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 (Eileen Nadelson, J.), entered September 28, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant concedes receipt of the claim forms which are the subject of this action. Defendant’s contention that plaintiff failed to establish its prima facie case because plaintiff did not demonstrate the existence of an authenticated assignment is without merit as “the lack of authentication of the assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory or regulatory requirement for the same” (A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14, 16 [App Term, 2d & 11th Jud Dists 2005]). Since plaintiff established a prima facie case, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant’s opposing papers indicate that defendant mailed assignor a request that she appear for pre-claim independent medical examinations (IMEs), that assignor received the scheduling notice and failed to appear, that defendant timely sent (11 NYCRR 65-3.6 [b]), and assignor received, a follow-up IME scheduling notice, and that assignor again failed to appear. This proof sufficed to warrant the motion’s denial (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Rios and Belen, JJ., concur. [*2]
Decision Date: February 26, 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, Kings County (Robin S. Garson, J.), entered May 27, 2005. The order denied the petition to vacate a master arbitrator’s award.

Order 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 the petitioner’s claim for first-party no-fault benefits (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). 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]).

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: February 26, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated January 30, 2006, which granted plaintiff’s motion for a directed verdict.

PER CURIAM

Order (Raul Cruz, J.), dated January 30, 2006, reversed, without costs, motion denied, and matter remanded for trial.

In this action to recover assigned, first party no-fault benefits, plaintiff moved to preclude defendant’s expert’s testimony on the ground that the expert did not personally undertake the peer review underlying defendant’s denial of the two claims here at issue. This was error, since the expert would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report (see generally General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). Nor is defendant’s expert precluded from testifying because his opinion is based, at least in part, on his review of the assignors’ medical records. Plaintiff may not be heard to challenge the reliability of the assignors’ medical records and reports, which, in response to defendant’s verification requests, were affirmatively relied upon by plaintiff as proof of claim.

This constitutes the decision and order of the court. [*2]
Decision Date: February 26, 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, Kings County (Eileen Nadelson, J.), entered December 19, 2005. 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 to recover assigned first-party no-fault benefits, defendant served plaintiff with a notice to take the deposition of plaintiff, as well as others. After plaintiff filed a notice of trial and certificate of readiness, defendant moved to vacate the notice of trial and certificate of readiness, asserting that, contrary to plaintiff’s representation, discovery was not complete. Although plaintiff did not oppose defendant’s motion, the
court below denied defendant’s motion, noting that the type of discovery sought by defendant was not within “the purview of plaintiff.”

Defendant’s motion to vacate the notice of trial and certificate of readiness should have been granted. It is undisputed that there is an outstanding request for discovery. A motion to vacate a notice of trial should be granted where, as in the instant matter, it is 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]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept]).

Pesce, P.J., Weston Patterson and Golia, JJ., concur. [*2]
Decision Date: February 16, 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, Kings County (Eileen Nadelson, J.), entered December 6, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Order modified by denying defendant’s cross motion for summary judgment; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff, and various documents annexed thereto. The affidavit
executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. Defendant cross-moved for summary judgment based upon the failure of plaintiff’s assignor to appear for two independent medical examinations (IMEs). Defendant also argued that the affidavit of plaintiff’s corporate officer was insufficient to establish plaintiff’s prima facie case because, among other things, it did not set forth evidence in admissible form. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment and plaintiff appeals therefrom.

Inasmuch as 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for [*2]summary judgment was properly denied.

With regard to defendant’s cross motion for summary judgment, which was premised upon the alleged failure of plaintiff’s assignor to appear for two IMEs, plaintiff contends that defendant was not entitled to summary judgment because defendant’s cross motion did not present sufficient evidence in admissible form. Since defendant did not present an affidavit from someone with personal knowledge establishing that plaintiff’s assignor failed to appear for the IMEs, defendant did not make a prima facie showing of its entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). Accordingly, defendant’s cross motion for summary judgment should have been denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 16, 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 (Gerald Dunbar, J.), entered November 22, 2005. The order granted defendant’s motion to the extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician, Dmitry Nesen, M.D., for a deposition.

Order modified by providing that defendant’s motion to compel plaintiff to appear for a deposition is granted to the extent of requiring plaintiff to produce a witness with knowledge of the dates, if any, commencing January 1, 2001 to the present, during which Dmitry Nesen, M.D. was an employee of plaintiff, for a deposition within 60 days
after service of a copy of the order entered hereon; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order, inter alia, compelling plaintiff to submit to depositions on the ground that there was an issue as to whether Dmitry Nesen, M.D., the physician who allegedly treated plaintiff’s assignor, was an employee of plaintiff or an independent contractor at the time the treatment was rendered (see generally A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). The court granted defendant’s motion to the extent of requiring plaintiff to produce Dr. Nesen for a deposition and this appeal ensued.

