Decided on September 22, 2017

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

Decided on September 22, 2017

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

Decided on September 22, 2017

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

Decided on September 22, 2017

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

The Rybak Firm, PLLC (Damien J. Toell, Esq.), for appellant. Epstien, Gialleonardo, Harms & McDonald (Athena T. Buchanan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered March 21, 2014. 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 through third 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first through third causes of action, as the EUO requests at issue had been sent more than 30 days after defendant had received the claims underlying those causes of action, and, therefore, the requests were nullities with respect to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing those causes of action should have been denied.

However, contrary to plaintiff’s arguments, defendant did establish that it had timely mailed the initial and follow-up EUO scheduling letters and denials of the claims underlying the [*2]fourth through sixth causes of action (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]). Consequently, we leave undisturbed so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing those causes of action.

Plaintiff’s remaining arguments lack merit.

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

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 2, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, fourth and fifth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action is 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 on the ground that defendant had fully paid plaintiff for the services underlying the first, fourth and fifth causes of action in accordance with the workers’ compensation fee schedule, and that it had not received the claims underlying the remaining causes of action. Plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, fourth and fifth causes of action.

Plaintiff correctly argues that defendant failed to establish that its denial of the claim underlying the fourth cause of action was timely (see 11 NYCRR 65-3.8 [a] [1]) and that, therefore, its fee schedule defense as to that claim is not precluded (see Great Wall Acupuncture, [*2]P.C. v GEICO Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52308[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action is denied. However, plaintiff failed to demonstrate its entitlement to summary judgment on this claim, as the proof submitted by plaintiff did not 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 form 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]).

Contrary to plaintiff’s further argument, defendant’s proof was sufficient to demonstrate, prima facie, that defendant had fully paid for the services charged under code 64550 of 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]). Plaintiff failed to rebut that showing. Consequently, we do not disturb so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action.

As to the remaining causes of action, we find, contrary to plaintiff’s argument, that there is a triable issue of fact as to whether defendant received the claims underlying those causes of action.

We note that plaintiff’s claim that one of defendant’s affidavits was not signed or notarized is contradicted by the record.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action is denied.

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Mandell and Santora (Michael J. Rago, 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 September 29, 2015. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.

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 answered the complaint and served demands for discovery, including a notice to take the deposition of plaintiff. Upon plaintiff’s failure to appear, defendant moved to, among other things, compel plaintiff’s treating doctor to attend a deposition or to preclude plaintiff from offering evidence at trial. By order entered April 20, 2015, the Civil Court, insofar as is relevant to this appeal, found that, upon plaintiff’s establishment of a prima facie case, the sole issues for trial would be limited to the medical necessity of the services rendered and whether the claims had been properly billed in accordance with the workers’ compensation fee schedule. The court directed defendant to serve another notice of deposition and stated that plaintiff’s failure to appear would result in the preclusion of testimony at trial with respect to medical necessity and the fee schedule. Defendant did not appeal from the order entered April 20, 2015. Thereafter, defendant moved, pursuant to CPLR 3126 (3), to dismiss the complaint on the ground that plaintiff had failed to comply with the demand for a deposition. Plaintiff opposed the motion and argued that the prior order of the Civil Court had not provided for dismissal of the complaint as a penalty for noncompliance. Defendant appeals from so much of an order of the Civil Court entered September 29, 2015 as denied defendant’s motion to dismiss the complaint. The order also precluded plaintiff from offering testimony at trial pertaining to the medical necessity of the services rendered and whether the services had been billed in accordance with the workers’ compensation fee schedule.

While defendant argues that the complaint should have been dismissed, ” a trial court is [*2]given broad discretion to oversee the discovery process’ ” (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]). The determination of the nature and degree of the penalty to be imposed pursuant to CPLR 3126 for failing to comply with an order compelling disclosure lies within the discretion of the motion court (see Kihl v Pfeffer, 94 NY2d 118, 122-123 [1999]; Morano v Westchester Paving & Sealing Corp., 7 AD3d 495 [2004]; Jaffe v Hubbard, 299 AD2d 395 [2002]). The motion court’s determination of whether to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR, and the terms and conditions of any sanctions imposed, should not be disturbed on appeal absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]).

Upon a review of the record before us, we find that the Civil Court did not improvidently exercise its discretion in declining to dismiss the complaint and, instead, precluding plaintiff’s testimony at trial with respect to the medical necessity of the services rendered and whether the claims had been properly billed in accordance with the workers’ compensation fee schedule (see CPLR 3126 [2]).

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

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

Decided on September 15, 2017

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

Matthew Brew & Associates, LLC (Matthew Brew, Esq.), for appellant. Law Office of Cohen & Jaffe, LLP (Aaron J. Perretta, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulyssses Bernard Leverett, J.), entered July 22, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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 it had timely and properly denied the claims at issue based on the failure of plaintiff’s assignor to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion and, upon denying plaintiff’s cross motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

In support of its motion for summary judgment dismissing the complaint, defendant submitted an affidavit from the doctor who was to perform the IMEs which failed to demonstrate upon personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), that plaintiff’s assignor had failed to appear for the IMEs. Thus, defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720).

Furthermore, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2014]).

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

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

Decided on September 15, 2017

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