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 July 18, 2007, deemed from a judgment of the same court entered May 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2007 order granting defendant’s motion seeking, in effect, summary judgment, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the subject claim forms, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to the motion was based upon W-2 tax forms for the treating providers, which identified plaintiff as their employer. Plaintiff’s owner stated in an affidavit that the treating providers were employees, and that while the submitted claim forms identified them as independent contractors, it was a typographical error. The Civil Court granted defendant’s motion, finding that “the bills indicated that the services in question were performed by independent contractors.” Plaintiff appeals, arguing that it raised an issue of fact as to the employment status of its treating providers and that defendant failed to verify their employment status or to issue timely denials of the claims. A judgment was subsequently entered.

Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]). Such a defense is [*2]nonprecludable (id.).

“[T]he claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 72 [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not submit bills that entitled it to payment, correction of the defect involved herein is not permitted once litigation has been commenced (A.M. Med. Servs., P.C., 22 Misc 3d 70). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 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 January 11, 2008, deemed from a judgment of the same court entered March 31, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 11, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,101.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion denied.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it had timely denied the claims on the ground that the supplies provided were not medically necessary. The Civil Court granted plaintiff’s motion, holding that defendant failed to establish that the verification requests which preceded defendant’s denials were properly issued, so that defendant’s denials were untimely. The instant appeal by defendant ensued. A judgment in favor of plaintiff was subsequently entered.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established the mailing of the claims in question since she stated that she had personally mailed the claims on February 10, 2005 (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York and Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff made out its prima facie entitlement to summary judgment. [*2]

However, the Civil Court erred in finding that defendant failed to properly toll the prescribed 30-day period, since the affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the verification requests by setting forth a detailed description of the standard office practice and procedure used to ensure that the verification requests were properly addressed and mailed (see Residential Holding Corp., 286 AD2d 679). For the same reason, the affidavit also established the timely mailing of defendant’s denial of claim forms (id.).

Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth different dates as the dates on which final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled. As a result, inasmuch as the affirmed peer review report was sufficient to demonstrate the existence of an issue of fact as to the medical necessity of the supplies plaintiff furnished, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 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 (Bonnie P. Chaikin, J.), entered June 18, 2008. The order denied plaintiff’s motion for summary judgment.

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, arguing, inter
alia, that the affidavit by plaintiff’s president and medical biller failed to make a prima facie showing of plaintiff’s entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, holding, inter alia, that plaintiff failed to establish its prima facie case. 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 president and medical biller failed to establish that the documents annexed to plaintiff’s 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, plaintiff’s motion for summary judgment was properly denied. We reach no other issue.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 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 (Bonnie P. Chaikin, J.), entered June 4, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served plaintiff with various discovery demands. Thereafter, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued that plaintiff did not make a prima facie showing of its entitlement to judgment as a matter of law. In addition, defendant asserted that plaintiff’s motion should be denied because plaintiff’s owner failed to appear for examinations under oath (EUOs) and because plaintiff failed to respond to defendant’s discovery demands, which sought information as to whether plaintiff was a fraudulently incorporated medical provider, and, thus, ineligible for reimbursement of no-fault benefits. 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.

We reach no other issue.

In light of the foregoing, the order is affirmed. [*2]

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 02, 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 11, 2008. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued, inter alia, that plaintiffs did not make a prima facie showing of their entitlement to judgment as a matter of law. The District Court denied plaintiffs’ motion and defendant’s cross motion, finding that defendant had failed to submit sufficient proof to support its defense that plaintiffs are fraudulently incorporated, but that discovery was outstanding. The court directed plaintiffs to provide the discovery demanded by defendant. Plaintiffs appeal from so much of the order as denied their motion for summary judgment.

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 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, albeit on other grounds.

In light of the foregoing, the order, insofar as appealed from, is affirmed. [*2]

Molia, J.P., Scheinkman and LaCava, JJ., concur.
Decision Date: June 02, 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 May 19, 2008. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment and defendant cross-moved for summary judgment. Insofar as is relevant to this appeal, the court denied plaintiffs’ motion on the ground that the affidavit submitted by plaintiffs’ medical biller was legally insufficient. 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.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur. [*2]
Decision Date: June 02, 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 (Genine D. Edwards, J.), entered March 27, 2008. The order denied defendant’s motion to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to accept its late answer or, in the alternative, for leave to extend its time to serve the answer. The Civil Court denied the motion on the ground that defendant had failed to demonstrate both a reasonable excuse for the default as well as a meritorious defense. This appeal by defendant ensued.

