Decided on December 8, 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
2014-2629 K C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Gregory W. Broido, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Shears, J.), entered October 3, 2014. 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 arguments on appeal, defendant established that plaintiff had failed to appear for properly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that the claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

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

Decided on December 8, 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
2014-2313 K C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2014. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

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 or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Insofar as is relevant to this appeal, upon denying plaintiff’s motion for summary judgment and the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, the Civil Court implicitly denied the branch of defendant’s cross motion seeking, in [*2]the alternative, to compel plaintiff to appear for an EBT.

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

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

Decided on December 8, 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
2014-2266 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered June 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action 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 moved for summary judgment dismissing the complaint on the grounds that the first cause of action was premature due to plaintiff’s failure to provide verification and that plaintiff had submitted the claim underlying the second cause of action more than 45 days after the medical supplies at issue had been furnished. By order entered June 19, 2014, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof with respect to the claim underlying the first cause of action was sufficient to demonstrate, prima facie, that defendant had properly [*2]mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and, thus, that the cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff’s employee in opposition to defendant’s motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the first cause of action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Contrary to plaintiff’s additional contention, the record establishes that the claim underlying the second cause of action had been untimely submitted(see 11 NYCRR § 65-1.1) and that defendant had timely denied the claim on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In opposition, plaintiff failed to raise a triable issue of fact with respect thereto.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

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

Decided on December 8, 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
2014-2246 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 25, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking (1) summary judgment dismissing the first three causes of action, stating that the only claims remaining were for $80 and $569.66, and (2) to compel plaintiff to comply with defendant’s discovery demands.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is denied and by striking so much of the order as stated that claims for $80 and $569.66 remained, and, upon searching the record, the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees, is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint sets out four causes of action, seeking $2,998.64, $813.80, $222.76, and interest and attorney’s fees, respectively. Plaintiff moved for summary judgment, attaching a bill for $2,998.64, for [*2]services rendered September 7, 2011 through January 1, 2012, a bill for $813.80 for services rendered January 17, 2012 through February 13, 2012, and a bill for $222.76 for services rendered April 5, 2012 through April 17, 2012. Defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to comply with defendant’s discovery demands. By order entered July 25, 2014, the Civil Court denied plaintiff’s motion for summary judgment, found that defendant had established certain payments and granted the branches of defendant’s cross motion seeking summary judgment “as to [those] amounts,” stated that the only claims remaining were $80 for an office visit on August 8, 2011 and $569.66 for services rendered August 26, 2011 through September 8, 2011, and granted the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands.

On appeal, plaintiff fails to explicitly raise any argument with respect to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint. The claims for $80, for an office visit on August 8, 2011, and $569.66, for services rendered August 26, 2011 through September 8, 2011, which the Civil Court specifically stated were to remain for trial, and upon which plaintiff seeks summary judgment on appeal, were not part of the complaint or, for that matter, the basis for plaintiff’s motion for summary judgment. Thus, so much of the order as stated that claims for $80 and $569.66 remained is stricken.

Plaintiff makes a mailing argument which appears to be limited to the denial of the $80 claim, which argument we do not pass upon because that claim is not part of this action. To the extent that plaintiff’s argument was meant to apply to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, we find that the argument lacks merit.

As the Civil Court awarded defendant summary judgment dismissing all of plaintiff’s causes of action seeking to recover on unpaid claims, and plaintiff has not provided a basis to disturb that part of the order, the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is moot and, upon searching the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that defendant is entitled to summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to comply with defendant’s discovery demands is denied and by striking so much of the order as stated that claims for $80 and $569.66 remained, and, upon searching the record, the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action, which sought interest and attorney’s fees, is granted.

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

Decided on December 8, 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
2014-2201 K C

Gary Tsirelman, P.C. (Sebastian Melo, Esq.), for appellant. Gialleonardo, McDonald & Turchetti (Yael Ryzowy, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.) entered August 14, 2014. The order denied plaintiff’s motion for leave to renew its opposition to defendant’s motion for summary judgment dismissing the complaint, which had been granted in a prior order of the same court entered March 7, 2013.

ORDERED that the order entered August 14, 2014 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 duly scheduled independent medical examinations (IMEs). Upon denying defendant’s motion, the Civil Court, by order entered March 7, 2013, found, in effect, pursuant to CPLR 3212 (g), that defendant had established the generation of the IME scheduling letters and NF-10s, and that plaintiff’s assignor had failed to appear for IMEs. Plaintiff subsequently moved for leave to renew its opposition to defendant’s motion, based upon a trial transcript from an unrelated case, which transcript set forth that the name that defendant’s IME scheduling letters said to contact to reschedule the IMEs, Lynn Carter, was a pseudonym—there was no such employee—and that this was a fact which, plaintiff asserted, would change the prior [*2]determination since, in the instant case, plaintiff’s assignor was also instructed to contact Lynn Carter if plaintiff’s assignor needed to reschedule the IMEs. By order entered August 14, 2014, the Civil Court denied plaintiff’s motion.

For the reasons stated in Brand Med. Supply, Inc., as Assignee of Jeffrey Ferguson v ELRAC, Inc. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-2323 K C], decided herewith), the order entered August 14, 2014 is affirmed.

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

Decided on December 8, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on December 8, 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
2014-2109 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 25, 2014. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

All of plaintiff’s arguments as to why defendant’s cross motion for summary judgment should have been denied are not properly before this court, since they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order is affirmed.

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

Decided on December 8, 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
2014-2087 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through third causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment on the first through third causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

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 the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule, defendant is not entitled to summary judgment dismissing the first three causes of action.

However, contrary to plaintiff’s contention, it failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish 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 denials of claim 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, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through third causes of action are denied.

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

Decided on December 8, 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
2014-2086 Q C

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 5, 2014, deemed from a judgment of the same court entered August 21, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 5, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,344.87.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered August 5, 2014 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the [*2]proof submitted by plaintiff in support of its motion failed to establish that the claim 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 a timely denial of claim that was 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]). As plaintiff failed to establish its prima facie case, its motion for summary judgment should have been denied.

However, the Civil Court properly denied defendant’s cross motion for summary judgment. Contrary to defendant’s contention, the papers submitted in support of its cross motion did not establish, as a matter of law, that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) or that plaintiff’s assignor had failed to appear for independent medical examinations (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

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

Decided on December 8, 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
2014-2041 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 4, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fourth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second and fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, its defense that the fees charged with respect to the services underlying the causes of action at issue exceeded the amounts set forth in the workers’ compensation fee schedule therefor (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant failed to demonstrate that it had used the correct conversion factor in calculating the reimbursement rate, or that it had appropriately applied Ground Rule 11. Consequently, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action should have been denied. However, contrary to plaintiff’s final contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment with respect to those causes of action, as the affidavit plaintiff submitted in support of its motion failed to establish 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 denials of claim 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, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fourth causes of action are denied.

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