APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

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 (Barbara Jaffe, J.), dated January 24, 2006, as granted plaintiff Devonshire Surgical Facility summary judgment in the principal sum of $3,000.

Per Curiam.

Appeal from order (Barbara Jaffe, J.), dated January 24, 2006, dismissed, without costs.

In view of plaintiffs’ unrefuted showing that the notice of appeal from the January 24, 2006 order was not filed within 30 days of the service of the order with notice of entry, it was untimely and the appeal must therefore be dismissed (see CPLR 5513[a]; Steinhardt Group, Inc. v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]). Were the appeal properly before us, we would affirm. Plaintiff Devonshire established prima case its entitlement to first party no-fault benefits and defendant failed to raise a triable issue to defeat summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 08, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from so much of an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), dated August 16, 2007, as denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), dated August 16, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $8,054.90 granted. The Clerk is directed to enter judgment accordingly.

In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742[2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant failed to raise triable issues of fact. The unsigned report of defendant’s peer review doctor submitted in support of the defense of lack of medical necessity failed to comply with CPLR 2106, and thus did not constitute admissible evidence (see Vista Surgical Supplies, Inc. v Travelers Ins. Co. 50 AD3d 778 [2008]). Nor did defendant submit competent evidentiary proof in support of its defenses of fraudulent incorporation (see 11 NYCRR 3.16[a][12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 131 [2005]) and nonconformity with the worker’s compensation schedule.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 24, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel Mendez, J.), entered October 12, 2006, which, inter alia, denied its motion for partial summary judgment in the principal sum of $2,527.50.

Per Curiam.

Order (Manuel Mendez, J.), entered October 12, 2006, reversed, with $10 costs, and plaintiff’s motion for partial summary judgment in the principal sum of $2,527.50 granted. The Clerk is directed to enter judgment accordingly.

In this action to recover first party no-fault benefits, plaintiff made a prima facie showing of entitlement to partial judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]). In opposition, defendant failed to raise a triable issue since it did not submit the IME report upon which its denials were based or any other evidentiary proof to support its defense of lack of medical necessity (see Vista Surgical Supplies, Inc. Travelers Ins. Co., 50 AD3d 778 [2008]; Response Med. Equip. v General Assur. Co., 13 Misc 3d 129[A], 2006 NY Slip Op 51765[U] [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: July 28, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Diane A. Lebedeff, J.), entered March 31, 2006, which denied its motion for summary judgment without prejudice to renewal.

Per Curiam.

Order (Diane A. Lebedeff, J.), entered March 31, 2006, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $2,420 granted. The Clerk is directed to enter judgment accordingly.

In opposition to plaintiff’s prima facie showing of entitlement to summary judgment recovery of first party no-fault benefits (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742[2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Inc. Co., 16 Misc 3d 8 [2007]), defendant failed to submit competent proof that it timely mailed its denial of claim forms within the prescribed 30-day period. Thus, defendant is precluded from asserting statutory exclusion defenses, including its defenses of excessive fees (see Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]) and lack of medical necessity (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: July 28, 2008

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 (Manuel J. Mendez, J.), entered May 14, 2007, which granted plaintiff’s motion for summary judgment.

Per Curiam.

Order (Manuel J. Mendez, J.), entered May 14, 2007, reversed, with $10 costs, motion denied, and upon searching the record, summary judgment awarded to defendant dismissing the action.

In this action to recover no-fault first party benefits, defendant’s documentary submissions were sufficient to give rise to a presumption that defendant’s verification requests were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]). Inasmuch as an insurer is not required to pay or deny a claim until it receives verification of all relevant requested information (see 11 NYCRR 65-3.8[b][3]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]), and it being undisputed on this record that plaintiff did not respond to defendant’s verification requests, plaintiff’s claim for payment was premature. Under these circumstances, where no triable issue exists as to whether plaintiff provided defendant with the requested information, defendant is entitled to summary judgment dismissing the action (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 16, 2008

—[*1] Thomas Torto, New York (Jason Levine of counsel), for appellant.

Gary Tsirelman, Brooklyn, for respondent.

