[*1]

Supreme Court, Appellate Term, Second Department, July 9, 2009

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Skip Short of counsel), for appellant. Cohen & Jaffe, LLP, Lake Success, for respondent.

{**25 Misc 3d at 20} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

Plaintiff Dr. Albert Davydov, DDS, commenced the instant action to recover assigned first-party no-fault benefits for dental services rendered. After a nonjury trial, the Civil Court rendered a decision in favor of plaintiff in the principal sum of $6,569.27. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff lacks standing since the assignment of the no-fault benefits executed by plaintiff’s assignor was in favor of Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS is without merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. 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, defendant is now precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008]).

A provider establishes a prima facie entitlement to judgment as a matter of law by submitting proof that the prescribed statutory billing forms were mailed and received, and that [*2]payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742{**25 Misc 3d at 21} [2004]). In the instant case, Dr. Davydov’s testimony and the exhibits admitted into evidence were sufficient to satisfy plaintiff’s burden. Contrary to defendant’s contention, the elements of a prima facie case to recover assigned first-party no-fault benefits do not differ based upon the nature of the services provided by the plaintiff provider (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129 [2008]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Mary Immaculate Hosp., 5 AD3d 742 [2004]).

Defendant contends that the trial court improperly curtailed defendant’s cross-examination and direct examination of Dr. Davydov. Defense counsel attempted to question Dr. Davydov regarding the medical necessity of the services rendered and whether the amount charged exceeded the amount set forth in the fee schedule. Since the parties did not stipulate to the timeliness of the denials, it was defendant’s burden to establish that it timely denied plaintiff’s claims so as to demonstrate that defendant’s proffered defenses were not precluded. Inasmuch as defendant called no witnesses and presented no evidence to show that its denials were timely mailed, defendant failed to establish that said defenses were not precluded (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly curtailed examination of the witness with respect thereto.

Accordingly, the judgment is affirmed.

Golia, J. (dissenting and voting to reverse the judgment and dismiss the complaint in the following memorandum). I find that plaintiff Dr. Albert Davydov, DDS was without standing to prosecute the instant proceeding. I conclude, contrary to the holding by the majority, that the factual circumstances of the instant matter are inapposite to the Court of Appeals’ holding in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312 [2007]).

In Hospital for Joint Diseases, the plaintiff medical provider submitted a claim form along with an assignment of benefits form that did not contain any signature, but which stated that the patient’s signature was “on file.” The insurance carrier in that case did not ask for further verification or demand a copy of the original document containing the signature that was purportedly “on file.” It eventually denied the claim on the{**25 Misc 3d at 22} grounds that such assignment was invalid and therefore the plaintiff did not have standing to prosecute the claim. The Court of Appeals held that inasmuch as the carrier was precluded from raising any affirmative defense as to the validity of the assignment of benefits form due to its failure to timely seek verification, it could not now contest the validity of such assignment. Therefore, the plaintiff therein had standing to bring the action and the assignment was deemed to be valid.

There is, however, a vitally important difference between that case and this one. In Hospital for Joint Diseases, the assignment of benefits form was drawn to the benefit of the [*3]plaintiff “Hospital for Joint Diseases,” whereas in the present case the subject assignment of benefits form is drawn to the benefit of an entirely different entity than this plaintiff who now seeks to benefit from the assignment.

In that case, the Court of Appeals found the assignment cannot be assailed and must be deemed valid. In this case, in light of defendant’s failure to seek appropriate verification, I do not suggest that the subject assignment of benefits form was not valid. Quite the contrary, I accept its validity. Nevertheless, I take exception to the holding of the majority inasmuch as the “valid” assignment of benefits form does not inure to the benefit of the person who is prosecuting this claim, to wit: the named plaintiff herein, Dr. Albert Davydov, DDS, individually.

To overlook this important distinction would be to say that “John Jones,” the Chairman of the Board of the Hospital for Joint Diseases, could properly demand that Travelers Property and Casualty Insurance Company make payment to his personal account merely because the carrier chose not to seek a verification of an assignment made to the benefit of the Hospital for Joint Diseases.

