SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 30, 2008. The order granted plaintiff’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff established its prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [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]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and 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]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 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 August 1, 2008. 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment on the ground that defendant’s opposition to the motion had raised a triable issue of fact as to medical necessity.

Contrary to plaintiff’s contention on appeal, the doctor performing the peer review did not conclude that he had insufficient information upon which to base a conclusion. Instead, the affirmed report raised a triable issue of fact because “the report clearly indicates that the pertinent [treating] physician’s reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer’s opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the [services] provided” (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

We decline defendant’s request that we search the record and grant defendant summary [*2]judgment (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Inc. Co., 39 AD3d 832 [2007]).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 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, Richmond County (Katherine A. Levine, J.), entered July 3, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). The Civil Court denied defendant’s unopposed motion on the ground that defendant had failed “to show [that] the IME notices were mailed to [the] claimant.”

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. 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]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 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, deemed from a judgment of the same court entered November 10, 2008 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 30, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,693.12.

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, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, based upon an affirmed peer review report, that the MRIs were not medically necessary. By order dated September 30, 2008, the Civil Court granted plaintiff’s motion for summary judgment. After judgment was entered on November 10, 2008, defendant filed a notice of appeal from the September 30, 2008 order. We deem the appeal to be from the judgment (see CPLR 5512 [a]).

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. We disagree because the affidavit was sufficient to comply with 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]). As a result, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to plaintiff’s motion, defendant established that it had timely denied plaintiff’s claims based upon an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s opinion that the services provided to plaintiff’s assignor were not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant [*2]proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

To the extent defendant asks this court to search the record and grant it summary judgment, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst., 39 AD3d 832).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 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 August 13, 2008. The order denied plaintiff’s motion to restore the case to the trial calendar.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties consented to have the case marked off the trial calendar in March 2007. In August 2008, plaintiff moved to restore the case. The Civil Court denied plaintiff’s motion “with leave to renew upon a proper showing/reasonable excuse as to why plaintiff did not move to restore within one year of the case being marked off the trial calendar.” The instant appeal by plaintiff ensued.

An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case (see Kaufman v Bauer, 8 Misc 3d 60 [App Term, 1st Dept 2005], revd on other grounds 36 AD3d 481 [2007]; see generally Uniform Rules for Trial Courts [22 NYCRR] § 208.14 [c]; Goldstein v Block, 7 AD3d 669 [2004]). Herein, plaintiff failed to satisfy the foregoing requirements. Accordingly, the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 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 (Thomas D. Raffaele, J.), dated June 20, 2008. 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, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that the equipment provided to plaintiff’s assignors was not medically
necessary. The Civil Court denied plaintiff’s motion, finding that there was a triable issue regarding medical necessity. The instant appeal by plaintiff ensued.

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

To the extent defendant asks this court to search the record and grant it summary judgment dismissing the complaint, we decline to do so (see e.g. New York Univ. Hosp. Rusk Inst., 39 AD3d 832).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: October 13, 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 (Rhonda E. Fischer, J.), entered August 11, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed plaintiffs’ motion and cross-moved for summary judgment on the ground that plaintiffs’ assignor failed to appear for scheduled examinations under oath (EUOs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion.

On appeal, plaintiffs argue that they made a prima facie showing of their entitlement to summary judgment, and that defendant was not entitled to summary judgment because, among other things, defendant failed to prove that it mailed the EUO notices. We disagree.

Contrary to plaintiffs’ contention, defendant established both that the EUO notices were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) and that the assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, in light of the foregoing and the fact that plaintiffs’ further [*2]contentions that the EUO notices were defective and that an EUO was not necessary lack merit, defendant’s cross motion for summary judgment was properly granted (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]).

Even were we to find otherwise, plaintiffs’ motion for summary judgment was properly denied because plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Molia, J.P., Nicolai and Tanenbaum, JJ., concur.
Decision Date: October 06, 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, Kings County (Dolores L. Waltrous, J.), entered April 24, 2008. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.Order affirmed without costs.

