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 (Sylvia G. Ash, J.), entered April 23, 2007. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered August 30, 2007 which awarded plaintiff the principal sum of $791.92 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment is vacated, 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 appeals, as limited by its brief, from so much of an order of the Civil Court entered April 23, 2007 as granted plaintiff’s cross motion for summary judgment. The appeal is deemed to be from the judgment that was subsequently entered pursuant to said portion of the order (see CPLR 5501 [c]).

Plaintiff’s cross motion for summary judgment was supported by an affidavit of an employee 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 annexed documents were admissible pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Psychology YM, P.C. v Nationwide Mut. Ins. Co., 24 Misc 3d 140[A], 2009 NY Slip Op 51634[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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 judgment is reversed, so much of the April 23, 2007 order as granted plaintiff’s cross motion for summary judgment is vacated [*2]and plaintiff’s cross motion for summary judgment is denied.

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

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Julia I. Rodriguez, J.), entered on or about June 20, 2008, reversed, with $30 costs, complaint reinstated, and judgment directed in favor of plaintiff in the principal sum of $3,072.08.

Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411; see also Lumberman’s Mut. Cas. Co. v Temco Serv. Indus., 209 AD2d 296 [1994]).

With respect to the merits of plaintiff’s action, as Civil Court properly recognized, plaintiff established a prima facie case to recover the first-party no-fault benefits it sought in its complaint. Since defendant failed to adduce any evidence on the issue of the medical necessity of the services rendered to plaintiff’s assignor, defendant’s only purported defense at trial, we direct judgment in plaintiff’s favor for the principal amount sought in the complaint.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 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 (Carolyn E. Wade, J.), entered December 9, 2008. The order, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by adding thereto a provision that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76-77 [App Term, 9th & 10th Jud Dists 2009] [citation omitted]; see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]). In light of the foregoing, plaintiff’s remaining contentions lack merit.

In addition to staying the action pending an application to the Workers’ Compensation Board, the Civil Court’s order should have provided that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days, defendant’s motion for summary judgment dismissing the complaint is granted unless plaintiff shows good cause why the complaint should not be dismissed. We modify the order accordingly.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 30, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 22, 2008. The order, insofar as appealed from as limited by the brief, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, stayed the action with respect to plaintiff A.B. Medical Services, PLLC is treated as an application for leave to appeal from that portion of the
order, and leave to appeal from that portion of the order is granted (see UDCA 1702); and it is further,

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision thereof which stayed the action is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC.

In this action by providers to recover assigned first-party no-fault benefits for services rendered to their assignor in 2002, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for relief pursuant to CPLR 3124 and CPLR 3126. Plaintiffs appeal, as limited by their brief, from the order of the District Court insofar as it, without determining the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff A.B. Medical Services, PLLC (A.B. Med.), sua sponte, stayed the action as to A.B. Med, so that said plaintiff “can make application to the appropriate court for the appointment of a receiver or liquidating trustee.”

We note that no appeal lies as of right from a sua sponte order staying an action (see UDCA 1702 [a] [2]). However, we deem the notice of appeal to be an application
for leave to appeal and, for the reasons stated in A.B. Med. Servs., PLLC a/a/o
Beauliere v Travelers Ins. Co. ( Misc 3d , 2009 NY Slip Op 29510 [App Term, 9th & 10th Jud Dists 2009]), leave to appeal from so much of the order as, sua sponte, stayed the action with respect to A.B. Med. is granted, the order, insofar as appealed from, is reversed, said provision is stricken, and the matter is remitted to the District Court for a determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med.

In remitting the matter for determination of the branch of plaintiffs’ motion seeking summary judgment in favor of A.B. Med., we note that the court similarly did not pass upon the merits of the branch of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as asserted by A.B. Med.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 23, 2009

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 (Carolyn E. Wade, J.), entered September 30, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $2,693.12 (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 is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further
proceedings.

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. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]). On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claim on the ground that the services rendered were medically unnecessary (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also annexed to the motion papers were affirmed peer review reports which set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact as to medical necessity.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 September 17, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 is granted.

In this action to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992, on the ground that plaintiff lacked standing to recover upon said claim because the claim form submitted to defendant identified only a physician as the provider and it neither referenced plaintiff, a professional services corporation, to whom the assignor had assigned his benefits, nor set forth the provider’s relationship to plaintiff. In denying defendant this relief, the Civil Court noted that the claim form contained a handwritten notation, “Bedford Park [sic],” in parentheses, alongside the name of the physician, in the portion of the form labeled provider, and plaintiff had annexed a copy of the assignment in favor of plaintiff as an exhibit to the cross motion brought by plaintiff. Defendant appeals from so much of the order as denied the branch of its motion seeking to dismiss plaintiff’s claim seeking the sum of $2,992.

