[*1] Decided on December 7, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ
570658/10.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 4, 2009, which granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment.

Per Curiam.

Order (Arlene P. Bluth, J.), entered August 4, 2009, reversed, without costs, the order vacated and the matter remanded to Civil Court for a new determination of the parties’ respective motions for summary judgment following an application by plaintiffs to the Workers’ Compensation Board to determine their rights under the Workers’ Compensation Law.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers’ Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor’s employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (Arvatz, 171 AD2d at 269), and the parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to plaintiffs’ claim (see Botwinick, supra; Dunn, supra; LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

We note that, contrary to plaintiffs’ contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 07, 2010

[*1] Decided on December 3, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570595/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff-provider commenced this action to recover assigned first-party no-fault benefits for medical supplies provided to its assignor. Defendant-insurer moved for summary judgment dismissing the complaint as premature on the ground that plaintiff failed to comply with defendant’s verification requests. In support of that motion, defendant submitted the affidavit of its claims examiner, in which he stated that (1) defendant received plaintiff’s claim on August 13, 2007; (2) defendant mailed verification requests on August 14, 2007, and follow-up requests on August 28, 2007 and September 28, 2007; and (3) plaintiff failed to respond to any of these requests. Civil Court denied the motion on the ground that the verification requests were issued “less than thirty (30) days apart in contravention of the regulations, thereby rendering them improper.” We reverse.
It is well settled that the 30-day period within which an insurer must pay or deny the claim is tolled until it receives the relevant verification requested (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Plaintiff does not dispute that defendant mailed the verification requests, as well as the follow-up requests, and that plaintiff failed to respond. Although defendant’s September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant’s “improper” follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd., supra), does [*2]not vitiate the validity of the September 28, 2007 follow-up request. “[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests” (id. at 865). Accordingly, since plaintiff did not respond to defendant’s verification requests, its action is premature, and defendant’s motion for summary judgment dismissing the complaint as premature should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 03, 2010

Allstate Ins. Co. v Belt Parkway Imaging, P.C.

2010 NY Slip Op 08783 [78 AD3d 592]

November 30, 2010

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 19, 2011

Allstate Insurance Company et al., Respondents, v Belt Parkway Imaging, P.C., et al., Appellants, et al., Defendants.

—[*1] Hession Bekoff Cooper & LoPiccolo, LLP, Garden City (Jonathan M. Cader of counsel), and Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Todd Fass of counsel), for appellants. Cadwalader, Wickersham & Taft LLP, New York (William J. Natbony of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 26, 2009, which denied the motion by defendants Belt Parkway Imaging, P.C., Diagnostic Imaging, P.C., Metroscan Imaging, P.C., Parkway MRI, P.C. (the PC defendants) and Herbert Rabiner, M.D., for partial summary judgment, unanimously affirmed, without costs.

“A provider of health care services is not eligible for reimbursement under section 5102(a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). Pursuant to this regulation, the Court of Appeals held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319, 321 [2005]). Mallela was decided on March 29, 2005. The Legislature subsequently enacted Insurance Law § 5109, which became effective on August 2, 2005.

There is no indication in section 5109 that the statute overrules Mallela. Nor is there any such indication in its legislative history, which “must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with” (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]).

Section 5109 (a) states, “The superintendent, in consultation with the commissioner of health and the commissioner of education, shall by regulation, promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services as specified in” Insurance Law § 5102 (a) (1). However, the Superintendent of Insurance has issued no regulations pursuant to section 5109 (a). Thus, if—as defendants contend—only the Superintendent can take action against fraudulently incorporated health care providers, then no one can take such action. In light of the [*2]fact that “[t]he purpose of the regulations of which [11 NYCRR] 65-3.16 (a) (12) is a part was to combat fraud” (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, 409 [2006]), this would be an absurd result, and we reject it (McKinneys Cons Laws of NY, Book 1, Statutes § 145).

Defendants’ contention that plaintiffs fail to state a cause of action for unjust enrichment because they have not alleged that the services rendered by the PC defendants were medically unnecessary is without merit. Paragraph 1 of the second amended complaint alleges that “numerous unnecessary referrals were made subjecting many patients to unnecessary testing and/or radiation.” Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570600/10.

Shulman, J.P., McKeon, Schoenfeld, JJ.