Defendant’s contention that plaintiff should be compelled to accept its answer because plaintiff did not reject the answer within two days of its receipt, as mandated by CPLR 2101 (f), is without merit. Although a plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness, precluding entry of a default judgment (see e.g. AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 138[A], 2007 NY Slip Op 50263[U] [App Term, 2d & 11th Jud Dists 2007]), a review of the record in the instant case demonstrates that plaintiff made its application for leave to enter a default judgment long before it was in receipt of the answer. Once plaintiff made said application, it thereby objected to defendant’s failure to serve a timely answer, brought that objection to the attention of defendant and the court, and therefore cannot be deemed to have waived any objection to untimeliness (see [*2]Katz v Perl, 22 AD3d 806 [2005]).

We note that a default judgment had already been entered against defendant when it moved to compel the acceptance of its answer or, in the alternative, to extend its time to serve the answer pursuant to CPLR 3012 (d). Accordingly, defendant should have instead moved to vacate the default judgment, pursuant to CPLR 5015 (a). In either situation, however, a defendant is required to establish both a reasonable excuse for the default and a meritorious defense (see Juseinoski v Board of Educ. of the City of New York, 15 AD3d 353 [2005]) and, in the case at bar, defendant failed to do so.

While a court may, in the exercise of its discretion, accept a claim of law office failure as a reasonable excuse (see CPLR 2005), defense counsel was required to “submit supporting facts in evidentiary form sufficient to justify the default” (Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]), and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]). The mere statement in defense counsel’s affirmation in support of the motion that his office failed to timely process the summons and complaint “due to clerical inadvertence,” and that law office failure was excusable, did not establish a reasonable excuse for the default (see Ave T MPC Corp. v Chubb Indem. Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51681[U] [App Term, 2d & 11th Jud Dists 2008]).

Because we find that defendant did not establish a reasonable excuse for the default, it is unnecessary for us to address whether defendant demonstrated a meritorious defense.

Accordingly, the order is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 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 (Margaret A. Pui Yee Chan, J.), entered March 25, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal by plaintiff ensued.

A review of the record indicates that the affidavit of defendant’s claims representative failed to demonstrate defendant’s prima facie entitlement to summary judgment dismissing the complaint due to a lack of medical necessity. Defendant’s supporting affidavit stated that defendant did not receive the claims at issue prior to the commencement of the action while, at the same time, stating that it received the claims on specified dates prior to the commencement of the action and thereafter timely denied same. In view of the foregoing inconsistency, defendant’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: May 28, 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 March 13, 2008. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, finding that the affidavit plaintiff submitted in support of the motion was insufficient to lay a foundation for the admission, as business records, of the documents annexed to its moving papers. The court granted defendant’s cross motion for summary judgment dismissing the complaint, holding that defendant established the lack of medical necessity for the supplies provided, and noting that “[p]laintiff did not file any opposition to rebut defendant’s evidence.” As limited by its brief, plaintiff appeals from so much of the order as denied its motion for summary judgment, arguing that its motion papers demonstrated a prima facie entitlement to summary judgment.

Inasmuch as plaintiff does not offer any argument as to why this court should reverse the portion of the order which granted defendant’s cross motion for summary judgment, we need not reach the only issue raised by plaintiff, i.e., whether plaintiff established its prima facie entitlement to summary judgment, since the ultimate outcome of the case would, in any event, [*2]not be altered.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: May 28, 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 December 20, 2007. The order denied defendant’s motion to vacate the notice of trial and certificate of readiness.

Order reversed without costs and defendant’s motion to vacate the notice of trial and certificate of readiness granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in September 2005, was accompanied by notices to take deposition upon oral examination and various other discovery demands. After plaintiff served a notice of trial and certificate of readiness in October 2007, defendant moved
to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. The Civil Court denied defendant’s motion on the ground of laches due to the passage of time between the service of defendant’s discovery demands and the date on which plaintiff served its notice of trial. This appeal by defendant ensued.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery was completed or waived (see Savino v Lewittes, 160 AD2d 176 [1990]; First Aid Occupational [*2]Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). As it is undisputed that plaintiff never appeared for a deposition in this action despite being served with a notice to take deposition upon oral examination, or complied with the other discovery demands, the notice of trial and certificate of readiness should be vacated (see Great Wall Acupuncture, P.C., 21 Misc 3d at 47).

We further note that the doctrine of laches does not warrant denial of defendant’s motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 27, 2009