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Supreme Court, Appellate Term, Second Department, September 14, 2007

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Darya Klein of counsel), for appellant. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**17 Misc 3d at 41} OPINION OF THE COURT

Memorandum.

{**17 Misc 3d at 42}Order affirmed without costs and, upon searching the record, summary judgment granted to defendant dismissing plaintiff’s cause of action with respect to those portions of plaintiff’s claims seeking reimbursement of the unpaid balance of 23 acupuncture sessions conducted between February 9 and April 4, 2004.

In an action to recover assigned first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a 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]). While defendant asserted that plaintiff did not prove a prima facie case because plaintiff, a provider of acupuncture services performed by a licensed acupuncturist, did not demonstrate that the fees it charged were within the prevailing fees for acupuncture services performed by a licensed acupuncturist in plaintiff’s geographic location (see 11 NYCRR 68.5 [b]), such contention lacks merit since plaintiff’s prima facie case does not require such a showing. Accordingly, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to plaintiff’s motion for summary judgment, which sought to recover on four claims submitted to defendant with respect to 30 sessions of acupuncture performed from February 9 through May 12, 2004, defendant sufficiently demonstrated that it timely mailed the [*2]denial of claim forms at issue based upon its standard office practice or procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff was not entitled to summary judgment on the claims pertaining to the seven sessions of acupuncture conducted from April 7 through May 12, 2004, which were denied based upon the results of an independent medical examination, since defendant’s papers were sufficient to demonstrate the existence of an issue of fact with respect to defendant’s defense of lack of medical necessity (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

Defendant’s opposing papers also demonstrated that defendant denied reimbursement for the unpaid balance of the remaining 23 acupuncture sessions conducted between February 9 and April 4, 2004 on the ground that the fees charged by{**17 Misc 3d at 43} plaintiff exceeded the “maximum allowance under the applicable fee schedule[s].” We agree that it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount to which plaintiff was entitled upon the subject 23 sessions (Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, there is no merit to plaintiff’s assertion that because the fees charged were reasonable and were within the range of prevailing fees for licensed acupuncturists in the geographic area in which plaintiff operated, defendant should have paid the entire amount for these 23 sessions (id.; see also Ops Gen Counsel NY Ins Dept, No. 04-10-03 [Oct. 2004]).

Further, since it is undisputed that defendant has fully paid plaintiff $673.90 for the 23 acupuncture sessions, the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing plaintiff’s cause of action to the extent that it seeks additional reimbursement for the 23 acupuncture sessions (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).

Rios, J. (concurring in the result in the following memorandum). I am constrained to concur based upon the majority holding in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., and Belen, J., concur; Rios, J., concurs in a separate memorandum.

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 (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,340.30 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff. In our opinion, the order should be modified as indicated above for the reasons set forth in Multiquest, P.L.L.C. v Allstate Ins. Co. ( Misc 3d , 2007 NY Slip Op [No. 2006-312 Q C], decided herewith).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 12, 2007

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 (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,236.99 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff.

CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings. Without such pleadings, unless the record is sufficiently complete (Greene v Wood, 6 AD3d 976 [2004]), the motion is procedurally defective (Wider v Heller, 24 AD3d 433 [2005]), and the court may deny it even in the absence of a party raising the objection (see General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]). Accordingly, we conclude that, under the circumstances presented, the matter should have been denied without prejudice to renewal upon proper papers (see Wider v Heller, 24 AD3d 433, supra). In view of the foregoing, we do not reach the parties’ contentions with regard to the merits of the motion (see id.).

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: September 12, 2007

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 (Joseph Esposito, J.), entered December 6, 2005. The order denied defendant’s motion for summary judgment.

Order modified by providing that the motion is denied without prejudice to renewal upon proper papers; as so modified, affirmed without costs.

Plaintiff brought the instant action to recover $1,236.99 in assigned first-party no-fault benefits. Defendant moved for summary judgment and the court denied the motion for failure to support it with a copy of the pleadings, a ground not raised by plaintiff. In our opinion, the order should be modified as indicated above for the reasons set forth in Multiquest, P.L.L.C. v Allstate Ins. Co. ( Misc 3d , 2007 NY Slip Op [No. 2006-312 Q C], decided herewith).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 12, 2007

[*1]

Supreme Court, Appellate Term, Second Department, September 12, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Belesi & Conroy, P.C., Garden City (Matthew J. Conroy of counsel), for respondent.

{**17 Misc 3d at 38} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order entered December 8, 2005 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment granted.

In this action by a provider to recover first-party no-fault benefits for an August 17, 1999 psychological evaluation of its assignor, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment arguing, inter alia, that plaintiff was ineligible to receive reimbursement of no-fault benefits because plaintiff was fraudulently incorporated, relying on State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). Finding, inter alia, that the defense of “improper incorporation” was waived because defendant failed to assert the defense in its denial of claim form or in its answer, the court below awarded plaintiff summary judgment.

As defendant raises no issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with [*2]respect thereto.

A regulation which took effect in 2002, after the services at issue herein were provided, states, “A provider of health care services is not eligible for reimbursement under section{**17 Misc 3d at 39} 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). This regulation has been held to bar reimbursement of no-fault benefits without regard to when the services were rendered (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d & 11th Jud Dists 2006]). Such a defense is not waived by the failure to assert it in a denial of claim form (Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]) nor is it precluded as a result of an untimely denial (Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]). Contrary to the determination of the court below, the defendant’s answer, as amended by order dated September 9, 2005, asserted the defense that plaintiff was “not entitled to receive payment as it was not properly formed in that it failed to meet the applicable New York State and local licensing requirements necessary to perform such services in New York.” We note in passing that even if defendant had failed to interpose the defense in its answer, a court may nevertheless grant a motion for summary judgment based on an unpleaded defense (Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]) where, as here, plaintiff did not assert any surprise or prejudice thereby (Ingordo v Square Plus Operating Corp., 276 AD2d 528 [2000]) and had “ample opportunity” to contest the defense in its opposition to the motion (Cangialosi v Hallen Constr. Corp., 282 AD2d 565, 566 [2001]; Lynbrook Glass & Architectural Metals Corp. v Elite Assoc., 225 AD2d 525, 527 [1996]).

