Decided on July 21, 2017

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

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 (William A. Viscovich, J.), entered May 16, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth causes 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. Insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing the first, second and fifth causes of action on the ground that these causes of action sought to recover upon the unpaid portions of the underlying claims, which amounts exceeded the amounts permitted by the workers’ compensation fee schedule. Defendant also sought summary judgment dismissing the sixth through eighth causes of action on the ground of lack of medical necessity. By order entered May 16, 2014, insofar as is relevant to this appeal, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first, second and fifth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, and fifth through eighth causes of action.

In support of the branches of its cross motion seeking summary judgment dismissing the sixth through eighth causes of action, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition to those branches of defendant’s cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Contrary to plaintiff’s contention, the affidavit executed by defendant’s expert professional coder, submitted in support of the branches of defendant’s cross motion seeking summary judgment dismissing the first, second and fifth causes of action, established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in these causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

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

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

Decided on July 21, 2017

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

Gullo & Associates, LLP (Cristina Carollo, Esq.), for appellant. Gary Tsirelman, P.C. (Daria Klein, 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 28, 2014. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s contention, the Civil Court properly held that defendant had failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters. Defendant’s moving papers stated that IME scheduling letters are sent to the address the assignor puts on the NF-2 form or to the address which is provided by the assignor’s counsel. While defendant further stated that a copy of the NF-10 denial of claim form is sent to the plaintiff’s assignor, the address to which the IME scheduling letter was sent was “East 107th St,” while the NF-10 form stated that the assignor resided on “East 106th St.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. [*2]Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decided on July 21, 2017

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

Decided on July 21, 2017

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

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 (Jodi Orlow, J.), entered April 23, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through 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 affirmed, with $25 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 its first through fourth causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

Contrary to plaintiff’s contention, defendant demonstrated that it had not received the requested verification and, thus, that plaintiff’s fourth cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Furthermore, the affidavit executed by defendant’s professional coder established that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue in the second and third causes of action (see e.g. Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). To the extent plaintiff asserts that defendant failed to establish that payment of the amount at issue in the first cause of action had been timely mailed, such argument will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). As plaintiff failed to demonstrate the existence of a triable issue of fact with respect [*2]to the second through fourth causes of action, the order, insofar as appealed from, is affirmed.

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

Korsunskiy Legal Group, P.C. (Michael Hoenig, 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, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. 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 modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $290.74 and $210.72 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 and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In addition, plaintiff’s argument that defendant failed to establish the mailing of the letters scheduling the independent medical examinations (IMEs) lacks merit. Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard [*2]mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

However, with respect to the branches of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims in the sums of $290.74 and $210.72, defendant’s moving papers did not establish that these claims had been timely denied. 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 these claims. To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; 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 upon these claims as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $290.74 and $210.72 are denied.

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

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie Tebbett, 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 17, 2014. The order granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery.

ORDERED that so much of the appeal as is from the portion of the order that, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery is dismissed, as that portion of the order is not appealable as of right (see CCA 1702 [a] [2]) and leave to appeal therefrom has not been granted; and it is further,

ORDERED that the order, insofar as reviewed, 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 cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).

Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Accordingly, the [*2]order, insofar as reviewed, is affirmed.

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

Decision Date: July 21, 2017

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Epstein, Gialleonardo, Harms & McDonald (John K. Corrigan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 31, 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, defendant moved for summary judgment dismissing the complaint, arguing that it had properly used the workers’ compensation fee schedule applicable to chiropractors who render the same services as acupuncturists to reimburse plaintiff for the acupuncture services plaintiff had rendered. Plaintiff opposed the motion. The Civil Court granted defendant’s motion.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant established its entitlement to judgment as a matter of law.

We note that plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (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.

Decision Date: July 21, 2017