Decided on November 13, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 13, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Goldberg, Miller and Rubin, P.C. (Timothy R. Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018, deemed from a judgment of that court entered December 19, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 8, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,183.05.

ORDERED that the judgment is reversed, with $30 costs, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had established that there was no coverage for no-fault benefits since defendant had not issued an automobile insurance policy which would cover the underlying accident, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on December 19, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

“[A] lack of coverage defense may be raised without regard to any issue as to the [*2]propriety or timeliness of an insurer’s denial of claim form (see Zappone v Home Ins. Co., 55 NY2d 131, 135-136 [1982] [lack of coverage defense is not precluded]; see also Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). The papers submitted by defendant in support of its [ ] motion were sufficient to establish that the policy being sued upon was a workers’ compensation insurance policy which did not cover plaintiff’s claim to receive reimbursement of assigned first-party no-fault benefits. As plaintiff failed to demonstrate the existence of an applicable automobile insurance policy issued by defendant or to otherwise raise a triable issue of fact, [defendant’s motion for summary judgment should have been granted]” (Ultimate Health Prods., Inc. v Hereford Ins. Co., 51 Misc 3d 127[A], 2016 NY Slip Op 50367[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Flatbush Chiropractic, P.C. v Hereford Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51712[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is reversed, the order dated November 8, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered November 28, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by plaintiff A.C. Medical, P.C. is granted; as so modified, the order is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

With respect to plaintiff A.C. Medical, P.C. (ACM), defendant established that initial and follow-up letters scheduling an examination under oath (EUO) had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that ACM had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As ACM failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by ACM.

As to the remaining claims at issue which were submitted by plaintiff Vital Chiropractic, P.C. (Vital), defendant contends that its initial EUO scheduling letter tolled defendant’s time to pay or deny all of the claims at issue (see 11 NYCRR 65-3.5 [b]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), that the toll was maintained by timely follow-up scheduling letters (see 11 NYCRR 65-3-6 [b) and that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Upon a review of the record, we find that defendant’s motion failed to establish, as a matter of law, that defendant had timely denied Vital’s claims after Vital had failed to appear at both an initial and a follow-up EUO.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims submitted by plaintiff A.C. Medical, P.C. is granted.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Decided on November 13, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on November 13, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Office of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 25, 2018. The order denied defendant’s motion, pursuant to CPLR 4404 (b), to set aside a decision of that court dated June 23, 2017, made after a nonjury trial, and, in effect, a judgment of that court entered October 6, 2017, pursuant to the decision, awarding plaintiff the principal sum of $1,791.73.

ORDERED that the order is reversed, with $30 costs, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision dated June 23, 2017, and, in effect, the judgment entered October 6, 2017 pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether defendant’s denial of claim forms were timely. At the nonjury trial, defendant’s claim representative was prepared to testify that defendant had timely requested plaintiff’s assignor to appear for an examination under oath (EUO) and had denied the claims at issue within 30 days after conducting that EUO. After examining the denial of claim forms, the Civil Court concluded that the denials could not be timely, as they were based upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), but were mailed more than 30 days after that failure to appear. Therefore, without taking testimony from defendant’s witness, the Civil Court directed a verdict in plaintiff’s favor. Defendant timely [*2]moved, pursuant to CPLR 4404 (b) to set aside the Civil Court’s decision. On October 6, 2017, a judgment awarding plaintiff the principal sum of $1,791.73 was entered and, by order entered June 25, 2018, the Civil Court denied defendant’s motion. Defendant appeals.

As this court has held, where an insurer timely requests verification, its time to pay or deny a claim does not begin to run until it has received all of the requested verification, including the conducting of an EUO, and the insurer need not deny a claim while it is waiting for requested verification even if it already has a basis to deny such claim (see Parisien v Citiwide Auto Leasing, 64 Misc 3d 132[A], 2019 NY Slip Op 51050[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v American Tr. Ins. Co., 61 Misc 3d 138[A], 2018 NY Slip Op 51584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, the Civil Court’s holding that defendant was precluded from denying the claims based upon the assignor’s failure to appear for IMEs was erroneous. As no testimony was taken, the matter must be remitted to the Civil Court for a new trial.

Accordingly, the order is reversed, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court, and, in effect, the judgment entered pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint, found, in effect pursuant to CPLR 3212 (g), that the two claims “were both timely and properly mailed,” and stated that the “sole issue that remains for trial is the issue of fee schedule.”

ORDERED that the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) finding in plaintiff’s favor and the limitation of the trial to “the issue of fee schedule” are vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the grounds that there was a lack of medical necessity for the supplies at issue; that plaintiff had failed to submit its two claims within 45 days of the date that the supplies set forth therein had been provided; and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered October 16, 2018 as denied defendant’s motion, found, in effect pursuant to CPLR 3212 (g), that the two claims “were both [*2]timely and properly mailed,” and stated that “sole issue that remains for trial is the issue of fee schedule.”

On this record, we find that there are triable issues of fact as to whether the supplies at issue were medically necessary and whether the claims had been timely submitted to defendant (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, while defendant is not entitled to summary judgment dismissing the complaint on those grounds, there was no basis for the Civil Court to find that the claims had been “timely and properly mailed” to defendant or to limit the trial to “the issue of fee schedule” (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co., 30 Misc 3d 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant’s remaining contention lacks merit (see e.g. Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) finding in plaintiff’s favor and the limitation of the trial to “the issue of fee schedule” are vacated.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Goldberg, Miller & Rubin (Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018, deemed from a judgment of that court entered November 2, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 16, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,673.69.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered October 16, 2018 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 from an order of the Civil Court entered October 16, 2018 denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on November 2, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and that it had timely [*2]denied plaintiff’s claims on that ground (see 11 NYCRR 65-3.5 [o]). However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.

Accordingly, the judgment is reversed, so much of the order entered October 16, 2018 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 15, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

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 as denied its motion for summary judgment dismissing the complaint.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014, which claims defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact with respect to this branch of defendant’s motion.

Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services rendered on May 23, 2014 (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of plaintiff’s claims for services rendered April 17, 2014 through May 12, 2014 is granted.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.