SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 28, 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 on the ground that the professional health services provided lacked medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal ensued.

Defendant made a prima facie showing of its entitlement to summary judgment by establishing the timely mailing of the claim denial form (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]) and by submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for his opinion that the professional health services at issue were not medically necessary (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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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, defendant’s motion for summary judgment dismissing the complaint was properly granted. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 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 (Lila P. Gold, J.), entered June 19, 2008. The order, insofar as appealed from as limited by the brief, (1) denied the branch of defendant’s motion seeking to vacate four orders dated November 30, 2007 granting, upon defendant’s default, plaintiff’s four motions for summary judgment, and, upon such vacatur, to deny plaintiff’s four motions for summary judgment, and (2) denied the branch of defendant’s motion seeking leave to renew the prior motions.

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

Plaintiff commenced four actions against defendant to recover assigned first-party no-fault benefits and, thereafter, moved for summary judgment in each action. In June 2007, the parties stipulated to adjourn the motions until November 30, 2007, and defendant agreed to serve its opposition papers by September 30, 2007. In July 2007, the parties stipulated to consolidate the four actions into one. Defendant served its opposition papers in November 2007, but the Civil Court would not consider them on the ground that they were untimely. By four separate orders dated November 30, 2007, the court granted plaintiff’s motions for summary judgment on default, finding that plaintiff had established its prima facie entitlement to summary judgment with respect to each motion. In December 2007, defendant moved to, among other things, vacate its default and/or for leave to renew/reargue the prior motions. Defendant’s motion was denied by order entered June 19, 2008, and the instant appeal by defendant ensued.

A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an [*2]excuse (see CPLR 2005) if the facts submitted in support thereof are in evidentiary form and sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). By its June 19, 2008 order, the Civil Court correctly found defendant’s law office failure excuse to be disingenuous and insufficient to justify the default. Consequently, so much of the order as denied the branch of defendant’s motion seeking to vacate its default is affirmed.

Furthermore, so much of the June 19, 2008 order as denied the branch of defendant’s motion seeking leave to renew is affirmed. Defendant cannot renew a motion upon which it defaulted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 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 (Kenneth P. Sherman, J.), entered February 15, 2008. The order (1) denied plaintiff’s motion for summary judgment and (2) granted defendant’s cross motion seeking summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial, to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests.

ORDERED that the appeal from so much of the order as granted defendant’s cross motion to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests, is dismissed as plaintiff is not aggrieved thereby; and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial (EBTs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “to the extent of permitting defendant to serve discovery requests upon plaintiff. Plaintiff’s right to object to said requests is preserved.” The instant appeal by plaintiff ensued.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment. The affidavit in support of plaintiff’s motion, submitted by the “employee of the company providing billing services for the plaintiff,” was insufficient to establish said employee’s personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

While plaintiff contends that defendant did not establish its entitlement to compel the EBTs of specified persons, we do not pass upon said issue as the Civil Court did not grant such relief. Rather, the court merely “permitt[ed] defendant to serve discovery requests upon plaintiff” and noted that plaintiff’s “right to object to said requests is preserved.” Therefore, plaintiff is not aggrieved by the part of the order which gave defendant permission to serve discovery requests and preserved plaintiff’s right to object to the requests (see CPLR 5511; see also CPLR 3122 [a]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered December 1, 2006. The order granted a petition to vacate a master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

ORDERED that the order is reversed without costs and the petition to vacate the master arbitrator’s award is denied without prejudice to renewal upon proper papers.

