Decided on October 27, 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
NO. 2014-2417 K C

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 20, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and to compel defendant to respond to discovery demands.

ORDERED that the order 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 had failed to appear for duly scheduled examinations under oath. Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

For the reasons stated in Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is affirmed.

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

Decided on October 27, 2017

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

Decided on October 27, 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
NO. 2014-2247 K C

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 8, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and to compel defendant to respond to discovery demands.

ORDERED that the order 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 had failed to appear for duly scheduled examinations under oath. Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

For the reasons stated in Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (51 Misc 3d 143[A], 2016 NY Slip Op 50698[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is affirmed.

Decided on October 27, 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
NO. 2014-2225 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 (Ingrid Joseph, J.), entered August 4, 2014. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims (1) in the sums of $3,495, $2,695 and $1,965, and (2) in the sums of $2,550 and $1,900, to the extent of reducing the amount in controversy on those two claims to a total of $647.53, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $3,495, $2,695 and $1,965 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, defendant moved for summary judgment dismissing so much of the complaint as sought to recover on claims in the sums of $3,495, $2,695 and $1,965, alleging that it had timely paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule, and for summary judgment dismissing so much of the complaint as sought to recover on claims in the sums of $2,550 and $1,900 on the ground that the services at issue lacked medical necessity. Defendant also argued that, in the event the Civil Court determined that the services underlying the claims for $2,550 and $1,900 were medically necessary, those claims should be reduced in accordance with the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. By order entered August 4, 2014, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims in the sums of $3,495, $2,695 and $1,965. With regard to the other two claims, the court found that there was a triable issue of fact as to the medical necessity of the services at issue, but reduced the amount in controversy on those two claims to a total of $647.53. Plaintiff’s cross motion for summary judgment was denied. Plaintiff appeals.

Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that defendant had timely denied the claims for $3,495, $2,695 and $1,965 (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). 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 so much of the complaint as sought to recover those sums.

Plaintiff’s arguments with respect to the reduction of the amount in controversy on the remainder of the complaint are without merit.

Furthermore, contrary to its contention, plaintiff 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 motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $3,495, $2,695 and $1,965 are denied.

Decided on October 27, 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
NO. 2014-2192 K C

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 19, 2014. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (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 St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; 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]). As plaintiff failed to raise a triable issue of fact in opposition, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively.

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for $182.84 and $479.60, respectively, are granted.

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

Decided on October 27, 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
NO. 2014-2160 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Tasnim Hassanali, 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 18, 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 the action was premature because plaintiff had failed to provide requested verification.

As plaintiff argues, its affidavit 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the 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]).

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

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

Decided on October 27, 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
NO. 2014-2139 K C

Gary Tsirelman, P.C. (Stefan Belinfanti, Esq.), for appellant. Law Offices of Lawrence R. Miles (Thomas Wolf, 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 18, 2014. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied and the branch of plaintiff’s cross motion seeking summary judgment on that part of the complaint is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered July 18, 2014, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that defendant had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff appeals, as limited by its brief, from so much of the order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not [*2]provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request “any additional verification required by the insurer to establish proof of claim” (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The record demonstrates that defendant received the claim form and that, with respect to the services at issue, its denial of the claim was based upon a failure to provide documentation. Plaintiff correctly argues that, because defendant never requested such documentation, defendant’s denial of claim form is without merit as a matter of law. Consequently, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 should have been denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint should have been granted (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 reversed, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied and the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Decided on October 27, 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
NO. 2014-2046 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of James F. Sullivan, P.C. (James F. Sullivan, 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 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 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. Defendant’s cross motion was based on plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations and on the ground that the amounts plaintiff sought exceeded the workers’ compensation fee schedule.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the verification requests and 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 dismissing the complaint.

However, contrary to plaintiff’s contention, 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 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, [*2]11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.

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

Decided on October 27, 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
NO. 2014-1842 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, 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 22, 2014. The order granted defendant’s motion for leave to reargue its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered May 23, 2014, and, upon reargument, in effect, vacated the order dated May 23, 2014, and thereupon granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered July 22, 2014 is reversed, with $30 costs, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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 defendant had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Defendant alleged that it had reduced the payment for CPT Code 20553 in accordance with the fee schedule, attaching the page of the fee schedule setting forth the appropriate relative value. However, it did not provide the conversion factor or provide an explanation for the reduction. By order entered May 23, 2014, the Civil Court denied defendant’s motion. Defendant subsequently moved for leave to reargue its prior motion and, upon reargument, for summary judgment dismissing the complaint. By order entered July 22, 2014, the Civil Court granted reargument and, upon reargument, in effect, vacated the May 23, 2014 order and granted defendant’s motion for summary judgment dismissing the complaint.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). Here, defendant did not allege that the Civil Court had overlooked or misapprehended any matters of fact or law in denying its motion for summary judgment. Rather, defendant’s attorney alleged, for the first [*2]time, that the fee schedule reduction had been based upon a calculation, and attached, for the first time, the page of the fee schedule setting forth the appropriate conversion factor. As this is not a proper basis for seeking leave to reargue, and defendant did not seek leave to renew its prior motion or provide an explanation for its failure to present the relevant facts on its prior motion (see CPLR 2221 [e] [3]), defendant’s motion for leave to reargue should have been denied.

Accordingly, the order entered July 22, 2014 is reversed, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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

Decided on October 27, 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
2014-1718 K C

Gary Tsirelman, P.C. (Joseph Padrucco, 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, Kings County (Wavny Toussaint, J.), entered March 6, 2012. The order denied plaintiff’s motion to vacate a prior order of the same court (Carolyn E. Wade, J.) entered May 2, 2011 granting, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 6, 2012 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Carolyn E. Wade, J.), by order entered May 2, 2011, granted, on default, defendant’s motion for summary judgment dismissing the complaint, declining to consider plaintiff’s late opposition to the motion. Plaintiff subsequently moved, pursuant to CPLR 5015 (a) (1), to vacate the order entered May 2, 2011. Plaintiff appeals from an order of the Civil Court (Wavny Toussaint, J.), entered March 6, 2012, which denied that motion.

In support of its motion, plaintiff was required to establish, among other things, a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, plaintiff failed to demonstrate that it had a reasonable excuse for failing to timely submit written opposition to defendant’s prior motion, as the excuse offered by plaintiff’s attorney was, in effect, that her late submission “was the result of her heavy workload,” which “amount[s] to nothing more than mere neglect, which is not accepted as an excusable default” (A.B. Med., PLLC v CNA Ins. Co., 46 Misc 3d 144[A], 2015 NY Slip Op 50199[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Strunk v Revenge Cab Corp., 98 AD3d 1029 [2012]; State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

In view of the lack of an excusable default, it is unnecessary to consider whether plaintiff sufficiently demonstrated the existence of a potentially meritorious opposition to defendant’s motion for summary judgment (see Levi v Levi, 46 AD3d 519 [2007]).

Accordingly, the order entered March 6, 2012 is affirmed.

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