Reported in New York Official Reports at S.A. Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 50953(U))
| S.A. Med., P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 50953(U) [48 Misc 3d 128(A)] |
| Decided on June 25, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 25, 2015
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570403/15
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered October 15, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Elizabeth A. Taylor, J.), entered October 15, 2013, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiffs’ assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance, including the sworn affidavits of the scheduled examining physician and chiropractor/acupuncturist, attesting to the affiants’ personal knowledge of their office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424; Harmonic Physical Therapy v Encompass Home & Auto Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U] [App Term, 1st Dept 2015]).
In opposition to defendant’s prima facie showing, plaintiffs did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
In view of our determination, we reach no other issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 25, 2015
Reported in New York Official Reports at Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U))
| Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. |
| 2015 NY Slip Op 50900(U) [47 Misc 3d 156(A)] |
| Decided on June 17, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on June 17, 2015
PRESENT: Lowe, III, P.J., Shulman, J.
570100/15
against
Chubb Indemnity Insurance Company, Defendant-Appellant.
Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered March 4, 2014, as denied its motion for summary judgment dismissing the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation, for services rendered September 2, 2010 through November 23, 2010 and January 3, 2011 through March 14, 2011, in the amount of $2,220.
Per Curiam.
Order (James E. d’Auguste, J.), entered March 4, 2014, insofar as appealed from, reversed, with $10 costs, motion granted and the no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation in the amount of $2,220, dismissed.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the first-party no-fault claims of plaintiff L.N.L. Physical Therapy Rehabilitation (“plaintiff”) in the aggregate sum of $2,220, by establishing that it timely denied the claims based on the independent medical examination (IME) report and follow-up report of its examining orthopedic doctor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further physical therapy treatment. In opposition, plaintiff failed to raise a triable issue. The affidavit of plaintiff’s treating physical therapist failed to meaningfully address the contrary findings made by defendant’s examining doctor, including the normal results of the range of motion testing of the assignor’s cervical and lumbar spine (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [1st Dept 2007]). Defendant’s remaining arguments, raised for the first time in its reply brief, are not entitled to consideration (Mehmet v Add2Net, Inc., 66 AD3d 437 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: June 17, 2015
Reported in New York Official Reports at SMB Med., PC v Federal Ins. Co. (2015 NY Slip Op 50895(U))
against
Federal Insurance Company, Defendant-Appellant.
Defendant, as limited by the briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (David B. Cohen, J.), entered October 17, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (David B. Cohen, J.), entered October 17, 2013, insofar as appealed from, modified to grant defendant partial summary judgment dismissing the portion of the claims seeking reimbursement for acupuncture services rendered to the assignor; as modified, order affirmed, with $10 costs to defendant, and the matter remanded for further proceedings in accordance herewith.
Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claims for acupuncture treatment rendered to plaintiff’s assignor, by submitting the independent medical examination [IME] report of its examining acupuncturist which set forth a sufficient factual basis and medical rationale for the conclusion that no further acupuncture treatment was medically necessary (see V.S. Care Acupuncture PC v MVAIC, 47 Misc 3d 126[A], 2015 NY Slip Op 50350[U] [App Term, 1st Dept]). Plaintiff’s opposing submissions, consisting of an attorney’s affirmation and the report of its examining doctor, which, as plaintiff concedes on appeal, did not mention, much less address the medical necessity of the acupuncture services rendered, was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [App Term, 1st Dept 2007]). We remand the matter to Civil Court for a determination of the amount of the claims for acupuncture services, since defendant has failed to establish such amount in its motion papers.
We sustain so much of the order under review as denied defendant’s motion for summary judgment dismissing plaintiff’s remaining no-fault claims, since the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the medical services underlying these claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: June 12, 2015
Reported in New York Official Reports at Tutto Anesthesia v American Country Ins. Co. (2015 NY Slip Op 50738(U))
against
American Country Insurance Company, Defendant-Respondent.
Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered March 21, 2014, as denied their cross motion for summary judgment on their first through sixth causes of action, and granted that branch of defendant’s motion seeking to compel plaintiffs to respond to discovery demands.
Per Curiam.
Order (Lynn R. Kotler, J.), entered March 21, 2014, insofar as appealed from, reversed, with $10 costs, plaintiffs’ cross motion for partial summary judgment on their first through sixth causes of action is granted, and that branch of defendant’s motion seeking to compel discovery is denied.
Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]. In opposition, defendant failed to raise a triable issue. Indeed, defendant’s own documentary submissions, which included plaintiffs’ claim forms that were date-stamped received by defendant, established defendant’s receipt of plaintiffs’ claims and that payment of benefits was overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]).
Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011], lv denied 18 NY3d 810 [2012]).
Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921 [2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).
In the absence of a cross appeal by defendant, we do not address the propriety of the court’s denial of the request to toll interest. Defendant’s remaining arguments, to the extent preserved for appellate review, have been considered and rejected.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 18, 2015
Reported in New York Official Reports at Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. (2015 NY Slip Op 50733(U))
against
Encompass Home and Auto Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered November 14, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Appeal from order (Gerald Lebovits, J.), entered November 14, 2013, deemed, pursuant to CPLR 5517(b), to be taken from the subsequent order (same court and Judge), entered July 17, 2014, which, upon reargument, adhered to the original determination denying defendant’s motion for summary judgment dismissing the complaint, and so considered, order reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action seeking recovery of first-party no-fault benefits by submitting evidence establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]).
