SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), dated September 8, 2011, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ann E. O’Shea, J.), dated September 8, 2011, reversed, without costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

It being undisputed on this record that plaintiff failed to respond to the defendant insurer’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). That defendant requested verification after the 15-day period (11 NYCRR 65-3.5[b]), but before the 30-day claim denial window expired, did not render its requests invalid, but merely reduced the 30-day time period for payment or denial of the claim (see 11 NYCRR 65-3.8[j]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 28, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 10, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 10, 2012, insofar as appealed from, reversed, without costs, defendant’s motion granted in its entirety and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The evidentiary proof submitted by defendant established, prima facie, that this action for assigned first-party no-fault benefits was premature, since it was commenced less than 30 days after plaintiff’s March 11, 2011 service of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007]). In opposition, plaintiff’s assertion that it mailed the claim to defendant in March 2010 was insufficient to raise a triable issue, since the record shows that the March 2010 claim related to services that were rendered on a date different than that set forth in the claim at issue in the case at bar.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 15, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 18, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 18, 2011, modified to the extent of granting, upon a search of the record, plaintiff summary judgment on its first cause of action in the principal sum of $3,126.28; as modified, order affirmed, without costs.

Inasmuch as the record conclusively establishes that the defendant insurer did not timely deny the claim for first-party no-fault benefits within the prescribed 30-day period, it is precluded from asserting the defense that the fees charged were excessive (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [211]). Although plaintiff did not cross-move for summary judgment, we search the record and grant it summary judgment in the principal amount demanded in the first cause of action (see 3212[b]), since defendant’s payment on the claim is overdue and defendant has not raised any other defenses.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 03, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Anil C. Singh, J.), entered on or about May 10, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $1,277.64.

Per Curiam.

Judgment (Anil C. Singh, J.), entered on or about May 10, 2010, reversed, with $25 costs, and judgment awarded in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

It is well settled that the 30-day period within which an insurer must pay or deny a claim for first-party no-fault benefits is tolled until it receives a response to properly issued verification requests (see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). Here, the defendant insurer established at trial that it timely and properly mailed its initial and follow-up verification requests to the plaintiff medical provider’s attorney, as authorized by plaintiff’s counsel’s prior correspondence to defendant (see St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]), and that plaintiff failed to respond. In the absence of any countervailing evidence from plaintiff, the clear and consistent testimony of defendant’s litigation examiner as to the substance of plaintiff’s counsel’s letter of representation and defendant’s standard office mailing procedure was sufficient to establish proper mailing of the verification requests and to create an as yet unrebutted presumption of receipt, and this despite the absence from the record of counsel’s representation letter.

We note plaintiff’s failure to file a respondent’s brief on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 19, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danzinger, J.), entered January 4, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danzinger, J.), entered January 4, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s claim for assigned first-party no-fault benefits is warranted on the full record now before us, which shows that the defendant insurer timely and properly mailed its initial and follow-up verification demands to the plaintiff medical provider at the street address listed in its claim form. Indeed, plaintiff, in opposing summary judgment, did not meaningfully challenge the procedures followed by defendant in mailing the verification demands or deny its receipt of defendant’s demands; instead, plaintiff maintained that defendant’s verification demands were not received by its third-party biller, an entity known as Spendan Service Corp., which apparently conducts its business from a designated suite at the same street address from which plaintiff operates its medical facility. However, the conclusory denial of receipt of the verification demands advanced by plaintiff’s third-party biller was insufficient to raise a triable issue as to the efficacy of defendant’s mailings. Even assuming, arguendo, that the medical biller can properly be viewed, on this record, as plaintiff’s authorized representative for the purposes of receiving and responding to further verification requests (see 11 NYCRR 65-3.5[a],[c]; see and compare St. Vincent’s Hosp. v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]), plaintiff failed to make any showing that the verification demands were not received by the billing entity due to the absence from the mailings of its (the biller’s) suite number or otherwise (see Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 12, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 12, 2010, reversed, with $10 costs, motion granted and complaint dismissed. (See Darlington Med. Diagnostic, P.C. v Praetorian Ins. Co., appeal numbered 11-265, decided herewith.) The Clerk is directed to enter judgment accordingly.

In granting the defendant-insurer’s motion for summary judgment dismissing the within first-party no-fault action, we note that plaintiff’s third-party biller acknowledged receipt of defendant’s follow-up verification demand, but failed to explain why it took no responsive action. Moreover, contrary to the view expressed below and as plaintiff now expressly acknowledges, plaintiff neither claimed nor showed that it responded in any way to defendant’s properly issued verification demands.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 14, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered March 14, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Summary judgment dismissal of plaintiff’s no-fault first-party benefit claim was warranted on the full record developed below. “The standard for determining residency for purposes of insurance coverage requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain” (Vela v Tower Ins. Co. of NY, 83 AD3d 1050, 1051 [2011], quoting Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [2004]). The mere intention to reside at certain premises is not sufficient (see Vela v Tower Ins. Co. of NY, 83 AD3d at 1051).

Here, defendant’s moving submission, including the properly considered (see Zalot v Zieba, 81 AD3d 935, 936 [2011], lv denied 17 NY3d 703 [2011]) transcripts of the examinations under oath (“EUO”) of plaintiff’s assignor and her husband, the named insured, established prima facie that the insured fraudulently procured insurance coverage by falsely listing a Pearl River, New York house owned by his father as his residence on the insurance application, when the insured and his wife (the assignor) actually resided, with their infant child, in an apartment in Cliffside Park, New Jersey, an address listed by the couple on their tax returns. In opposition, plaintiff, as assignee “stand[ing] in the shoes” of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), failed to raise a triable issue of fact. Plaintiff’s reliance on a snippet of the insured’s EUO testimony, in which he stated conclusorily that he and his family merely lived “part-time” in the Cliffside Park apartment, was plainly insufficient to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 11, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 28, 2011, as denied its cross motion for a protective order and granted defendant’s motion to compel plaintiff to produce its principal for deposition.

Per Curiam.

Order (Fernando Tapia, J.), entered February 28, 2011, insofar as appealed from, reversed, with $10 costs, defendant’s motion to compel plaintiff to produce its principal for deposition denied and plaintiff’s cross motion for a protective order granted.

The defendant-insurer’s notice of deposition—pertaining to its defense of provider fraud based on fraudulent billing practices—was palpably improper (see Dhue v Midence, 1 AD3d 279 [2003]), since defendant is precluded from raising this defense due to its failure to timely deny plaintiff’s no-fault first-party claim within the 30-day statutory period (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 565 [2008]). This is so irrespective of defendant’s claim that the fraudulent billing was part of a widespread scheme to defraud insurers (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 285 [2007], affd 10 NY3d 556 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 30, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), entered July 15, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ann E. O’Shea, J.), entered July 15, 2011, 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 the action 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 Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered November 7, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered November 7, 2011, 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 judgment as a matter of law by submitting, inter alia, an orthopedist’s peer review report, setting forth in some detail a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff’s claim for first-party no-fault benefits lacked medical necessity. Notably, defendant’s peer reviewer emphasized, among other factors, that his review of the assignor’s medical records showed “no findings of instability” or “positive … orthopedic signs” in connection with the assignor’s claimed shoulder injuries and that, although the arthoscopic procedure undertaken by plaintiff related to its assignor’s left shoulder, the assignor’s “chief complaint” at her initial, post-accident consultation involved her right shoulder. Plaintiff’s opposing submission, consisting solely of an attorney’s affirmation together with unsworn, and thus inadmissible medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to withstand summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 24, 2012