RJ Professional Acupuncturist, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld an arbitrator’s award denying petitioner’s claim for assigned first-party no-fault benefits. The Civil Court
granted the petition, vacated the master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was one denominated an “Affirmation in Support.” The attorney who purportedly signed the document did not affirm the statements contained therein “to be true under the penalties of perjury” (CPLR 2106) but merely indicated that he “states as follows” (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order [*2]is reversed and the petition to vacate the master arbitrator’s award is denied without
prejudice to renewal upon proper papers (see Matter of Sadler Textiles [Winston Uniform Corp.], 39 AD2d 845 [1972]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeals from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 2, 2008, and an order of the same court (Norman Janowitz, J.) entered December 22, 2008. The order entered July 2, 2008, insofar as appealed from, denied plaintiffs’ motion for summary judgment. The order entered December 22, 2008 denied a motion by plaintiff B.Y., M.D., P.C. for a protective order and, in effect, granted the branch of defendant’s cross motion seeking to dismiss, for failure of said plaintiff to comply with defendant’s discovery demands, so much of the complaint as sought to recover upon claims of said plaintiff.

ORDERED that the appeal from the order entered July 2, 2008 is dismissed as abandoned; and it is further,

ORDERED that the order entered December 22, 2008 is modified by deleting the provision thereof which, in effect, granted defendant’s cross motion to dismiss so much of the complaint as sought to recover upon claims of plaintiff B.Y., M.D., P.C., and by substituting therefor a provision granting the branch of defendant’s cross motion seeking to compel said plaintiff to comply with defendant’s discovery demands to the extent of compelling said plaintiff to produce the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of defendant’s notice for discovery and inspection, and to serve responses to questions 1, 6 through 9, and 23 through 25 of defendant’s “demand for verified written [*2]interrogatories,” insofar as the information sought relates to said plaintiff, within 60 days of the order entered hereon; as so modified, the order is affirmed without costs.

The appeal by plaintiffs from the order entered July 2, 2008 is dismissed as abandoned since the only appellant’s brief submitted was by plaintiff B.Y., M.D., P.C. (B.Y.) and said brief states that the appeal is from the order “entered Dec. 17 [sic], 2008,” and there are no issues raised in the brief with respect to the July 2, 2008 order.

In this action by providers to recover assigned first-party no-fault benefits, defendant served combined discovery demands, consisting of demands requesting the production of corporate documents, medical records, and various miscellaneous items, as well as “a demand for verified written interrogatories.” Rather than responding to such discovery demands or interrogatories, or objecting to them within 20 days of service (see CPLR 3122 [a]; 3133 [a]), B.Y., approximately one month after that 20-day period, moved for a protective order pursuant to CPLR 3103, asking the District Court to excuse its delay and to limit disclosure on the ground that the disclosure sought by defendant was “oppressive” in scope. Defendant cross-moved to dismiss, pursuant to CPLR 3126, so much of the complaint as sought to recover on B.Y.’s claims, based upon B.Y.’s failure to comply with its discovery demands, or, in the alternative, for an order, pursuant to CPLR 3124, compelling B.Y. to comply with said demands. By order entered December 22, 2008, the District Court denied B.Y.’s motion for a protective order as untimely and granted defendant’s cross motion seeking dismissal. The instant appeal by B.Y. ensued.

CPLR 3103 (a) empowers the motion court to issue a protective order “at any time.” The failure of a party to respond to disclosure demands within the applicable time periods (see CPLR 3122 [a]; 3133 [a]) or to move promptly for a protective order after receipt of said demands, however, is “more likely to be resolved against the movant who provided no objections and was tardy with the motion. The issuance of a protective order is within the broad discretion of the court and such dilatory conduct can often result in a court’s refusal to exercise its powers under CPLR 3103 (a)” (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). Accordingly, since B.Y. did not proffer a reasonable excuse for its delay, the court did not improvidently exercise its discretion in denying B.Y.’s motion for a protective order.

While a motion court has discretion to dismiss a complaint as a sanction against a plaintiff who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [3]; see Kihl v Pfeffer, 94 NY2d 118 [1999]), this drastic sanction is generally only justified where the party seeking dismissal demonstrates that the failure to comply with court-ordered discovery was “deliberate and contumacious” (see Furniture Fantasy v Cerrone, 154 AD2d 506, 507 [1989]). Moreover, the movant has the initial burden of coming forward with a sufficient showing of wilfulness (id.). Since defendant herein failed to meet that initial burden, it was an improvident exercise of discretion for the District Court to have granted defendant’s cross motion to the extent of dismissing the complaint insofar as it sought to recover upon claims of B.Y.