NY County Clerk’s No. 570600/10 Calendar No. 10-358 Triangle R Inc. a/a/o Danilo Cabarcas, Plaintiff-Respondent, -against- Praetorian Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue. As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*2]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur Decision Date: November 26, 2010

NOVEMBER 26, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								Nove mber 2010 Term

Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue.

As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).
Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*3]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570501/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which denied its motions for summary judgment dismissing the complaints.

Per Curiam.

Order (Fernando Tapia, J.), entered April 15, 2010, reversed, with $10 costs, defendant’s motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgement accordingly.

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff’s assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant’s motion for summary judgment dismissing the underlying actions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 26, 2010

[*1] Decided on October 22, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
570112/10.

McKeon, P.J., Schoenfeld, Hunter, Jr., JJ.

New Millenium Medical SupplyNY County Clerk’s No. 570112/10 a/a/o Gibson Stayman, Plaintiff-Respondent, against Calendar No. 10-106 Clarendon National Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly. Plaintiff’s cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the claim — not the date of defendant’s untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff’s reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 22, 2010

10/22/2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								April 2010 Term

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff’s cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the claim — not the date of defendant’s untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff’s reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2010

[*1] Decided on September 21, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570448/09.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered on or about June 26, 2007, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $878.67.

Per Curiam.

Judgment (Peter H. Moulton, J.), entered on or about June 26, 2007, reversed, without costs, and judgment directed in favor of defendant dismissing the complaint. The Clerk is directed to enter judgment accordingly.

Plaintiff, a provider of radiology services, submitted a claim to defendant for medical services rendered to plaintiff’s assignor, Julia Higginbotham. The claim was denied on coverage grounds, defendant asserting that its records indicated that Higginbotham was a pedestrian struck by a vehicle owned and operated by Linell McWilliams (an insured of defendant) in the State of Louisiana, where there is no no-fault coverage or obligation to pay first-party benefits. At trial, defendant stipulated to plaintiff’s prima facie case, and the only issue litigated was defendant’s lack of coverage defense. In support of its defense, defendant called one witness, a senior underwriter. The court subsequently rendered judgment in favor of plaintiff and awarded it the damages sought in the complaint.

We disagree with the trial court’s conclusions that defendant’s lack of coverage defense was predicated solely on inadmissible hearsay and that defendant, to establish its lack of coverage defense, was obligated to produce a witness with personal knowledge of the underlying accident. Defendant’s witness, whose testimony showed that the subject accident occurred in Louisiana and involved a pedestrian (Higginbotham) who was struck by a motor vehicle owned and operated by a Louisiana driver (McWilliams), appropriately relied on the contents of the subject claims log, a business record which constitutes an exception to the hearsay rule.

Plaintiff’s listing of Higginbotham as the insured party on its claim form — an apparent clerical error — did not obligate defendant to conduct an exhaustive search to exclude the possibility that Higgingbotham was defendant’s insured, a status she never asserted to hold. While more than one insurer may be obligated to pay first-party no-fault benefits for a covered event (see Insurance Law § 5106[d]), the obligation remains upon the claimant, in the first [*2]instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured. Not only did plaintiff fail to satisfy that obligation here, but plaintiff’s counsel readily admitted at trial that counsel had no inkling whether Higginbotham was defendant’s insured.

Since defendant demonstrated that the claim did not arise out of an insured incident, it established its lack of coverage defense (see generally Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), and the complaint should have been dismissed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 21, 2010

[*1] Decided on July 21, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570206/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 28, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 [2005]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a condition precedent to coverage (see id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010

[*1] Decided on May 24, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570743/09.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]D
ecision Date: May 24, 2010

[*1] Decided on May 17, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570498/09.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to (1) grant summary judgment to plaintiff Carnegie Hill Orthopedic Services, P.C., on the second and third causes of action seeking the principal sum of $9,118.76, and the Clerk is directed to judgment accordingly; and (2) grant partial summary judgment to plaintiffs on the issue of liability as to their first cause of action, and the matter remanded for apportionment between plaintiffs of the damages thereon; and, as so modified, order affirmed, with $10 costs.

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Although defendant does not dispute the total amount overdue on the first cause of action, we remand the matter to Civil Court for an apportionment of the amount owed to each respective plaintiff on that cause of action, since plaintiffs failed to establish such apportionment in their motion papers.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 17, 2010