This court should not discount the important distinction that the assignee and the claimant are two very different and independent entities simply because the individual plaintiff/claimant is Dr. Albert Davydov, DDS and the assignee is named Dr. Albert Davydov, DDS, P.C. I would suggest that Dr. Davydov himself would argue vociferously that he as an individual has no obligation to pay the debts or expenses that might be incurred by Dr. Albert Davydov, DDS, P.C. and vice versa. That would be his right, for which fault would not attend. However, since he has chosen to conduct his business affairs in a corporate status, he cannot now choose to prosecute the claims of that corporate entity in favor of himself individually.{**25 Misc 3d at 23}

There is only one assignee herein and that assignee is not the plaintiff.

Pesce, P.J., and Weston, J., concur; Golia, J., dissents in a separate memorandum.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered February 9, 2007, which granted plaintiff’s motion for summary judgment.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered February 9, 2007, affirmed, without costs.

In this action to recover first party no-fault benefits, defendant’s submission in support of its staged accident defense was insufficient to establish a “founded belief that the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co., 2009 NY Slip Op 50493[U] [2009]). To the extent that defendant purports to rely upon a policy exclusion, any such defense is precluded in view of defendant’s failure to timely deny the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 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 (Robert A. Bruno, J.), dated June 30, 2008, deemed from an amended order entered September 24, 2008 (see CPLR 5520 [c]). The amended order denied plaintiffs’ motion for summary judgment.

Amended order affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion. The District Court denied plaintiffs’ motion on the ground that the affidavit of plaintiffs’ billing manager was insufficient to satisfy the business records exception to the hearsay rule. This appeal by plaintiffs ensued.

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 (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]). Consequently, plaintiffs’ motion for summary judgment was properly denied.

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

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur. [*2]
Decision Date: June 29, 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 8, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that plaintiff did not make a prima facie showing of its entitlement to judgment
as a matter of law. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s billing manager failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. This appeal by plaintiff ensued.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed 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]; 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 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 July 2, 2008. The order denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by providing that defendant’s cross motion for summary judgment is denied; as so modified, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that plaintiffs had failed to lay a foundation for the admission, as business records, of the documents annexed to their motion and that plaintiffs’ assignor had failed to appear for scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiffs ensued.

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ medical biller 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]). Consequently, plaintiffs’ motion for summary judgment was properly denied. [*2]

With regard to defendant’s cross motion for summary judgment, while defendant asserted that it had timely denied plaintiffs’ claims on the grounds that the assignor had failed to appear at scheduled EUOs and IMEs, defendant failed to establish by proof in admissible form that the assignor had not appeared for the EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant’s cross motion for summary judgment should have been denied.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 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, First District (Andrew M. Engel, J.), dated May 16, 2008. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion which sought to dismiss the complaint due to plaintiff’s failure to comply with defendant’s discovery demands, or, in the alternative, to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands.

Order, insofar as appealed from, modified by providing that the branch of defendant’s motion seeking to compel plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial and to compel plaintiff to respond to defendant’s combined discovery demands is granted to the extent of compelling plaintiff to produce the documents and information demanded in items 5, 6, 7 and 9 of defendant’s notice for discovery and inspection and to serve answers providing the information sought in questions 31, 32, 37, 38, 45 and 46 of defendant’s demand for verified written interrogatories, within 60 days of the order entered hereon, and by further compelling plaintiff to produce its owner, Valentina Anikeyeva, for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3126, based upon plaintiff’s failure to comply with discovery, or, in the alternative, pursuant to CPLR 3124, to compel plaintiff to respond to its demand for written interrogatories, to produce the documents requested in its demand for discovery and inspection, and to compel plaintiff to produce its owner, Valentina Anikeyeva, to appear for an examination before trial (EBT). Defendant acknowledged receipt of plaintiff’s [*2]responses to its discovery demands, which plaintiff had served more than 18 months after service of defendant’s discovery demands, but claimed that plaintiff’s answers were either insufficient or unresponsive. Defendant specifically alleged that plaintiff had failed to give meaningful responses to questions 31, 32, 36, 37, 38, 45 and 46 of its demand for verified written interrogatories, and to items 5, 6, 7, 8 and 9 of its demand for discovery and inspection. Defendant also asserted that it was entitled to an EBT of plaintiff’s owner, Valentina Anikeyeva. Plaintiff opposed the motion, arguing that its responses were proper, and that defendant had failed to demonstrate that plaintiff’s owner’s EBT would lead to any relevant information that could not be adequately addressed in plaintiff’s responses to the interrogatories. The District Court denied so much of defendant’s motion as sought to dismiss the complaint based on plaintiff’s failure to comply with defendant’s discovery demands, and, to the extent that defendant raised specific objections to plaintiff’s responses to its discovery demands, the District Court denied the branch of defendant’s motion which sought, in the alternative, to compel such responses. The District Court also denied the branch of defendant’s motion seeking to compel Ms. Anikeyeva to appear for an EBT on the ground that defendant failed to demonstrate any genuine need for same. The instant appeal by defendant ensued.

