SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated November 1, 2006. The order denied defendant’s motion to dismiss the complaint and awarded plaintiff $50 in costs.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel the appearance for deposition of, among others, plaintiff’s treating physician. The court granted the motion to the extent that plaintiff was ordered to provide the treating physician by a date certain. The order further provided that the court would dismiss the complaint if plaintiff failed to comply with the order. Defendant then served a notice for deposition, dated April 7, 2006, for a deposition scheduled for April 12, 2006 at 3:00 P.M. The deposition did not go forward, and defendant moved for an order, pursuant to the prior order, to dismiss the complaint. Defendant now appeals from the order denying its motion to dismiss the complaint and awarding plaintiff $50 in costs.

In support of defendant’s motion to dismiss the complaint, defendant did not offer the affidavit of a person with personal knowledge of the facts. The affirmation by defendant’s attorney, stating that plaintiff failed to produce plaintiff’s physician for the deposition, was not based on personal knowledge of the facts which he alleged, and, as such, is based upon unsubstantiated hearsay and has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Said v Abarn Equip. Corp., 195 Misc 2d 451, 452 [2002]). Accordingly, defendant’s motion was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Inc. Co., 35 AD3d 720 [2006]). [*2]

With respect to the court’s award to plaintiff of costs in the sum of $50, we note that CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was not an improvident exercise of the court’s discretion (see e.g. Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered September 15, 2006. The order granted defendant’s motion for a protective order striking plaintiff’s notice to admit.

Order modified by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 of plaintiff’s notice to admit; as so modified, affirmed without costs, and defendant is directed to respond to items 1, 2, 3, 5 and 6 of the notice to admit within 20 days after service upon it of a copy of the order entered hereon, with notice of entry.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for a protective order striking plaintiff’s notice to admit. The court below granted defendant’s motion in its entirety, and this appeal by plaintiff ensued.

“The supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed” (Lolly v Brookdale Univ. Hosp. & Med. Ctr., 45 AD3d 537, 537 [2007]). “Through the use of a notice to admit, a party can request another party to admit stated facts or the genuineness of a document, where the party requesting the admission reasonably believes there can be no substantial dispute at the trial. . . and [where the matters] are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry'” (Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007], quoting CPLR 3123 [a]).

In the instant case, the admissions sought by plaintiff in items 1 and 3, regarding the genuineness of defendant’s NF-10 denials, are proper in light of this court’s decision in Bajaj v General Assur. (id.). Similarly, no protective order is necessary with regard to the admissions [*2]sought by plaintiff in items 2, 5 and 6, that there has been no payment made with regard to a particular bill and that defendant received the two claim forms referenced in the attached denials, because these admissions had already been made by defendant in the attached denial of claim forms. In view of the foregoing, it was an improvident exercise of the lower court’s discretion to grant defendant’s motion for a protective order striking items 1, 2, 3, 5 and 6 of plaintiff’s notice to admit.

Item 4, seeking an admission that a sum remains outstanding, is improper in that it is imprecisely worded and could be read as a conclusion of an ultimate fact (see Villa v New York City Hous. Auth., 107 AD2d 619 [1985]). Item 7 seeks an admission that defendant received an attached claim form on or about a specified date, which fact defendant had not previously acknowledged through its issuance of a statutory denial of claim form. In the absence of such prior acknowledgment by defendant, that defendant received such claim form is “an ultimate or conclusory fact which [is] an integral part of the plaintiff’s prima facie case”, and should not be determined on the basis of a notice to admit (Scavuzzo v City of New York, 47 AD3d 793, 795 [2008]; see e.g. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Upon our review of the record and the arguments raised on appeal, we do not find that it was an improvident exercise of the lower court’s discretion to strike item 8 of plaintiff’s notice to admit, seeking an admission that defendant received plaintiff’s assignment of benefits on or about a specified date (see Lolly, 45 AD3d at 537).

Accordingly, we modify the order by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 in plaintiff’s notice to admit.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 9, 2006. The order, insofar as appealed from, granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order compelling examinations before trial of plaintiff, plaintiff’s assignor and plaintiff’s assignor’s treating physician, and plaintiff cross-moved for a protective order. The court below granted defendant’s motion to the extent of ordering plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denied plaintiff’s cross motion for a protective order. The instant appeal by plaintiff ensued.

CPLR 3101 (a) provides that “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The court has broad discretion in determining what is material and necessary (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), and “the burden of establishing any right to protection [from disclosure] is on the party asserting it . . .” (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377 [1991]).