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

Contrary to plaintiff’s contention, defendant’s motion for summary judgment established that plaintiff’s assignor failed to attend scheduled chiropractic/acupuncture independent medical examinations (IMEs) and that the letters scheduling said IMEs were timely sent pursuant to the standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s remaining contention lacks merit.

Accordingly, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]) and denied plaintiff’s cross motion for summary judgment.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 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 November 2, 2007, deemed from a judgment of the same court entered January 18, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 2, 2007 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment, dismissed the complaint.

Judgment reversed without costs, order, insofar as it denied so much of plaintiff’s motion as sought summary judgment upon the unpaid portion of a $1,080 claim form received by defendant on December 23, 2004, and, insofar as it, upon a search of the record, granted defendant summary judgment as to the unpaid portion of said claim form, vacated, so much of plaintiff’s motion as sought summary judgment upon the unpaid portion of said claim form granted, and matter remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In support of a motion for summary judgment in this action by a provider to recover assigned first-party no-fault benefits, plaintiff showed that it had submitted a bill to defendant seeking to recover at a rate of $90 for each session of acupuncture rendered to plaintiff’s assignors by plaintiff’s licensed acupuncturist. Defendant paid plaintiff for the sessions at the reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services. Plaintiff sought full reimbursement, i.e., the $60.70 balance allegedly due for each session, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated, that is, between $85 and $100 per session. The court denied plaintiff’s motion [*2]for summary judgment, searched the record and granted defendant summary judgment dismissing the complaint. This appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s assertion, the affidavit submitted by plaintiff’s billing manager 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]).

Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: August 31, 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, Kings County (Lila Gold, J.), entered December 14, 2007. The order denied defendant’s motion to vacate a default judgment and compel plaintiff to accept its late answer.

Order modified by providing that defendant’s motion is granted to the extent of vacating the default judgment with respect to plaintiff’s $2,322.73 claim for services rendered to assignor Patrick Seraphin and compelling plaintiff to accept defendant’s late answer with respect to said claim; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate a default judgment and to compel plaintiff to accept its late answer. The Civil Court denied defendant’s motion, and the instant appeal by defendant ensued.

It is well settled that in order to vacate a default judgment, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). In the case at bar, defendant’s no-fault supervisor, who was also the claims representative who handled the instant claims, submitted an affidavit in which he stated that defendant had lost the file containing the summons and complaint and had not found out about the default until June 25, 2007. The record also indicates that defendant’s attorney initiated the instant motion to vacate the default judgment promptly in July 2007. On these facts, defendant’s failure to answer the complaint was excusable (see e.g. Perez v Travco Ins. Co., 44 AD3d 738 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d at 743; Dodge v Commander, 18 AD3d 943, 946 [2005]; Triangle Transp. Inc. v Markel Ins. Co., 18 [*2]AD3d 229 [2005]; Allstate Ins. Co. v Progressive Cas. Ins. Co., 20 Misc 3d 139[A], 2008 NY Slip Op 51567[U] [App Term, 2d & 11th Jud Dists 2008]).

A review of the record indicates that defendant demonstrated a potentially meritorious defense to plaintiff’s $2,322.73 claim for the services it rendered to assignor Patrick Seraphin. The affidavits of defendant’s claims representative and mail room supervisor show that defendant timely denied said claim within the 30-day statutory time period as required by Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (see also Insurance Law § 5106 [a]), based upon, inter alia, a peer review report concluding that there was no medical necessity for the services rendered to Seraphin. In regard to the claims for the services plaintiff rendered to assignor Guy Louis, defendant argued that it did not have to pay or deny these claims because plaintiff had failed to respond to its verification requests and, thus, the 30-day statutory time period within which it had to respond to the claims had been tolled. However, defendant failed to demonstrate merit to said defense since the affidavits did not show that defendant’s requests for additional verification were timely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) and, consequently, the action with respect to said claims was not premature.

In view of the fact that defendant has shown a reasonable excuse for its default and a meritorious defense as to the claim for services rendered to assignor Patrick Seraphin, we find that the Civil Court improvidently exercised its discretion in denying that part of defendant’s motion which sought to vacate the default judgment and compel plaintiff to accept a late answer with respect to plaintiff’s $2,322.73 claim (see New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511, 512 [2006]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 31, 2009