Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 28, 2019. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of claims that were denied on the ground of lack of medical necessity.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and the portions of claims that were denied on the ground of lack of medical necessity are denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 (initial visit) and 97039 (moxibustion), as well as the portions of claims that were denied on the ground of lack of medical necessity.

Plaintiff correctly argues that defendant failed to establish its claimed defense as to the [*2]services billed under CPT code 99203, as defendant did not demonstrate that a different provider had billed for such services and that said provider was previously paid for such services. Plaintiff also correctly argues that defendant could not deny, on the ground that defendant needed more information before it could make a determination with respect to such claims, so much of plaintiff’s claims as sought to recover for services billed under CPT code 97039—instead, it was defendant’s burden to request additional verification in the first instance (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 175 AD3d 455 [2019]), and defendant did not demonstrate that it had done so. Consequently, defendant did not establish its prima facie entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]) upon plaintiff’s claims seeking to recover for services billed under CPT codes 99203 and 97039.

In addition, plaintiff is correct that defendant was not entitled to summary judgment dismissing the portions of plaintiff’s claims which defendant denied on the ground of lack of medical necessity, as the independent medical examination report submitted by defendant is not in admissible form (see Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 134[A], 2013 NY Slip Op 50063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), which objection plaintiff raised in its opposition papers.

Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing claims for services billed under CPT codes 99203 and 97039, and portions of the claims that were denied on the ground of lack of medical necessity are denied.

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

Paul Kenny

Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 24, 2017, deemed from a judgment of that court entered October 19, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 24, 2017 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 $2,794.24.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 24, 2017 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered August 24, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment awarding plaintiff the principal sum of $2,794.24 was entered on October 19, 2017. Defendant’s appeal from the August 24, 2017 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

Contrary to defendant’s contention, defendant did not establish its entitlement to summary judgment. Defendant acknowledged that it had received 9 of the 12 claims at issue between May 13, 2015 and June 19, 2015 and that plaintiff’s assignor’s first IME was scheduled for August 3, 2015. As that IME had not been scheduled to be held within 30 calendar days after defendant had received those claims, defendant did not demonstrate its entitlement to summary judgment dismissing so much of the complaint as sought to recover upon those claims based upon the assignor’s failure to appear for IMEs (see 11 NYCRR 65-3.5 [d]; see also Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant’s remaining argument as to those claims is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it. Further, as noted by the Civil Court, defendant’s motion failed to address the remaining three claims. Consequently, we leave undisturbed so much of the August 24, 2017 order as denied defendant’s motion for summary judgment.

However, defendant correctly argues, as it did in the Civil Court, that plaintiff failed to establish its prima facie entitlement to summary judgment, since plaintiff did not establish either that defendant had failed to deny the claims at issue within the requisite 30-day period (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]). Therefore, plaintiff’s cross motion should have been denied.

Accordingly, the judgment is reversed, so much of the order entered August 24, 2017 as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

Paul Kenny

Decided on December 13, 2019

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

Decided on December 13, 2019

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 24, 2018. The judgment, entered upon defendant’s default in appearing for trial on April 28, 2017, and upon an order of that court entered May 8, 2018 denying defendant’s motion to open its default, awarded plaintiff the principal sum of $4,319.29.

ORDERED that the appeal is dismissed except insofar as it brings up for review the order entered May 8, 2018; and it is further,

ORDERED that the judgment, insofar as reviewed, is reversed, without costs, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.

In this no-fault action, a default was taken against defendant on April 28, 2017, because counsel appearing on defendant’s behalf, The Law Office of Jason Tenenbaum, P.C., was not the attorney of record and the court determined that counsel had not established “that it represents the [defendant] pursuant to the CPLR,” and, thus, that defendant had failed to appear. Defendant, represented by the same counsel, subsequently moved to open the default. It submitted, among [*2]other things, a Supreme Court order of substitution entered May 4, 2017 and a notice of appearance dated April 24, 2017, which lists The Law Office of Jason Tenenbaum, P.C. as the attorney appearing for defendant. By order entered May 8, 2018, the Civil Court (Rosemarie Montalbano, J.) denied defendant’s motion, stating that defendant had “failed to establish a reasonable excuse for failing to have its incoming counsel produce for the court proper proof of its legal representation of defendant.” A judgment was entered on May 24, 2018, awarding plaintiff the principal sum of $4,319.29.

