (see CPLR 3212 [f]; Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637 [2010]). Plaintiff’s remaining contention lacks merit.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 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 denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that “plaintiff’s affidavit was legally insufficient.” This appeal by plaintiff ensued.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is affirmed.

In light of the foregoing, we reach no other issue.

Weston, J.P., Golia and Steinhardt, JJ., concur. [*2]
Decision Date: July 22, 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 or, in the alternative, to compel plaintiff to respond to defendant’s discovery demands, and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed without costs, the branches of defendant’s motion seeking summary judgment dismissing the claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07 are granted, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery demands with respect to the remaining claims is granted to the extent set forth herein, plaintiff’s cross motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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 plaintiff had failed to appear for two scheduled examinations under oath (EUOs). In the alternative, defendant sought to compel plaintiff to provide the information sought in defendant’s discovery demands. Plaintiff opposed defendant’s motion and cross-moved for summary judgment, arguing that defendant had failed to demonstrate that it had timely mailed its verification requests and EUO scheduling letters, and, as a result, had failed to establish that its 30-day claim determination period was tolled and, therefore, that its denial of plaintiff’s claim was timely. Plaintiff also argued that defendant had failed to establish that plaintiff did not appear for the EUOs. In addition, plaintiff asserted that since defendant had not demonstrated that further discovery was needed to enable defendant to raise a triable issue of fact, plaintiff was entitled to summary judgment. The Civil [*2]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 form and the EUO scheduling letters and had also failed to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant ensued.

Since defendant does not challenge plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto. However, contrary to the finding of the Civil Court, defendant established the timely mailing of the EUO scheduling letters with respect to plaintiff’s claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07. 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]). 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 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff’s appearance for scheduled EUOs 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 the branch of defendant’s motion for summary judgment to the extent of awarding defendant partial summary judgment dismissing plaintiff’s claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07. We note that contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant had timely mailed its denial of claim form with respect to the aforementioned claims (see New York & Presbyt. Hosp., 29 AD3d 547; Residential Holding Corp., 286 AD2d 679).

The first set of letters sent by defendant to plaintiff after defendant received plaintiff’s $334.14 claim (dates of service: July 24, 2006-July 31, 2006) and plaintiff’s $222.76 claim (dates of service: August 14, 2006 and August 15, 2006) merely stated that defendant was waiting for the results of an investigation by its special investigation unit as well as the scheduling of an EUO. Since it is well settled that an insurer’s delay letters, which request no verification, do not toll the statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]; Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [App Term, 2d & 11th Jud Dists 2005]), defendant did not toll the statutory period within which defendant had to pay or deny said claims. While the rest of the letters sent by defendant in response to the remaining claims sent by plaintiff were in fact verification requests, the affidavit submitted by defendant’s no-fault specialist failed to establish that they were timely mailed (see New York & Presbyt. Hosp., 29 AD3d 547; Residential Holding Corp., 286 AD2d 679; 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]). There was thus no tolling of the 30-day period as to these remaining claims. Consequently, with respect to the claims for which defendant did not [*3]establish that the 30-day period was tolled, defendant is precluded from raising most defenses.

Notwithstanding the foregoing, defendant correctly asserts that plaintiff’s cross motion for summary judgment was premature under CPLR 3212 (f). Defendant established that while facts may exist that are essential to justify the denial of plaintiff’s summary judgment motion, defendant was unable to set forth such facts with respect to its non-precluded defense that plaintiff was fraudulently incorporated (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]), since this information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands therefor (see CPLR 3212 [f]). As plaintiff had failed to challenge the propriety of defendant’s discovery demands, the Civil Court should have granted the branch of defendant’s motion seeking to compel plaintiff to provide the information demanded in defendant’s interrogatories and notice for discovery and inspection with the exception of requests which were palpably improper or which sought information or documents which were privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

In light of the foregoing, the order is reversed, the branches of defendant’s motion seeking summary judgment dismissing the claims for the sums of $222.76 (dates of service: October 23, 2006 and October 30, 2006), $501.21 and $167.07 are granted, the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests is granted to the extent indicated above, plaintiff’s cross motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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 plaintiff did not appear for the EUO. Contrary to the finding by the majority, defense counsel fails to explain how he knows that plaintiff did not attend the scheduled EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Decision Date: July 22, 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, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued.

Defendant established that it had timely denied the claims 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]). The affirmed peer review reports submitted in support of defendant’s cross motion for summary judgment set forth a factual basis and medical rationale for the determinations that there was a lack of medical necessity for the supplies furnished (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]).