Inasmuch as it is unclear whether Dr. Nesen was employed by plaintiff when defendant sought such relief, the court erred in compelling plaintiff to produce Dr. Nesen for a deposition (see CPLR 3106 [b]; Doomes v Best Tr. Corp., 303 AD2d 322 [2003]; Schneider v Melmarkets Inc., 289 AD2d 470 [2001]; Zappolo v Putnam Hosp. Center, 117 AD2d 597 [1986]). However, since defendant’s motion sought to compel plaintiff to appear for a deposition regarding Dr. Nesen’s employment status when he
treated plaintiff’s assignor, defendant’s motion should have been granted to the extent of requiring plaintiff to produce a witness with such knowledge for deposition upon oral examination (see Kryzhanovskaya v City of New York, 31 AD3d 717 [2006]).

We note that while the court below relied upon Matter of Haas v Costigan (14 AD2d 809 [1961]), said case does not entitle defendant, at this juncture, to an order compelling plaintiff to produce Dr. Nesen for a deposition since it is both factually and legally distinguishable.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 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, Kings County (Robin S. Garson, J.), entered on November 16, 2005. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, for summary judgment.

Order reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover first-party no-fault benefits for health care services rendered to its assignors. In a prior cross motion, defendant sought to dismiss the complaint for plaintiff’s failure to comply with discovery or, in the alternative, to compel discovery. In support thereof, defendant’s attorney noted that plaintiff’s principal had failed to provide discovery with respect to her ownership, operation and control of plaintiff (see generally State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). By order dated December 28, 2004, plaintiff was directed to respond to written interrogatories and to produce an appropriate representative for a deposition.

In the instant motion, defendant seeks to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s continued failure to provide certain discovery, or, in the alternative, for summary judgment. In defendant’s moving papers, it is asserted that plaintiff’s principal failed to respond to any questions regarding the ownership, operation or control of plaintiff. Said motion was unopposed. The court below denied the motion.

In Lexington Acupuncture, P.C. v State Farm Ins. Co. (12 Misc 3d 90, supra), this court held that the defendant insurance company could properly seek discovery of information regarding whether plaintiff was fraudulently incorporated. Plaintiff failed to fully comply with [*2]the December 28, 2004 order. Moreover, plaintiff failed to oppose the
instant motion. In view of the foregoing, defendant’s motion to dismiss the complaint pursuant to CPLR 3126 should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: February 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated October 13, 2005. The order denied defendant’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered by plaintiff to its assignor, defendant insurer moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs) which had been scheduled prior to defendant’s receipt of the claim forms. In support of the motion, it submitted, inter alia,
copies of plaintiff’s three proofs of claim, copies of its claim denial forms, an affidavit of its no-fault claims examiner (which was sufficient to establish both defendant’s receipt of the claims and the mailing of the claim denials) and an affidavit of an employee of Alternative Consulting and Examinations, the company which scheduled the IMEs (which was sufficient to establish mailing of the IME scheduling letters to the assignor). The court denied defendant’s motion for summary judgment, finding that there was a triable issue of fact as to medical necessity, and this appeal ensued.

In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), the Appellate Division, Second Department, held that when an insurer moves for summary judgment to dismiss an action based upon an assignor’s failure to appear for IMEs which were requested prior to the submission of the claim forms, it must “establish, prima facie, that it mailed the notices of the IMEs . . . and that . . . [plaintiff’s assignor] failed to appear for the IMEs.” In that case, the insurer failed to meet its burden of proof in admissible form because it submitted no evidence from anyone with personal [*2]knowledge of the mailings or of the nonappearances. While defendant herein established proper mailing of the IME
requests, it did not submit evidence in admissible form from anyone with personal knowledge of the nonappearances. Since defendant failed to meet its burden, its motion for summary judgment was properly denied.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: February 14, 2007

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Eileen Rakower, J.), dated August 15, 2005, which denied its motion for summary judgment.

Order (Eileen Rakower, J.), dated August 15, 2005, modified to grant plaintiff partial summary judgment on its claims in the sums of $1,796.18 and $340; and as so modified, affirmed, without costs.

The peer review report relied upon by defendant in denying plaintiff’s $1,796.18 and $340 first party no-fault claims did not set forth an adequate factual basis and medical rationale for the reviewer’s determinations, and thus, was insufficient to defeat plaintiff’s prima facie showing of entitlement to summary judgment (see Park Neurological Servs. P.C. v GEICO Ins., 4 Misc 3d 95 [2004]).

With respect to plaintiff’s $765 claim, the independent medical examination (IME) report of defendant’s neurologist was sufficient to raise an issue of fact as to the medical necessity of the acupuncture treatments billed for in connection with this claim.

This constitutes the decision and order of the court.
I concurI concurI concur

Decision Date: February 08, 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, Kings County (Eileen Nadelson, J.), entered December 19, 2005. 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. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant raises for the first time that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. 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., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Weston Patterson, J.P., Rios and Belen, JJ., concur.
Decision Date: February 7, 2007