Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1527 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Moira Doherty, P.C. (Janice P. Rosen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 22, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff correctly argues on appeal that the papers submitted in support of defendant’s cross motion failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.

However, contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the papers submitted in support of its motion [*2]failed to establish either that the claims at issue had not been timely denied (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]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-425 K C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of James F. Sullivan (Gia Tuttolomondo, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 3, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant’s denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1846 Q C

Amos Weinberg, Esq., for appellants. Abrams, Cohen & Associates, P.C. (Frank Piccininni, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 28, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action is premature because plaintiffs had failed to provide requested verification.

In support of plaintiffs’ motion for summary judgment and in opposition to defendant’s cross motion, plaintiffs submitted affirmations from plaintiffs’ counsel and annexed purported verification responses which expressly stated that plaintiffs were not providing responses to some of defendant’s verification requests. As a result, contrary to plaintiffs’ contention, the record demonstrates that defendant had not received all of the requested verification and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1569 K C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Moshe D. Fuld, P.C. (David Karp, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 4, 2013. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,937.42.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of the services at issue. The Civil Court precluded the testimony of defendant’s expert witness and granted plaintiff’s motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered in favor of plaintiff in the principal sum of $4,937.42.

Defendant’s expert medical witness, who was not the expert who had prepared the peer review report upon which defendant’s denial of the claim at issue had been based, should have been permitted to testify as to her opinion regarding the lack of medical necessity of the services at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (see Promed Orthocare Supply, Inc. v Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY [*2]Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1506 K C

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered March 18, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the papers plaintiff submitted in opposition to defendant’s motion for summary judgment did not raise a triable issue of fact (see Sydney Realty, LLC v Desiderio, 17 Misc 3d 137[A], 2007 NY Slip Op 52302[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). Accordingly, the order is affirmed.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1503 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLC (Natalie Socorro, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered February 13, 2015. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment upon the second cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court entered February 13, 2015 as denied the branch of plaintiff’s motion seeking summary judgment upon the second cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action.

Contrary to plaintiff’s sole argument as to defendant’s cross motion, the affidavit submitted by defendant was sufficient to demonstrate that the independent medical examination scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1339 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first four causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Defendant’s denial of claim forms with respect to the claims underlying the first four causes of action were untimely on their face and, as plaintiff argues, defendant did not establish, as a matter of law, that it had tolled its time to pay or deny those claims by timely mailing verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action should have been denied.

With respect to the fifth through eighth causes of action, plaintiff argues that defendant [*2]failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first four causes of action are denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1221 K C

Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant. Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 20, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint as premature on the ground that plaintiff had failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s only argument on appeal, the follow-up verification requests issued by defendant were proper (see 11 NYCRR 65-3.6 [b]). In any event, “[a]ny confusion on the part of [] plaintiff as to what was being sought should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

Accordingly, the order is affirmed.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1204 Q C

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Ilona Finkelshteyn, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered March 26, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument on appeal, its evidence was insufficient to establish, as a matter of law, that plaintiff’s assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff is not entitled to summary judgment, as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1163 K C

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. The Law Office of Nancy S. Linden (Nancy S. Linden, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

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 independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered January 30, 2015, the Civil Court denied defendant’s motion and plaintiff’s cross motion, but held that the only issues for trial were whether defendant’s IME scheduling letters had been properly mailed and whether plaintiff’s assignor had failed to appear for the IMEs. Plaintiff appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment.

For the reasons stated in Acupuncture Choice, P.C., as Assignee of Equan Thomason v American Tr. Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1154 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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