Although Mallela involved a provider which was a professional service corporation (see Business Corporation Law art 15) and the instant plaintiff is a professional service limited liability company (see Limited Liability Company Law art 12), the requirements of membership, professional licensing, and filing are substantially the same. As a result, 11 NYCRR 65-3.16 (a) (12) clearly applies to professional service limited liability companies. Limited Liability Company Law § 1203 (b) requires that a member of such a company be licensed for any professional services the company is organized to provide. There is no dispute that plaintiff’s articles of organization stated that the company was to provide, inter alia, psychological services and{**17 Misc 3d at 40} listed a licensed psychologist as the provider of those services. However, the named psychologist testified under oath that she was never an owner or member of plaintiff and that she never received a stock certificate or any compensation based on an ownership interest.

Defendant also proved that plaintiff’s ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist, and no other, continued to be listed as a member and manager of plaintiff. Not only was the foregoing sufficient to defeat plaintiff’s motion for summary judgment, it also satisfied defendant’s burden of proof on its cross motion for summary judgment by demonstrating that plaintiff performed psychological services in violation of Limited Liability Company Law §§ 1203 and 1207.

Plaintiff did not dispute this proof, but sought to excuse any violation of the statute by proffering a hearsay affidavit of a person who purported to relate the nonfraudulent intentions of [*3]plaintiff’s original owner. Even if the affidavit presented a reasonable excuse for the failure to obtain an affidavit from plaintiff’s original owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]; cf. Oddo v Edo Mar. Air, 34 AD3d 774 [2006]), it failed to excuse the initial fraudulent act of listing the psychologist as a member and manager of plaintiff or plaintiff’s continuing to so list the psychologist through successive changes of ownership including the period when the services herein were provided. Consequently, defendant was entitled to summary judgment upon its cross motion (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005], supra; Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006], supra).

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

Pesce, P.J., Rios and Belen, 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, Queens County (Timothy J. Dufficy, J.), entered May 4, 2006, deemed an appeal from a judgment entered June 21, 2006 (see CPLR 5501 [c]). The judgment, entered upon the May 4, 2006 order which granted plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $3,302.30.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it timely denied plaintiff’s claims based upon the failure of plaintiff’s assignor to appear for independent medical examinations. The court granted plaintiff’s motion, holding that defendant
failed to establish that the denial of claim forms were timely mailed. Thereafter a judgment was entered.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. While defendant denied these claims based upon the assignor’s failure to appear for scheduled independent medical examinations, defendant did not submit an affidavit from someone with personal knowledge regarding the assignor’s failure to appear. As a result, defendant failed to raise a triable issue of fact with [*2]regard to said claims (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; First Help Acupuncture, P.C. v Progressive Northeastern Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51167[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the judgment is affirmed, albeit on other grounds.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal, as limited by the brief, from so much of an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered April 14, 2006, as granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment, deemed an appeal from a judgment entered May 30, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 14, 2006 order, awarded plaintiff the principal sum of $1,146.80.

Judgment affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment upon the six claims it submitted to defendant was granted to the extent of awarding plaintiff summary judgment upon five of the claims which totaled $1,146.80. After defendant filed its notice of appeal, a judgment was entered upon these five claims. Pursuant to CPLR 5501 (c), we deem defendant’s appeal to be from the judgment.

Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto. In opposition to plaintiff’s motion for summary judgment, defendant submitted, inter alia, an accident analysis report accompanied by an affidavit of the technical consultant/accident reconstructionist who prepared the report in an attempt to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s [*2]assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since the affidavit proffered by defendant did not comply with CPLR 2309 (c), which fact was duly objected to by plaintiff in the court below, the affidavit was not in admissible form (see CPLR 2309 [c]; Bath Med. Supply, Inc. v Allstate Indem. Co., 13 Misc 3d 142[A], 2006 NY Slip Op 52273[U] [App Term, 2d & 11th Jud Dists]; see also Jenkins v Diamond, 308 AD2d 510 [2003], citing Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Consequently, defendant failed to introduce competent evidence establishing that it possessed a founded belief that the alleged injuries did not arise out of an insured incident (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]; cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply Inc. v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 131[A], 2006 NY Slip Op 51051[U] [App Term, 2d & 11th Jud Dists]).

Defendant’s constitutional challenge to CPLR 2309 (c) is not reviewable as defendant failed to give the requisite statutory notice to the Attorney General (see Executive Law § 71; CPLR 1012; Estate of Marone v Chaves, 306 AD2d 372 [2003]; Matter of Lee P.S. v Lisa L., 301 AD2d 606 [2003]; Robert Fiance Hair Design Inst. v Concourse Props. Co., 130 AD2d 564 [1987]).

To the extent plaintiff requests that we search the record and award it summary judgment upon its remaining claim for $473.20, plaintiff’s entitlement to summary judgment upon this claim is not before us since said claim is not brought up for review on defendant’s appeal from the judgment, and plaintiff did not appeal from so much of
the order as denied its motion for summary judgment upon such claim (see CPLR 5501 [a] [1]).

In light of the foregoing, the judgment is affirmed.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 6, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award.
However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered April 6, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award.
However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 1, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed with $25 costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: September 04, 2007