Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered March 21, 2013. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010.

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, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint to the extent of dismissing without prejudice so much of the complaint as sought to recover upon a claim for $909 for supplies furnished on November 9, 2010 and dismissing with prejudice so much of the complaint as sought to recover upon claims for supplies furnished on September 7, 2010 and November 9, 2010, which defendant denied pursuant to the workers’ compensation fee schedule.

Contrary to plaintiff’s contention, defendant demonstrated prima facie that it had not received the verification requested with respect to plaintiff’s claim for $909 for supplies furnished on November 9, 2010 and plaintiff did not show that such verification had been provided to defendant prior to the commencement of the action. As a result, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, so much of plaintiff’s complaint as sought to recover upon this claim is premature.

Similarly, the affidavit by defendant’s claims representative was sufficient to demonstrate prima facie that defendant had properly denied plaintiff’s claims for supplies furnished on September 7, 2010 and November 9, 2010 pursuant to the workers’ compensation fee schedule. In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact with respect thereto. In addition, the arguments which plaintiff has raised for the first time on appeal [*2]are not properly before this court, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2013. The order, insofar as appealed from and as limited by the brief, upon denying the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff’s favor with respect to that cause of action, granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action, and denied the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action. So much of the notice of appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon the second cause of action is deemed to be a notice of appeal from a judgment of the same court entered March 15, 2013, awarding plaintiff the principal sum of $735 (see CPLR 5512 [a]).

ORDERED that the judgment is reversed, without costs, so much of the order entered February 8, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted.

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. Insofar as is relevant to this appeal, by order entered February 8, 2013, the Civil Court granted plaintiff’s motion for summary judgment upon the second cause of action; upon denying plaintiff’s motion for summary judgment upon the first cause of action, made CPLR 3212 (g) findings in plaintiff’s favor with respect to that cause of action; denied the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action; and held that the only remaining issue for trial upon the first cause of action was whether defendant had timely and properly mailed the denial of claim form with respect to the claim underlying that cause of action.

Plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period (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 that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide [*2]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, 11th & 13th Jud Dists 2011]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment upon the second cause of action should have been denied.

In support of the branch of its cross motion seeking summary judgment dismissing the first cause of action, defendant submitted an affidavit by its special investigator which set forth the standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Defendant also submitted a copy of the certified mail, return receipt card bearing the subject claim number, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the subject denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff failed to submit an affidavit in opposition to defendant’s cross motion, defendant’s proof that the denial of claim form had been timely and properly mailed to plaintiff was unrebutted. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment dismissing the first cause of action, insofar as the order denied that branch of defendant’s cross motion, it is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, we do not reach the issue of whether the Civil Court properly made CPLR 3212 (g) findings in favor plaintiff on this cause of action.

Accordingly, the judgment is reversed, so much of the order entered February 8, 2013 as granted the branch of plaintiff’s motion seeking summary judgment on the second cause of action is vacated, and that branch of plaintiff’s motion is denied. In addition, the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing the first cause of action is granted.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2013. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion for summary judgment dismissing 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was defendant’s proof of mailing of the denial of claim form.

On appeal, 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, 11th & 13th Jud Dists 2014]).

In support of its cross motion, defendant submitted an affidavit by its special investigator which set forth defendant’s standard mailing practices and procedures by which he had mailed the denial of claim form at issue to plaintiff. Although the affiant stated that, annexed as an exhibit, was a copy of the certified mail, return receipt card bearing the claim number in question, which reflected that plaintiff had signed for the envelope which, in accordance with the affiant’s standard office practice and procedure, contained the denial of claim form in question, the documents attached to defendant’s motion pertained to a different assignor. As a result, defendant failed to establish that it had properly mailed its denial of claim form to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and its cross motion was properly denied.

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

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

Decided on October 30, 2015

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

Decided on October 30, 2015

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

Decided on October 30, 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 (Larry Love, J.), entered April 18, 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 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the IMEs. The doctor failed to demonstrate by 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, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to 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 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. [*2]Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 14, 2013. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking summary judgment on its third cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing the third cause 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 third cause of action 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. By order entered March 14, 2013, insofar as appealed from as limited by the brief, the Civil Court denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action.