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered January 30, 2007, awarding defendant the principal sum of $12,638.96, and bringing up for review an order, same court and Justice, entered May 25, 2006, which granted defendant’s motion for summary judgment on its claim for first-party no-fault insurance benefits, and an order, same court and Justice, entered May 30, 2006, which in effect granted plaintiff’s motion for reargument and, upon reargument, adhered to its prior determination, unanimously reversed, on the law, without costs, the judgment vacated, and defendant’s motion for summary judgment denied. Appeal from the order entered May 30, 2006 unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant medical provider established prima facie its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by plaintiff insurer and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). However, in opposition to the motion, plaintiff raised a triable issue of fact whether the claimed benefits were properly denied for lack of medical justification. Plaintiff was not required to set forth the medical rationale in the prescribed denial of claim form (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Nor is a nurse’s review denying no-fault claims for lack of medical necessity per se invalid (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294, 295 [2007]). [*2]

Plaintiff waived its objection to defendant’s standing (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]). Concur—Saxe, J.P., Sweeny, McGuire and Acosta, JJ.

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 (Ben R. Barbato, J.), dated March 21, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Ben R. Barbato, J.), dated March 21, 2007, affirmed, without costs.

Defendant’s motion for summary judgment dismissing this action for no-fault first party benefits on the ground that the underlying medical services were performed by an independent contractor was properly denied. In opposition to the motion, the plaintiff provider submitted the treating physician’s affidavit stating that he is the plaintiff’s president and sole shareholder, not an independent contractor, and that the box for “Independent Contractor” on the NF-3 claim form had been marked erroneously. In these circumstances, the record presents issues of fact as to whether the services were performed by plaintiff through its officer rather than an independent contractor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 24, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), dated February 4, 2005, which granted plaintiff’s pretrial motion to preclude defendant’s denial of claim forms and directed judgment in favor of plaintiff in the principal sum of $8,715.82.

Per Curiam.

Order (Francis M. Alessandro, J.), dated February 4, 2004, reversed, with $10 costs, motion denied and matter remanded for further proceedings.

In this action to recover first party no-fault benefits, plaintiff’s motion to preclude defendant’s NF-10 denial of claim forms should have been denied. Defendant’s NF-10 forms, which stated that each claim was denied based upon an independent consultant’s review, sufficiently apprised plaintiff of the factual basis for the denials (see 11 NYCRR 65-3.8 [b][4]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 18, 2008

[*1]

Supreme Court, Appellate Term, First Department, December 19, 2007

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Ioanna Olivia Zevgaras of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**18 Misc 3d at 228} OPINION OF THE COURT

Per Curiam.

Order, dated June 16, 2006, reversed, with $10 costs, defendant’s motion for summary judgment granted, and complaint dismissed. The clerk is directed to enter judgment accordingly.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer’s affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff’s claim for first party no-fault benefits lacked medical necessity. In opposition, plaintiff relied upon an attorney’s affirmation accompanied by a single, unsworn and undated doctor’s report, which was not properly before the court and should not have been considered (see Grasso v Angerami, 79 NY2d 813 [1991]; Black v Regalado, 36 AD3d 437 [2007]; Henkin v Fast Times Taxi, 307 AD2d 814 [2003]). While a physician’s affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]), an attorney’s affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence. In any event, even if considered, the unsworn report of plaintiff’s doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

McKeon, J.P., McCooe and Davis, JJ., concur.

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, New York County (Anil C. Singh, J.), entered February 16, 2006, which, inter alia, granted plaintiff’s cross motion for summary judgment to the extent of awarding it the principal sum of $587.90.

Per Curiam.

Order (Anil C. Singh, J.), entered February 16, 2006, modified to deny plaintiff’s cross motion for summary judgment in its entirety, and as modified, affirmed, without costs.

Plaintiff seeks to recover first party no-fault benefits totaling $1,350.20 for medical services rendered to its assignor on April 25, 2002 and May 16, 2002. Although plaintiff moved for summary judgment on both claims, its motion was granted only to the extent of awarding plaintiff the sum of $587.90 on its claim for services rendered on April 25, 2002. Inasmuch as plaintiff’s submissions were insufficient to establish that it mailed the $587.90 claim within the 180-day period prescribed by the governing insurance regulations (see 11 NYCRR 65.12[e]), its motion for summary judgment should have been denied in its entirety.

In support of its cross motion for summary judgment for the $587.90 claim, plaintiff submitted the affidavit of an employee of the entity that oversees the mailing of its billings. The affidavit, dated December 30, 2005, stated that the employee mailed the bill for services rendered on April 26, 2002 on June 3, 2002. Although the affidavit indicated that the affiant personally mailed the bill to defendant, it did not explain the office mailing practice of her employer nor did it state the basis for the affiant’s recollection, three years later, of mailing the bill. Since the affidavit was insufficient to give rise to the presumption of mailing (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]), and defendant has alleged that it received plaintiff’s claim outside the prescribed 180-day period, plaintiff’s cross motion for summary judgment on the $587.90 claim should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: October 31, 2007