Contrary to the motion court’s conclusion, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler attesting to the affiants’ personal knowledge of their office practices and policies in situations where an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v. Lucas, 111 AD3d at 424). Alrof, Inc. v Safeco Natl. Ins. Co. (39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), relied upon by the motion court, does not warrant a contrary result, since in that case the affiant did not demonstrate personal knowledge of the law firms’s practices and procedures in establishing appearances at scheduled examinations under oath (compare Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; accord [*2]Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 18, 2015
Reported in New York Official Reports at SMB Med. P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50719(U))
| SMB Med. P.C. v Chubb Indem. Ins. Co. |
| 2015 NY Slip Op 50719(U) [47 Misc 3d 146(A)] |
| Decided on May 13, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on May 13, 2015
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan, JJ.
570039/15
against
Chubb Indemnity Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 2, 2014, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Elizabeth A. Taylor), entered July 2, 2014, affirmed, with $10 costs.
Defendant failed to establish its entitlement to summary judgment dismissing the complaint based upon plaintiff’s alleged untimely submission of the claims beyond the applicable 45-day time limit (see 11 NYCRR 65-1.1[d]). The affidavit of defendant’s claims adjuster failed to describe defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), and was inadequate to demonstrate that plaintiff’s bills were not timely received within the 45-day period. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: May 13, 2015
Reported in New York Official Reports at American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925)
| American Tr. Ins. Co. v Jaga Med. Servs., P.C. |
| 2015 NY Slip Op 03925 [128 AD3d 441] |
| May 7, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Jaga Medical Services, P.C., et al., Appellants, et al., Defendants. |
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.
Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.
The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.
Reported in New York Official Reports at Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. (2015 NY Slip Op 50565(U))
| Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co. |
| 2015 NY Slip Op 50565(U) [47 Misc 3d 137(A)] |
| Decided on April 21, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 21, 2015
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
&em;
against
Chubb Indemnity Insurance Company, Defendant-Appellant.
Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor), entered July 8, 2014, as denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Elizabeth A. Taylor), entered July 8, 2014, insofar as appealed from, modified by granting defendant’s motion for summary judgment dismissing plaintiff’s claim in the sum of $212.37; as modified, order affirmed, without costs.
We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the orthopedic surgery underlying plaintiff’s first-party no-fault claim in the sum of $3,408.11. However, defendant made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s no-fault claim in the sum of $212.37, by the affidavit of its claims adjuster demonstrating that plaintiff submitted the claim beyond the 45-day time limit for submission of claims (see 11 NYCRR 65-1.1[d]; Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]). Plaintiff’s opposing submissions failed to raise any triable issue. The affidavit of plaintiff’s office manager did not allege a personal mailing of the claim within the 45-day period or describe plaintiff’s regular office mailing practice and procedure (see Tower Ins. Co. of NY v Ray & Frank Liq. Store, 104 AD3d 482 [2013]; Westchester Med. Ctr. v. Countrywide Ins. Co., 45 AD3d 676, 677 [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 21, 2015
Reported in New York Official Reports at Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. (2015 NY Slip Op 50538(U))
| Priority Med. Diagnostics, P.C. v New York Cent. Mut. Fire, Ins. Co. |
| 2015 NY Slip Op 50538(U) [47 Misc 3d 137(A)] |
| Decided on April 16, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 16, 2015
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570005/14
against
New York Central Mutual Fire, Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered February 9, 2012, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.) entered February 9, 2012, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). The affidavit of defendant’s third-party IME scheduler, who had personal knowledge of his office’s standard mailing practices and procedures, sufficiently established the mailing of the IME notices (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]). Defendant also submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining chiropractor and acupuncturist, as well as the IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: April 16, 2015
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. (2015 NY Slip Op 50537(U))
| Healthy Way Acupuncture, P.C. v One Beacon Ins. Co. |
| 2015 NY Slip Op 50537(U) [47 Misc 3d 137(A)] |
| Decided on April 16, 2015 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 16, 2015
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570035/15
against
One Beacon Ins. Co., Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joseph E. Capella, J.), entered March 19, 2014, which denied, in part, its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.
This action, seeking recovery of first-party no-fault benefits, is not ripe for summary dismissal, since defendant-insurer failed to establish the proper and timely mailing of the denial of claim forms at issue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 564—565 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). The affidavit submitted by defendant to establish proof of mailing, identifying the affiant as an employee of nonparty Tower Insurance Group (“Tower”), an entity remotely related to defendant, lacked probative value, since it failed to set forth the basis of affiant’s personal knowledge of the internal mailing practices and procedures of defendant during the pertinent period (see Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 253-254 [2011]), especially given that affiant began his employment with Tower after the denial at issue was allegedly mailed by defendant (see Nocella v Fort Dearborn Life Ins. Co. of NY, 99 AD3d 877, 879 [2012]). “It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant’s knowledge . . . and here, defendant failed to meet that burden” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d at 254).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: April 16, 2015