Plaintiff correctly argues that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted affidavits and an affirmation from the medical professionals who were to perform the IMEs which stated in a conclusory manner that plaintiff’s assignor had failed to appear at the duly scheduled IMEs. These affidavits and affirmation were insufficient to establish defendant’s entitlement to summary judgment (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action should have been denied.

Plaintiff’s contention that it was entitled to summary judgment upon its third cause of action lacks merit. Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (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 [*2]claim 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, 11th & 13th Jud Dists 2011]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment upon its third cause of action was properly denied.

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

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

Decided on October 26, 2015

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 19, 2015

APPEARANCES OF COUNSEL

The Law Office of Robyn M. Brilliant, P.C., New York City (Robyn M. Brilliant of counsel), for appellant.

Ordered that the order is modified by providing that the branch of defendant’s motion seeking attorney’s fees is granted; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney’s fees incurred by defendant up to the date of discontinuance.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s oral application for a discontinuance without prejudice was granted by the Civil Court on February 6, 2013. Thereafter, defendant moved to vacate the February 6, 2013 order, or, in the alternative, to modify the prior order by providing that the discontinuance was with prejudice, and for attorney’s fees and sanctions. By order dated January 7, 2014, the Civil Court denied the branch of defendant’s motion seeking to vacate or modify the February 6, 2013 order and implicitly denied the branches of defendant’s motion seeking attorney’s fees and sanctions.

Generally, courts are reluctant to compel a party to litigate (see DuBray v Warner Bros. Records, 236 AD2d 312, 314 [1997]), and it is well settled that courts have the discretion to grant a motion for discontinuance, without prejudice, if no{**50 Misc 3d at 53} special circumstances exist, such as prejudice to a substantial right of the defendant or other improper consequences (see Tucker v Tucker, 55 NY2d 378, 383 [1982]; GMAC Mtge., LLC v Bisceglie, 109 AD3d 874, 876 [2013]; Wells Fargo Bank, N.A. v Fisch, 103 AD3d 622, 622 [2013]; Mathias v Daily News, 301 AD2d 503, 504 [2003]; Valladares v Valladares, 80 AD2d 244, 257-258 [1981], mod on other grounds sub nom. Tucker v Tucker, 55 NY2d 378 [1982]). “Unlike a motion for change of venue which involves the affirmative selection of another forum, a court in granting discontinuance merely makes it possible for the action to be brought elsewhere” (Urbonowicz v Yarinsky, 290 AD2d 922, 923 [2002] [citations omitted]). However, motions for discontinuance should not be used to enable plaintiffs to “do indirectly what they are not permitted to do directly” (Katz v Austin, 271 App Div 217, 218 [1946]; see also DuBray v Warner Bros. Records, 236 AD2d at 314).

[1] In support of the branch of its motion seeking to vacate or modify the February 6, 2013 order, defendant did not provide any information regarding the arguments that had been made before the Civil Court in support of, and in opposition to, plaintiff’s oral application. Despite the fact that plaintiff subsequently commenced an action against defendant in the Civil Court, Bronx County, to recover the same no-fault benefits as sought herein, defendant’s argument—that plaintiff sought the discontinuance because it did not have a witness to provide testimony establishing its billing and wanted to commence an action in the Civil Court, Bronx County, where a witness allegedly is not required to establish billing—is not supported by the record, which indicates that a trial had yet to commence in the case at bar. The record does not establish that plaintiff expressed its intention to discontinue the Queens County action in order to commence an action in Bronx County (cf. DuBray v Warner Bros. Records, 236 AD2d at 314). Consequently, defendant did not establish that plaintiff indirectly sought to do what it was not permitted to do directly, i.e., change venue, when it moved for discontinuance.

[2] Notwithstanding the foregoing, inasmuch as it is uncontroverted that defendant had defended the instant action for three years during which time it had made numerous motions, engaged in discovery practice, and repeatedly appeared in court, defendant is entitled to recover the reasonable attorney’s fees it incurred in its defense of the instant action up to the date of discontinuance, in order to eliminate any possible{**50 Misc 3d at 54} prejudice attributable to the discontinuance (see Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146, 146-147 [2005]). We pass on no other issue.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking attorney’s fees is granted; as so modified, the order is affirmed, and the matter is remitted to the Civil Court for a determination of the reasonable amount of attorney’s fees incurred by defendant up to the date of discontinuance.

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