Plaintiff was required, but failed, to challenge the propriety of defendant’s notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122. Likewise, plaintiff failed to timely object to defendant’s demand for verified written interrogatories. As a result, plaintiff is obligated to produce the information sought 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]; Garcia v Jomber Realty, 264 AD2d 809 [1999]; 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]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [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]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

To the extent defendant’s discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not timely object thereto (see A.B. Med. Servs. PLLC, 11 Misc 3d 71). However, defendant seeks discovery, inter alia, to support its defense that plaintiff 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. As a result, discovery of, among other things, the contract between plaintiff and its management company, if any, and the agreement pursuant to which plaintiff occupied its premises, is not palpably improper, and plaintiff did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 5, 6 and 7 of its notice for discovery and inspection and to answers providing the information sought in questions 31, 32, 38, 45 and 46 of its demand for verified written interrogatories (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]). [*3]

In addition, we find that special circumstances exist which warrant the disclosure of plaintiff’s corporate income tax returns (see CPLR 3101 [a]; Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; 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 One Beacon Ins. Group, LLC, 54 AD3d 738; 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 also entitled to the documents demanded in item number 9 of its notice for discovery and inspection and to the answer sought in question 37 of its demand for verified written interrogatories.

Contrary to the District Court’s conclusion, defendant was not required to show, as a prerequisite to an EBT of Ms. Anikeyeva, that plaintiff’s responses to its demand for written interrogatories were inadequate. “The CPLR does not set forth any order of priority as to the use of the various disclosure devices. A party is generally free to choose both the discovery devices it wishes to use and the order in which to use them” (Edwards-Pitt v Doe, 294 AD2d 395, 396 [2002]). Accordingly, defendant was entitled to conduct such EBT notwithstanding the fact that it had also served plaintiff with other discovery demands (see CPLR 3102; Woods v Alexander, 267 AD2d 1060, 1061 [1999]; Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276 [1985]; JMJ Contract Mgt. v Ingersoll-Rand Co., 100 AD2d 291, 293 [1984]; Great Wall Acupuncture, P.C. v General Ass. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]). Moreover, since defendant is asserting a Mallela defense, it was entitled to such an EBT (see Corona Heights Med. P.C. v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 134[A], 2008 NY Slip Op 52185[U] [App Term, 2d & 11th Jud Dists 2008]; see also Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co, 2 Misc 3d 347, 353 [Civ Ct, Queens County 2003] [“Depositions in certain cases under the no-fault laws, for example, may be helpful in detecting instances of fraud”]).

To the extent that defendant also sought to compel production of the personal federal and state income tax returns of Ms. Anikeyeva, defendant failed to establish its entitlement to such documents since “[i]t 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). As a result, at this juncture, defendant failed to meet its burden of establishing that Valentina Anikeyeva’s personal income tax returns were properly discoverable, particularly where, as here, defendant is entitled to disclosure of plaintiff’s income tax returns and the requested financial information with respect to said corporation (see Midwood Acupuncture, P.C., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U]; Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, we modify the order of the District Court to the extent indicated above.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 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 (Gary Franklin Knobel, J.), dated June 23, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for, inter alia, summary judgment dismissing the complaint on the ground, among others, that defendant did not receive the claim forms upon which plaintiff seeks to recover. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. The instant appeal by plaintiff ensued.

