Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Offices 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 (Richard J. Montelione, J.), entered October 9, 2018. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action are denied; 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 from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action, and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Defendant correctly argues that it submitted sufficient proof to demonstrate, prima facie, that it had not received the claim forms underlying plaintiff’s second and third causes of action. However, the affidavit of plaintiff’s billing administrator was sufficient to raise an issue of fact as to whether those claim forms had been mailed to defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, there is an issue of fact as to whether defendant had received the claims at issue (see Parisien v Travelers Ins. Co., 65 Misc 3d [*2]154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the second and third causes of action are denied.

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

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

Decided on November 13, 2020

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

Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb and Selina Chin of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered August 1, 2018. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order entered August 1, 2018, the Civil Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim form, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).

Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Picciano & Scahill, P.C. (Matthew Sledzinski of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 26, 2018. The judgment, entered pursuant to an order of that court entered May 10, 2016 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 10, 2016 as granted defendant’s motion seeking to dismiss the complaint is vacated and defendant’s motion is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, on April 10, 2015, the parties entered into a stipulation in which plaintiff agreed to serve verified responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days. In July 2015, defendant moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide the agreed-upon discovery. By order entered May 10, 2016, the Civil Court granted defendant’s motion. A judgment dismissing the complaint was entered on April 26, 2018.

Although a court may strike the “pleadings or parts thereof” (CPLR 3126 [3]) as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose [*2]information which the court finds ought to have been disclosed [upon notice]” (CPLR 3126 [3]), “the drastic remedy of striking [a pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 726-727 [2008] [internal quotation marks and citation omitted]; accord Laskin v Friedman, 90 AD3d 617, 617-618 [2011]; see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]). Here, defendant could not show that plaintiff had failed to comply with a court order, as no such order had ever been entered, and defendant further did not make a clear showing that the alleged failure of plaintiff to comply with defendant’s discovery demands and the parties’ stipulation was willful, contumacious or in bad faith. As a result, the Civil Court improvidently exercised its discretion in granting defendant’s motion to strike plaintiff’s complaint (see Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 35 Misc 3d 147[A], 2012 NY Slip Op 51064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is reversed, so much of the order entered May 10, 2016 as granted defendant’s motion seeking to dismiss the complaint is vacated and defendant’s motion is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of this decision and order.

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

Goldberg, Miller & Rubin, P.C. (Matthew Lavoie and 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 (Odessa Kennedy, J.), entered September 12, 2018, deemed from a judgment of that court entered October 11, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 12, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,900.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s 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 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). A judgment was subsequently entered on October 11, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been [*2]timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).

Defendant’s remaining contention lack merit.

Accordingly, the judgment is reversed, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov 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 August 24, 2018. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

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. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered August 24, 2018 as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment [*2]upon those claims with respect to assignor Noemi Oyala.

The branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 was based upon the defense that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The record establishes that defendant demonstrated that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule for the services billed under CPT codes 97813 and 97814 for acupuncture services that plaintiff had rendered after April 1, 2013. As a result, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 should have been granted (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]; Jing Luo Acupuncture, P.C. v NY City Tr.Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

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