Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Law Office of Bryan M. Rothenberg (Kenneth F. Popper, Esq.), for respondent.

Appeal from an amended order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated January 20, 2016. The amended order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

ORDERED that, on the court’s own motion, the notice of appeal from an order dated December 23, 2015 is deemed a premature notice of appeal from the amended order dated January 20, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the amended order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.

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 paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. In an amended order dated January 20, 2016, the District Court granted defendant’s motion in its entirety. On appeal, plaintiff argues that the District Court should have denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016.

Upon a review of the record, we find that defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under [*2]CPT codes 97026 and 97016 in accordance with the workers’ compensation fee schedule (see 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]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the amended 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 for services billed under CPT codes 97026 and 97016 are denied.

Marano, P.J., Garguilo and Brands, JJ., concur.

Decided on April 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on April 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated Jfune 1, 2015. The order, upon a motion by defendant for summary judgment dismissing the complaint with prejudice on the ground that plaintiff’s assignor failed to appear for examinations under oath, granted defendant’s motion to the extent of dismissing the complaint without prejudice on the ground that the action was premature, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In opposition to defendant’s motion, plaintiff attached copies of letters to defendant stating, among other things, that, since its principal had testified at a previous EUO on January 11, 2013, plaintiff had “complied with its obligations under the no-fault regulations.” Plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature, and denied plaintiff’s cross motion.

At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]). In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.

Upon a review of the record, we find that the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the District Court stated that it was granting defendant’s motion because “defendant’s verification request remained outstanding[,] leaving the defendant insurer under no obligation to pay or deny the claim rendering the plaintiff’s claim for payment premature.” Thus, the District Court’s dismissal of the complaint was implicitly without prejudice. However, an appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), and defendant timely denied the claims at issue on that ground. As a result, 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 complaint with prejudice.

We further note that there is no merit to plaintiff’s argument that the order of the District Court should be reversed because it was not made in accordance with CPLR 4213 (b), as that statute pertains to decisions after a bench trial. The record shows that the court determined the parties’ motion and cross motion in accordance with CPLR 2219 (a), the applicable statute.

Accordingly, the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted.

Iannacci, J.P., Tolbert and Brands, JJ., concur.

[*1]

Freiberg, Peck & Kang, LLP, Armonk, NY (Yilo J. Kang of counsel), for appellant.

Catherine M. Charles (Lawrence R. Miles, Long Island City, NY, of counsel), for respondent.

In a proceeding pursuant to CPLR 7511 to vacate two arbitration awards, both dated March 11, 2014, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Silber, J.) entered June 17, 2015, which denied the petition, in effect, dismissed the proceeding, and granted the respondent’s cross petition to confirm the awards.

Ordered that the order and judgment is affirmed, with costs.

Pursuant to Insurance Law § 5105, the respondent, as subrogee of Fatimah Salaam and Kim McCorey, commenced two related loss-transfer arbitration proceedings against the petitioner arising out of payments the respondent made in connection with a collision between two vehicles, one of which had been insured by the petitioner and the other by the respondent. The respondent paid first-party benefits to Salaam and McCorey, who had been passengers in a “for hire” vehicle insured by the respondent that was struck in the rear by the other vehicle, which, at the time of the accident, was insured by the petitioner. The petitioner participated in the arbitration and opposed any payments to the respondent, arguing that, after the accident, it had rescinded its policy retroactively, so that it provided no coverage as of the date of the accident. The arbitrator, rejecting that argument, made two awards in favor of the respondent. The petitioner commenced this proceeding pursuant to CPLR 7511 to vacate the awards, and the respondent cross-petitioned to confirm the awards. In the order and judgment appealed from, the Supreme Court denied the petition and granted the cross petition. The petitioner appeals from the order and judgment, contending, inter alia, that the arbitrator was without jurisdiction to decide the issue and that the arbitrator should have applied Pennsylvania rather than New York law because the subject policy was procured in Pennsylvania. We affirm.

The petitioner’s contention that, pursuant to 11 NYCRR 65-4.11 (a) (6), its “good faith” retroactive denial of insurance coverage divested the arbitrator of jurisdiction is without merit (see State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977-978 [1989]). Insurance Law § 5105 (b) provides that arbitration is the only forum in which a loss-transfer claim may be litigated (see Paxton Natl. Ins. Co. v Merchants Mut. Ins. Co., 74 AD2d 715, 716 [1980]). Moreover, “the contention that a claim proposed to be submitted to arbitration is in excess of the arbitrator’s power is waived unless raised by an application for a stay” (Matter of Silverman [Benmor Coats], 61 NY2d [*2]299, 309 [1984]; see Matter of Allstate Ins. Co. v New York Petroleum Assn. Compensation Trust, 104 AD3d 682 [2013]; Matter of Philadelphia Ins. Co. [Utica Natl. Ins. Group], 97 AD3d 1153 [2012]; Matter of Utica Mut. Ins. Co. v Incorporated Vil. of Floral Park, 262 AD2d 565 [1999]). By failing to apply for a stay of arbitration before arbitration, the petitioner waived its contention that the claim is not arbitrable under Insurance Law § 5105 (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]; Matter of County of Onondaga [Civil Serv. Empls. Assn.], 248 AD2d 1026 [1998]; Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]; Matter of Arner v Liberty Mut. Ins. Co., 233 AD2d 321 [1996]).