A provider establishes its prima facie entitlement to summary judgment by proof that it submitted a claim, 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]). Submission of the claim form is usually established by demonstrating proof of proper mailing, which gives rise to the presumption that the claim form was received by the addressee. Such presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The affirmation of plaintiff’s “primary doctor and principal shareholder” was insufficient to establish actual mailing of the claim forms to defendant or that plaintiff had a standard office practice or procedure designed to ensure that items are properly addressed and [*2]mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Impulse Chiropractic, P.C. v Travelers Ins. Co., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2006]). Moreover, plaintiff’s attorney’s affirmation was not based on personal knowledge that the claims were actually mailed to defendant and, therefore, has no probative value (see Impulse Chiropractic, P.C., 14 Misc 3d 127[A], 2006 NY Slip Op 52469[U]). Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment and the District Court properly denied its motion.

Since plaintiff failed to prove that it mailed the subject claims to defendant and, in support of its cross motion for summary judgment dismissing the complaint, defendant established that it never received the claims from plaintiff, the District Court properly granted defendant’s cross motion (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]). We pass on no other issue.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 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 June 9, 2008. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff had failed to make out a prima facie case in that plaintiff had failed to prove the admissibility of the assignment of benefits form and that, in any event, defendant had denied plaintiff’s claim on the ground of lack of medical necessity. The District Court denied plaintiff’s motion for summary judgment, finding that the peer review report demonstrated the existence of a triable issue of fact as to medical necessity. This appeal by plaintiff ensued.

Defendant asserts that the affidavit submitted by plaintiff’s billing manager was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case. We note that, contrary to defendant’s contention, proof of the assignment of benefits form is not an element of plaintiff’s prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [*2][2004]).

In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed (e.g. 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]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dist 2007]).

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 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 (David Goodsell, J.), dated April 17, 2008. The order, insofar as appealed from, denied so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094.

Order, insofar as appealed from, reversed without costs, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 granted and matter remanded to the District Court for a calculation of statutory interest and an assessment of attorney’s fees due thereon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, supporting the motion with an affirmation from plaintiff’s counsel, an affidavit from plaintiff’s president and medical biller, and various documents. In opposition to the motion, defendant argued, inter alia, that summary judgment should be denied as to the bills at issue on this appeal because plaintiff’s attempt to recover upon said bills was premature due to the failure of plaintiff’s assignors to appear for properly noticed independent medical examinations (IMEs). In an order dated April 17, 2008, insofar as appealed from, the District Court denied so much of plaintiff’s motion as sought summary judgment upon said bills, on the ground that defendant had established that the assignors had failed to appear for IMEs.

On appeal, defendant asserts that the affidavit submitted by plaintiff’s president and [*2]medical biller was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Although defendant denied the bills at issue on the ground that plaintiff’s assignors failed to attend scheduled IMEs, the affidavits submitted by defendant were insufficient to establish proper mailing of the IME scheduling letters, which would give rise to a presumption that the items were received by the addressee (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant failed to establish that plaintiff’s assignors did not appear for IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, defendant failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In light of the foregoing, the order, insofar as appealed from, is reversed, so much of plaintiff’s motion as sought summary judgment with respect to bills totaling the sum of $9,094 is granted and the matter is remanded to the District Court for the
calculation of statutory interest and an assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).
Tanenbaum, J.P., and Molia J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an amended order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered May 4, 2007, which denied his motion for summary judgment.

Per Curiam.

Order (Manuel J. Mendez, J.), entered May 4, 2007, affirmed, with $10 costs.

Defendant’s NF-10 form, which stated that plaintiff’s no-fault claim was denied based on the results of an independent peer review, sufficiently apprised plaintiff of the factual basis for the denial (see 11 NYCRR 65-3.8[b][4]; New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 39 AD3d 832 [2007]). The initial peer review report relied upon by defendant, as amplified upon defendant’s receipt of additional documentation from plaintiff regarding his claim, set forth sufficient facts to raise a triable issue as to the medical necessity of the health services and diagnostic tests performed by plaintiff.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur

Decision Date: June 29, 2009