Decided on November 21, 2016

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

Decided on November 17, 2016

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

Decided on November 17, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 5, 2014. The order denied defendant’s motion for leave to renew its motion for summary judgment dismissing the complaint, which prior motion had been denied in an order of the same court (Maureen A. Healy, J.) entered November 4, 2013.

ORDERED that the order entered February 5, 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 it had timely denied plaintiff’s claims based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 4, 2013, the Civil Court (Maureen A. Healy, J.) denied defendant’s motion on the ground that defendant had failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs, citing this court’s decision in 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]), which was decided while defendant’s motion was pending. In Alrof, this court held that this court’s earlier determination in W & Z Acupuncture, P.C. v Amex Asset Co. (24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2009]) should no longer be followed.

In November 2013, defendant moved for leave to renew its motion for summary judgment and submitted in support thereof an affidavit containing new facts, which affidavit, defendant contended, was sufficient under Alrof, to establish plaintiff’s nonappearance at the EUOs. By order entered February 5, 2014, the Civil Court (Jodi Orlow, J.) denied the renewal motion on the ground that defendant had failed to set forth any new facts not previously available or to show a change in the law.

While we disagree with the Civil Court’s determination that defendant’s motion failed to satisfy the requirements of CPLR 2221 (e), turning to the merits of defendant’s motion, we conclude that defendant failed to establish its entitlement to summary judgment.

With respect to the claim comprising the thirty-first cause of action, defendant failed to support the conclusory statement by its claim representative that the claim was “never mailed” to defendant. As to the remaining claims, defendant failed to establish that the denials were timely. The EUO scheduling letters were not sent within 30 days of the insurer’s receipt of each of the claims (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op [*2]50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and we note that delay letters, which request no verification, do not toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Consequently, we need not reach the issue of whether defendant properly established plaintiff’s nonappearance at the EUOs.

Accordingly, we affirm the February 5, 2014 order, albeit on a ground other than that stated by the Civil Court.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Peter C. Merani, P.C., New York City (Eric M. Wahrburg of counsel), for respondent.

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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the insurance policy covering the vehicle allegedly involved in the March 26, 2010 motor vehicle accident had been terminated on March 16, 2010, prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s motion for summary judgment.

In support of its cross motion, defendant submitted its senior field support representative’s affidavit accompanied by documents which, together, demonstrated that, on December 17, 2009, in compliance with Vehicle and Traffic Law § 313 (1), defendant had mailed a letter to the policyholder notifying it that, due to “missing information or no response to our underwriting inquiry,” the policy would terminate on March 16, 2010. However, although the affidavit referred to an annexed{**54 Misc 3d at 48} document purportedly showing a record of defendant’s March 17, 2010 notification to the Department of Motor Vehicles (DMV) of defendant’s March 16, 2010 termination of the policy, these submissions did not conclusively establish, as a matter of law, that defendant’s notice of termination had been properly filed with the DMV (see e.g. Matter of Government Empls. Ins. Co. v Barthold, 194 AD2d 724 [1993]). As defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of termination, upon which its defense is based, with the DMV within 30 days of the effective date of the policy’s termination, as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]), defendant did not show that the cancellation was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

With respect to plaintiff’s motion for summary judgment, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either 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 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]). Thus, 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.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered August 1, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $591.10. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 and denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is deemed to be an appeal from a judgment of the same court entered November 20, 2014 awarding plaintiff the principal sum of $591.10 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered August 1, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 is vacated and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits on three claims, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity, based on two peer review reports. Plaintiff opposed the motion and separately moved for summary judgment. Defendant appeals, as limited by its brief, from so much an order of the Civil Court entered August 1, 2014 as denied defendant’s motion and granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for $591.10. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 and denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim is deemed to be an appeal from a judgment of the same court entered November 20, 2014 awarding plaintiff the principal sum of $591.10 (see CPLR 5512 [a]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment on so much of the complaint as sought to recover upon the claim for $591.10, as the papers submitted by plaintiff in support of its motion failed to establish that the claim was not timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that the denial 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]).

We further find that neither of the peer review reports submitted by defendant sufficiently set forth a factual basis or medical rationale establishing that the supplies at issue were not [*2]medically necessary. Therefore, there is an issue of fact as to the medical necessity of the supplies underlying all three claims at issue, and, thus, defendant is not entitled to summary judgment on any claim.

Accordingly, the judgment is reversed, so much of the order entered August 1, 2014 as granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $591.10 is vacated and that branch of plaintiff’s motion is denied. The order, insofar as reviewed on direct appeal, is affirmed.

Solomon, J.P., Weston and Elliot, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 28, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint, or, in the alternative, to compel a deposition of plaintiff’s treating doctor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel a deposition of plaintiff’s treating doctor 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 or, in the alternative, to compel plaintiff’s treating doctor to appear for a deposition. The Civil Court denied defendant’s motion but, in effect, limited the issues for trial pursuant to CPLR 3212 (g), finding that the only remaining issue for trial was medical necessity. As limited by its brief, defendant appeals from so much of the order as denied its motion.

Upon a review of the record, we find that, as to both claims at issue, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branch of defendant’s motion seeking summary judgment was properly denied.

However, as the deposition of plaintiff’s treating doctor is material and necessary to defendant’s defense of this action (see CPLR 3101 [a]; Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 48 Misc 3d 136[A], 2015 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), defendant is entitled to such discovery.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel a deposition of plaintiff’s treating doctor is granted.

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

Decided on November 1, 2016

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

Decided on November 1, 2016

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

Decided on November 1, 2016

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