Although no appeal lies from a judgment entered upon the default of the appealing party (see CPLR 5511), an appeal from such a judgment brings up for review those matters which were the subject of contest below (see James v Powell, 19 NY2d 249, 256 n 3 [1967]), which, in this case, was the order entered May 8, 2018 denying defendant’s motion.

Prior to the April 28, 2017 court date, on which the trial was scheduled to begin, defendant had made two different attempts to effect a substitution of counsel. It filed an application in the Supreme Court to have an order of substitution executed. It also attempted to move in the Civil Court, by order to show cause (OSC), to stay the trial pending the determination of the Supreme Court application or, in the alternative, for the Civil Court to make the substitution. Defendant submitted, in support of each application, a November 14, 2016 affidavit executed by Richard Dowd, who identified himself therein as defendant’s claim manager. Dowd listed four firms, including defendant’s former counsel of record in this case, that had previously handled no-fault cases for defendant. Dowd stated that those firms had all been disbanded prior to January of 2016 and that the files previously handled by those firms were all being handled by The Law Office of Jason Tenenbaum, P.C. and another named firm. He further stated that “[w]e hereby consent to The Law Office of Jason Tenenbaum, P.C. and [the other firm] to handle all of the files that above counsel handled, where a Notice of Appearance is filed with the Court.” Defendant also submitted, in support of its Civil Court motion, the April 24, 2017 notice of appearance.

The Civil Court refused to sign the OSC. In court on April 28, 2017, an associate with The Law Office of Jason Tenenbaum, P.C. sought an adjournment or a substitution on the same grounds laid out in the proposed motion, which oral application was denied. However, the Supreme Court granted defendant the requested relief by order entered May 4, 2017. The order of substitution, the validity of which has not been questioned, states that it is “ordered and adjudged that [T]he Law Office of Jason Tenenbaum, P.C. or [the other firm], upon Filing a Notice of Appearance is substituted in the stead” of [the disbanded firms] for all no-fault cases involving Global Liberty Insurance Co. of New York.”

CPLR 321 (b) permits the change or withdrawal of an attorney, insofar as is relevant here, by the filing of a consent to change attorney signed by the retiring attorney or by motion on such notice as the court may direct. Defendant did not strictly comply with CPLR 321 (b) (1), regarding a consent to change attorney, because the retiring attorney was a firm that no longer existed. Defendant was unable to comply with CPLR 321 (b) (2), regarding a motion, because [*3]the Civil Court declined to sign its OSC prior to the trial. Under the circumstances, including the presentation of the Dowd affidavit and notice of appearance to the court before defendant was held to be in default, and the order of substitution entered by the Supreme Court soon after defendant was held to be in default, defendant’s failure to comply with CPLR 321 (b) does not justify the entry of a default judgment (cf. EIFS, Inc. v Morie Co.,298 AD2d 548 [2002]; Tillman v Mason,193 AD2d 666 [1993]; Juers v Barry, 114 AD2d 1009 [1985]). Thus, we grant defendant’s motion to open its default in the “interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; cf. also PDQ Aluminum Prods. Corp. v Smith,20 Misc 3d 94 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment, insofar as reviewed, is reversed, the order entered May 8, 2018 is vacated and defendant’s motion to open its default in appearing for trial is granted.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.

Decided on December 6, 2019

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

Decided on December 6, 2019

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

Decided on December 6, 2019

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

Decided on December 6, 2019

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

Decided on December 6, 2019

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