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

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