In view of the fact that B.Y. failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), it is obligated to produce the information sought except as to matters which are privileged or palpably improper (see New Era [*3]Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). To the extent that defendant’s discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that B.Y. did not timely object thereto (id.). However, defendant seeks discovery, inter alia, to support its defense that B.Y. is ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (see New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U]). As a result, discovery of certain items requested by defendant is not palpably improper, and B.Y. did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of its notice for discovery and inspection, and to responses to questions 1, 6 through 9, and 23 through 25 of its “demand for verified written interrogatories” insofar as the information sought relates to B.Y. (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; 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]).

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 19, 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 (Anna Culley, J.), entered January 23, 2009. The order denied defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action.

ORDERED that the order is reversed without costs and defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing plaintiff’s second and third causes of action on the ground that the services rendered to plaintiff’s assignor for which plaintiff sought payment were not medically necessary.
Plaintiff opposed the motion, and the Civil Court denied the motion, finding that there was a question of fact as to medical necessity.

Defendant made a prima facie showing of its entitlement to partial summary judgment dismissing plaintiff’s second and third causes of action by establishing that it timely denied the claim forms (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]), on the ground of lack of medical necessity, and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for the doctor’s opinion that the medical services provided to plaintiff’s assignor were not medically necessary [*2](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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact. Contrary to the finding of the Civil Court, the affirmation of plaintiff’s doctor did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]). Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were “essential to justify opposition” to defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]).

Accordingly, defendant’s motion for partial summary judgment dismissing plaintiff’s second and third causes of action is granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; 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]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 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 9, 2009, deemed from a judgment of the same court entered February 17, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 9, 2009 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 and granted defendant’s cross motion for summary judgment, finding that the action was premature as a result of plaintiff’s failure to provide requested verification. This appeal by plaintiff ensued.
The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, plaintiff’s sole argument is that defendant failed to prove that it had properly requested verification pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.5 (b) and § 65-3.6 (b), because it had only annexed its follow-up verification request as an exhibit to its cross motion and had failed to submit a copy of its initial verification request. We disagree. Defendant’s claims examiner explained that when a provider fails to comply with a verification request, defendant’s regular course of business is to stamp the original request with the words “second notice” and insert the date of the second notice. The verification request annexed as an exhibit was dated December 24, 2007 and bore a stamp of the words “second notice” and the date, January 28, 2008. Therefore, without reaching the question of whether defendant was even required in the first instance to annex its verification requests to its cross motion papers, we reject plaintiff’s argument that defendant failed to annex a copy of its initial verification request. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. [*2]
Decision Date: March 19, 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 (Thomas D. Raffaele, J.), entered August 15, 2008. The judgment, entered pursuant to so much of an order of the same court entered June 20, 2008 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of said causes of action, awarded plaintiff the principal sum of $3,169.96.

ORDERED that the judgment is reversed without costs, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court, Queens County for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment on its first through ninth causes of action and denied defendant’s cross motion for summary judgment. A judgment was entered in favor of plaintiff in the principal sum of $3,169.96. Defendant appeals from the judgment.

Defendant argues that plaintiff did not establish a prima facie case since the affidavit of plaintiff’s billing manager failed to establish that the bills in question were mailed and that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit 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]). In addition, the affidavit sufficiently established the mailing of plaintiff’s bills (see [*2]Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

Defendant further argues that plaintiff had no standing to bring the instant action since the assignment of benefits form was defective in that it was signed by a minor. However, since defendant did not timely object to the form or seek verification of the assignment, it waived any defenses based thereon (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Furthermore, defendant argues that it tolled the 30-day statutory time period within which it had to pay or deny plaintiff’s claims regarding the bills sought to be recovered in plaintiff’s first through sixth, eighth and ninth causes of action. It is undisputed that defendant timely mailed its initial request for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification request, which was mailed on the 30th day after the initial verification request, but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial request for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant argues that the Civil Court improperly awarded plaintiff summary judgment as to its seventh cause of action since defendant timely denied that bill on the ground that the fees charged were excessive and not in accordance with the Workers’ Compensation fee schedule, defendant did not annex any proof to establish said defense. Consequently, defendant failed to establish the existence of an issue of fact with respect to this cause of action.