In the instant case, the bald conclusory assertion by plaintiff’s counsel that an examination before trial of the assignor’s treating physician would be useless in proving defendant’s defense was insufficient to establish plaintiff’s entitlement to a protective order (see Dynamic Med. Communications v Norwest Trade Printers, 257 AD2d 524 [1999]; Ocean to [*2]Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265 [1988]; Boylin v Eagle Telephonics, 130 AD2d 538 [1987]). Accordingly, the court below did not improvidently exercise its discretion in granting defendant’s motion to the
extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denying plaintiff’s cross motion for a protective order.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered July 7, 2006. The order denied plaintiff’s motion for summary judgment.Order affirmed without costs.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see Insurance Law § 5106 [a]; Mary
Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers, acknowledged receipt of the claim on December 30, 2004, both in the affidavit of defendant’s claims representative as well as in its denial of claim form, the deficiency in plaintiff’s moving papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition, defendant established that it timely denied plaintiff’s claim on the ground of lack of medical necessity (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant’s opposing papers sets forth a
sufficient factual basis and medical rationale to demonstrate the existence of an issue of fact as to medical necessity (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], [*2]2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]), plaintiff’s motion for summary judgment was properly denied (id.).

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 29, 2008

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 (Valerie J. Bullard, J.), dated May 8, 2006. The order denied plaintiff’s 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 dismissing the complaint is denied; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered May 8, 2006, the court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s owner was insufficiently specific to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see 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.

The court erred in granting defendant’s cross motion for summary judgment dismissing the complaint because there is an issue of fact as to whether defendant’s denial of claim form was [*2]timely. Although defendant contends that its denial of claim form was timely because it was issued within 30 days of being received at the proper claims processing office (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), its affiant did not set forth facts sufficient to prove that the address plaintiff used was the improper address. As a result, defendant failed to demonstrate that the 30-day claim determination period was extended and, therefore, failed to establish its prima facie entitlement to summary judgment. We do not pass on the issue of medical necessity. Accordingly, defendant’s cross motion for summary judgment dismissing the complaint is denied.

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: April 29, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered September 8, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, asserting that it timely denied plaintiff’s claim on the ground that the services provided were not medically necessary based on a peer review report. The court below denied plaintiff’s motion for summary judgment, and the instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to defendant’s standard office practice and procedure (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; 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]; see also New York & Presbyterian Hospital v AIU Ins. Co., 20 AD3d 515 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Defendant’s papers submitted in opposition to plaintiff’s motion for summary judgment, which included a peer review report, were sufficient to demonstrate the existence of an issue of fact with respect to the defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]). Accordingly, the order denying plaintiff’s motion for summary judgment is affirmed, [*2]albeit on other grounds.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 25, 2006. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to vacate the default judgment entered against it.

Order, insofar as appealed from, reversed without costs and defendant’s motion to vacate the default judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant failed to submit opposition. The court granted plaintiff’s motion, and plaintiff entered judgment pursuant thereto. Defendant moved to vacate the judgment, arguing that it was improperly entered
as plaintiff failed to comply with CPLR 3215 (f). The court below granted defendant’s motion. This appeal by plaintiff ensued.

Inasmuch as the judgment was entered pursuant to an order that granted plaintiff’s motion for summary judgment upon defendant’s failure to oppose same, CPLR 3215 is inapplicable. To the extent defendant’s motion sought vacatur pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate both a reasonable excuse for its default and a meritorious defense to the action (see Nurse v Figeroux & Assoc., 47 AD3d 778 [2008]). The record reveals that defendant failed to demonstrate that it has a meritorious defense to plaintiff’s action, since defendant did not show that its proffered defenses were set forth in timely denial of claim forms such that defendant is not precluded from interposing such defenses (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]) or that defendant possessed a defense which was not [*2]subject to preclusion (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). In light of the foregoing, defendant’s motion to vacate the judgment should have been denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 27, 2006. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant, the court below denied plaintiff’s motion for summary judgment on the ground that there was an issue of fact as to medical necessity. This appeal by plaintiff ensued.

Contrary to defendant’s contention, plaintiff established its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, 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]). The burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The peer review reports submitted by defendant in support of its defense that the services rendered were not medically necessary are illegible. Thus, defendant failed to demonstrate the existence of a triable issue of fact as to medical necessity (see generally West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 24, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered March 14, 2006, deemed from a judgment entered May 12, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 14, 2006 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,458.29.

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

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment, and a judgment was subsequently entered pursuant thereto.

On appeal, defendant contends that, in an action brought by defendant herein against health care providers including plaintiff herein, Justice Kenneth Davis of the Nassau County Supreme Court enjoined, inter alia, plaintiff herein, from commencing suit against defendant to recover no-fault benefits during the pendency of the action. Accordingly, defendant argues that the summary judgment motion herein was improperly made. Upon a review of the orders issued by Justice Davis appended to opposition papers below, we agree that the injunction barred the motion.

Accordingly, the judgment is reversed, the order granting summary judgment is vacated and plaintiff’s motion for summary judgment is denied without prejudice.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered October 19, 2006. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, the court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. The instant appeal by defendant ensued in which the sole issue raised involves the granting of plaintiff’s motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s corporate officer, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & [*2]11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment is denied.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 21, 2008