Decided on November 12, 2015

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

Decided on November 12, 2015

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 18, 2012. The judgment, entered pursuant to a decision of the same court dated September 14, 2012, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 14, 2012 is deemed a premature notice of appeal from so much of the judgment entered December 18, 2012 as awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the parties’ attorneys stipulated that the only issue to be tried concerned the third cause of action, for which plaintiff sought to recover the principal sum of $8,220.17. It was further stipulated that defendant’s witness was an expert. The trial proceeded solely upon defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of plaintiff on the third cause of action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary. As we find no basis to disturb the Civil Court’s findings, the judgment, insofar as appealed from, is affirmed.

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

Decided on November 12, 2015

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, Kings County (Katherine A. Levine, J.), entered January 31, 2013. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant’s investigation.

Contrary to plaintiff’s arguments, 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 v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney, who was present in his office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.

With respect to plaintiff’s contention that defendant failed to demonstrate justification for its EUO requests, the Appellate Division, Second Department, has held that where an insurer moves for summary judgment dismissing the complaint on the ground that a provider’s assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish “as a matter of law that it twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider’s] treatment of the assignor” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Moreover, a review of the record in Interboro Ins. Co. v Clennon (113 AD3d 596) reveals that in that case, the provider argued, as does plaintiff herein, that the insurer’s motion should have been denied pursuant to CPLR 3212 (f), as the provider had not received discovery regarding the reasonableness of defendant’s EUO requests, and that, even if there had been a failure to appear for two duly scheduled EUOs, the insurer had to show that the failure to appear constituted willful obstruction of the insurer’s investigation. In finding for the insurer, the Appellate Division, Second [*2]Department, stated the following:

“the [providers] failed to establish that summary judgment was premature in light of outstanding discovery. A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or [that] the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ (Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; see CPLR 3212 [f]). Here, in support of their contention that the [insurer’s] motion was premature, the [providers] did not establish what information they hoped to discover that would demonstrate the existence of a triable issue of fact” (113 AD3d at 597).

Similarly, in the instant case, plaintiff did not establish what information it hoped to discover that would demonstrate the existence of a triable issue of fact (cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]).

Accordingly, the order is affirmed.

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

Decided on November 9, 2015

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 (William A. Viscovich, J.), entered March 25, 2013. 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 the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, third and fifth 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. The first, second, third and fifth causes of action were dismissed as premature because plaintiff had failed to provide requested verification. The fourth cause of action was dismissed based on the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first, second, third and fifth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first, second, third and fifth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME and EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123), [*2]that plaintiff’s assignor had failed to appear for the duly scheduled IMEs and EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims underlying the fourth cause of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and plaintiff failed to raise a triable issue of fact, defendant was entitled to summary judgment dismissing this cause of action.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

ORDERED that the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings; as so modified, the judgment 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. By order entered February 6, 2013, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment upon the second, third, and fifth through ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. As limited by its brief, defendant appeals from so much of the order as granted the branches of plaintiff’s motion seeking summary judgment on the second, third, eighth and ninth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was entered on March 13, 2013, pursuant to the February 6, 2013 order, awarding plaintiff the principal lump sum of $1,255.70 upon the second, third, and fifth through ninth causes of action. The appeal from the order is deemed to be from so much of the judgment as was in favor of plaintiff on the second, third, eighth and ninth causes of action (see CPLR 5501 [c]).

The affidavit by defendant’s claims representative was sufficient to establish that [*2]defendant did not receive the claim forms underlying plaintiff’s third, eighth and ninth causes of action. However, since the affidavit from plaintiff’s owner demonstrated that the claim forms had been mailed to defendant, there is an issue of fact as to whether defendant’s time to pay or deny these claims ever began to run (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As a result, plaintiff is not entitled to summary judgment on its third, eighth and ninth causes of action.

Upon receiving the claim underlying the second cause of action, defendant sent letters notifying plaintiff that defendant was delaying payment thereon, but the letters did not request any specific verification. Consequently, contrary to defendant’s contention, these delay letters did not toll the statutory time period within which defendant was required to pay or deny the claim underlying the second cause of action (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, 11th & 13th Jud Dists [2010]). As the first letter that defendant sent to schedule plaintiff’s assignor’s examination under oath was sent more than 30 days after defendant had received the claim underlying the second cause of action, the 30-day period within which defendant was required to pay or deny this claim had already expired.

Accordingly, the judgment, insofar as appealed from, is modified by vacating so much thereof as was in favor of plaintiff on the third, eighth and ninth causes of action, as well as so much of the order entered February 6, 2013 as granted the branches of plaintiff’s motion seeking summary judgment upon those causes of action, those branches of plaintiff’s motion are denied, and the matter is remitted to the Civil Court for the entry of a new judgment in favor of plaintiff upon the second and fifth through seventh causes of action, and for all further proceedings.

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

Decided on November 9, 2015

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

Decided on November 9, 2015

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