Defendant also argues that the Civil Court improperly denied its cross motion for summary judgment as to plaintiff’s tenth cause of action because plaintiff failed to rebut defendant’s prima facie showing of lack of medical necessity as to this cause of action. However, since defendant did not appeal from the underlying order and the appeal from the judgment does not bring up for review so much of the order as denied the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s tenth cause of action, said part of the order is not before us on appeal.

Accordingly, the judgment is reversed, so much of the order entered June 20, 2008 as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through sixth, eighth and ninth causes of action, and denied the branches
of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon those causes of action are denied, the
branches of defendant’s cross motion seeking summary judgment dismissing those causes of action are granted, and the matter is remitted to the Civil Court for entry of an appropriate judgment upon plaintiff’s seventh cause of action.

Pesce, P.J., Weston and Steinhardt, JJ., concur. [*3]
Decision Date: March 19, 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 (Ellen M. Spodek, J.), entered April 17, 2008. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover first-party no-fault benefits assigned to it by a pedestrian who was allegedly injured after having been hit by the insured’s car, the Civil Court granted a motion denominated by both defendant and the court as one seeking to dismiss the complaint pursuant to CPLR 3211 (a) (7). However, in support of the motion, defendant did not argue that the allegations in the complaint failed to set forth a cause of action (see Andre Strishak & Assoc. v Hewlett Packard Co., 300 AD2d 608, 609 [2002]) or that plaintiff does not have a cause of action (see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530 [2007]), and the court did not so find. Rather, defendant sought to establish an affirmative defense, set forth in its answer, that the injuries did not arise from an insured incident, and sought dismissal on that ground (see CPLR 3212 [b]). Indeed, in opposition to the motion, plaintiff argued that defendant’s submissions were insufficient to establish defendant’s entitlement to summary judgment based on its defense. The Civil Court addressed itself to the merits of defendant’s defense, finding that “defendant has sustained its burden of proof of lack of coverage and therefore plaintiff’s complaint is dismissed.” Accordingly, we find that the court properly treated defendant’s motion, denominated as one pursuant to CPLR 3211 (a) (7), as a motion for summary judgment pursuant to CPLR 3212 (cf. Hopper v McCollum, 65 AD3d 669 [2009]).

We further find that the affidavit of the insured, submitted by defendant in support of its motion, was sufficient to demonstrate, prima facie, that “the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since plaintiff failed to raise a triable issue of fact, the Civil Court properly granted defendant summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, we affirm the order.

We note that in addition to arguing that the order appealed from should be reversed, plaintiff contends that an order dated February 25, 2008, which was subsequently sua sponte [*2]vacated by order dated May 14, 2008, should be reinstated. As no appeal has been taken from either of these orders, we may not review them. We further note that no appeal lies as of right from the order dated May 14, 2008.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 19, 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 10, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the third and fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, arguing, among other things, that there was a lack of medical necessity for the services at issue in plaintiff’s third and fifth causes of action, and that plaintiff was not entitled to recover on the claim at issue in plaintiff’s first cause of action based on the Worker’s Compensation Fee Schedule. Defendant appeals, as limited by the brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing plaintiff’s third and fifth causes of action.

The affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practice or procedure (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]). Furthermore, defendant submitted an affirmation by the doctor who performed the independent medical examination as well as a copy of the independent medical examination report. Said [*2]documents established, prima facie, that with respect to the services at issue in plaintiff’s third and fifth causes of action, there was no medical necessity (see A. Khodadadi Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]), which evidence was unrebutted. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action should have been granted.

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 10, 2010