In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact, since [*2]the doctor’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury, Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

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

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: July 22, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 28, 2008. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,500.50.

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. In opposition to the motion, defendant argued
that it had timely denied plaintiff’s claims based upon plaintiff’s assignor’s failure to appear for an examination under oath (EUO). By order dated October 9, 2008, the Civil Court granted plaintiff’s motion, and a judgment was entered in plaintiff’s favor pursuant to that order.

To raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant was required to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). [*2]

Accordingly, the judgment is affirmed.

Pesce and Rios, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to reverse the judgment, vacate the order granting plaintiff’s motion for summary judgment, and deny the motion.

I disagree with the assertion by the majority that it was defendant’s burden “to demonstrate that its initial and follow-up requests for verification were timely” in addition to also establishing “that the assignor had failed to appear” for the examinations under oath (EUOs). To the contrary, the Civil Court merely found that defendant had “failed to submit sufficient evidence of the alleged no show.”

Inasmuch as plaintiff did not submit a brief on appeal, it consequently failed to raise any issue as to the sufficiency of the mailing or the timeliness of the verification notices to appear for the EUOs. Clearly, those issues should not be addressed on this appeal. The only issue before us is the decision of the Civil Court, which simply found defendant’s evidence alleging the claimed “no show” was insufficient.

My dissent then confines itself to the only issue addressed on appeal, that is, the sufficiency of the evidence to establish the “alleged no show.”

Two separate certified transcripts were presented by defendant to establish the failure of the assignor to appear for the EUOs. These transcripts were taken at the offices of counsel for plaintiff’s assignor, Ms. Walters, in the presence of a paralegal employed by the assignor’s counsel and an investigator employed by defendant. The certified transcript of the first EUO contains statements by the investigator, on the record, to the effect that Ms. Walters had not appeared even though it was one hour past the time of the examination. That transcript contains no statement by the paralegal employee of Ms. Walters’ attorney who was present.

The second EUO transcript was also certified and taken at the offices of Ms. Walters’ counsel. It contains the statement of the investigator, who states that “I was informed by the receptionist, Jenny, that the insured, Jessica Walters, called . . . and informed them that she would not be able to attend today’s Examination Under Oath.” That unopposed information came directly from Jenny, the agent of the eligible injured person’s attorney.

If the statements submitted by defendant are less than accurate, then it was incumbent upon plaintiff to rebut them. Certainly, it would be an easy contradiction inasmuch as both of the alleged “no shows” took place in the law offices of the eligible injured person’s chosen counsel.

I note the Court of Appeals’ longstanding position that supports the foregoing proposition, to wit, that for the purpose of opposing a summary judgment motion, statements that may be subject to objections should not be precluded from consideration (see Phillips v Kantor & Co., 31 NY2d 307 [1972]).

Compliance with EUO requests is a condition precedent for the recovery of no-fault benefits.
Decision Date: July 22, 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 May 5, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint and denied, as moot, plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, insofar as is relevant to this appeal, moved for summary judgment dismissing the complaint on the ground that the acupuncture services at issue were rendered by plaintiff, a professional service corporation, which is owned solely by a doctor who is neither licensed nor certified to perform acupuncture. Plaintiff cross-moved for summary judgment, arguing that it is eligible for reimbursement of such no-fault benefits because the acupuncture services were rendered by a licensed acupuncturist employed by plaintiff. The court granted defendant’s motion for summary judgment and denied plaintiff’s cross motion as moot. This appeal ensued.

As the pertinent facts of this case are the same as those in Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: July 22, 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 January 8, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment as to plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. The appeal is deemed from a judgment of the same court entered May 25, 2007 which awarded plaintiff the principal sum of $2,295 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted plaintiff’s motion for summary judgment as to plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto is vacated and plaintiff’s motion for summary judgment as to said claims is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that there was a lack of medical necessity for the supplies provided to plaintiff’s assignors. The Civil Court granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto. This appeal by defendant ensued. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit of plaintiff’s employee was sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form 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 [*2]Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5102 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims 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]). Defendant annexed to its opposing papers affirmed peer review reports, which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the supplies at issue, which evidence was unrebutted. In view of the foregoing, and as plaintiff’s remaining contentions lack merit (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), plaintiff’s motion for summary judgment as to its claims in the sums of $619 and $837 as assignee of Zoila Correa, and $839 as assignee of Miriam Soto should have been denied.

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 decision reached by the majority, I wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my expressed position and generally contrary to my views.
Decision Date: July 22, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 28, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 [2005]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a condition precedent to coverage (see id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010