The claim form at issue sought to recover payment on behalf of the physician who rendered the services and not on behalf of plaintiff. Indeed, while the handwritten notation on the claim form refers parenthetically to “Bedford Park Neurology,” this is not the name of plaintiff professional corporation. Consequently, plaintiff’s belated attempt to establish that the claimant physician was either an employee or principal of plaintiff, and that the claim form contains misinformation, is unavailing (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Plaintiff failed to submit a claim form which entitled it to payment, and may not correct the allegedly erroneous claim form once [*2]litigation has commenced (id.; cf. Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 should have been granted (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 23, 2009

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 October 9, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 9, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $575.30.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued, in opposition to a motion by plaintiff for summary judgment,
that plaintiff had failed to establish a prima facie case and that defendant had timely denied plaintiff’s bill on the ground of lack of medical necessity. The Civil Court granted plaintiff’s motion, and defendant appealed. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

Since the affidavit of defendant’s claims representative conceded receipt of the claim in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established that the documents annexed to plaintiff’s motion 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]), plaintiff’s prima facie entitlement to summary judgment was established.

In opposition to the motion, defendant established that it had timely mailed its request for verification and subsequent denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, by submitting an affidavit of an employee with knowledge of defendant’s standard office practices or procedures designed to ensure that items were properly [*2]addressed and mailed (see e.g. St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also annexed a copy of the affirmed peer review report setting forth a factual basis and medical rationale for the conclusion that the equipment provided was not medically necessary (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]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, defendant raised a triable issue of fact and, thus, plaintiff’s motion for summary judgment should have been denied.

We decline defendant’s request that we search the record and grant defendant summary judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 September 22, 2008. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $292.24 (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 is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

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. As limited by its brief, defendant appeals from so much of the order as granted plaintiff’s motion for summary judgment. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish 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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground, among others, that the services rendered were not medically necessary (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]). Also annexed to the motion papers were affirmed independent medical examination reports which set forth a factual basis and medical rationale for the peer reviewers’ [*2]opinions that the medical services provided were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiff’s motion for summary judgment should have been denied due to the existence of an issue of fact.

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, plaintiff’s motion for summary judgment is denied and the matter is remitted to the Civil Court for all further proceedings.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2009

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 July 29, 2008. The judgment, entered upon an order of the same court entered May 8, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,543.

ORDERED that the judgment is reversed without costs, the order entered May 8, 2008 is vacated, 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, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-
moved for summary judgment, arguing that plaintiff had failed to make a prima facie showing of its entitlement to judgment as a matter of law and that, in any event, the action was premature due to plaintiff’s failure to provide requested verification. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding, among other things, that defendant had failed to establish that its time to pay or deny plaintiff’s claims had been tolled since defendant’s follow-up verification request had been sent to plaintiff 29 days after the initial request for verification. A judgment was subsequently entered, and this appeal by defendant ensued.

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 29th 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. (___ AD3d ___, 2009 NY Slip Op 08585 [2d Dept 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 *2 [citations omitted]). In view of the foregoing, we reach no other [*2]issue.

Accordingly, the judgment is reversed, the order entered May 8, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted on the ground that the action is premature.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 23, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Respondent Countrywide Insurance Company appeals from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), dated April 27, 2006, which granted the petition to vacate an arbitration award and awarded petitioner Preferred Medical Imaging, P.C. unpaid no-fault benefits in the principal sum of $912.

Per Curiam.

Order (Eileen A. Rakower, J.), dated April 27, 2006, affirmed, without costs.

Civil Court properly vacated the arbitration award issued in an arbitration proceeding commenced by the provider, Preferred Medical Imaging, P.C., to recover first-party no-fault benefits, since the court correctly concluded that the award was not “supported by a reasonable hypothesis and was … contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]). The arbitrator’s conclusion, which was sustained by the master arbitrator, that the provider was required to establish the medical necessity of the services rendered was contrary to settled law (see e.g. Mary Immaculate Hosp v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Metro. Radiological Imaging, P.C. v Country-Wide Ins. Co., 19 Misc 3d 130[A] [2008]).Respondent-appellant Countrywide Insurance Company’s remaining contentions are without merit.

We note respondent-appellant’s three and a half year delay in perfecting this appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 18, 2009