The petitioner also failed to establish any basis under CPLR 7511 (b) (1) to vacate the arbitration awards (see Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Moreover, any possible error by the arbitrator in applying New York law (see Vehicle and Traffic Law § 313 [1] [a]) rather than Pennsylvania law does not provide a basis for vacatur (see Matter of Yarmak v Penson Fin. Servs. Inc., 146 AD3d 642 [2017]).

The petitioner’s remaining contention is without merit.

Accordingly, we affirm the order and judgment. Rivera, J.P., Roman, Miller and Duffy, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Emilia I. Rutigliano, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate a prior order of the same court entered January 16, 2014 granting, on consent, plaintiff’s motion for summary judgment, and the judgment entered pursuant thereto on February 20, 2014, and, upon such vacatur, for summary judgment dismissing the complaint.

ORDERED that 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, after one adjournment, the Civil Court, by order entered January 16, 2014, granted the motion without opposition from defendant. The order states, “[b]oth sides agreed to the above and will not appeal this order.” A judgment was entered pursuant to that order on February 20, 2014. Subsequently, defendant moved to vacate the judgment and order, arguing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion, finding that defendant had not provided a reasonable excuse for its default.

Since the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Hallock v State of New York, 64 NY2d 224 [1984]; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing. Accordingly, the order denying defendant’s motion is affirmed, albeit on a different ground.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decided on April 13, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Fourth District (David A. Morris, J.), dated January 30, 2015. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee schedule.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee schedule is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing, among other things, so much of the complaint as sought to recover a specified amount which, defendant claimed, was in excess of the amount permitted by the workers’ compensation fee schedule. In opposition to the motion, plaintiff submitted an affirmation by its counsel and an affidavit of medical necessity. The District Court denied that branch of defendant’s motion, finding that defendant had failed to establish that it had timely denied the claims.

Contrary to the determination of the District Court, defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]) its denial of claim forms. Furthermore, defendant made a prima facie showing that the amount plaintiff sought to recover was in excess of the amount permitted by the applicable workers’ compensation fee schedules. In opposition, plaintiff failed to proffer evidence in admissible form sufficient to raise a triable issue of fact with respect to defendant’s fee schedule defense.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee [*2]schedule is granted.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Dash Law Firm, P.C. (Melissa R. Abraham-Lofurno, Esq.), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered September 9, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $8,382.42.

ORDERED that, on the court’s own motion, the notice of appeal from a proposed judgment submitted to the District Court on August 18, 2014 is deemed a premature notice of appeal from the judgment entered September 9, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment entered September 9, 2014 is reversed, without costs, and the matter is remitted to the District Court for a new trial.

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the District Court awarded plaintiff judgment in the principal sum of $8,382.42. On appeal, defendant challenges the District Court’s refusal to grant defendant an adjournment for defendant to call its sole witness, a medical expert, to testify as to the only issue for trial, the medical necessity of the services rendered. On the first trial date at issue, July 14, 2014, a Monday, defendant requested an adjournment, stating that its witness could not testify on Mondays. After plaintiff’s witness testified, the court agreed to continue the trial, but did not announce a date. The trial was subsequently rescheduled to August 18, 2014, another Monday. At that date, defendant again requested an adjournment, stating that its witness could not testify on Mondays without at least eight weeks’ notice. That request was denied, and a judgment was entered in favor of plaintiff.

The testimony of defendant’s expert “was critical to the sole contested liability issue in the case” (Bronx Expert Radiology, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 133[A], 2007 NY Slip Op 50113[U], *1 [App Term, 1st Dept 2007]), and there is no evidence in the record that defendant was merely seeking to delay the trial. Moreover, defendant informed the court of its witness’s inability to appear on Mondays and was also willing to try to have its witness appear on a Monday if required. Thus, in the circumstances presented, we find that the District Court improvidently exercised its discretion in refusing to grant defendant an adjournment or to reschedule the trial for a day other than a Monday or to a Monday more than eight weeks later [*2](see e.g. Byrnes v Varlack, 17 AD3d 616 [2005]; Canty v McLoughlin, 16 AD3d 449 [2005]; Matter of Shepard, 286 AD2d 336 [2001]; Azapinto v Jamaica Hosp., 297 AD2d 301 [2002]; Wai Ming Ng v Tow, 260 AD2d 574 [1999]; Bouima v Dacomi, Inc., 28 Misc 3d 65 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

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

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decided on April 13, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS