Decided on June 11, 2015

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

Decided on May 19, 2015

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

Decided on May 19, 2015

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

Decided on May 19, 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 (Jodi Orlow, J.), entered September 5, 2012, deemed from a judgment of the same court entered November 1, 2012 (see CPLR 5512 [a]). The judgment, entered pursuant to the September 5, 2012 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $930.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order entered September 5, 2012, the Civil Court granted plaintiff’s motion. A judgment awarding plaintiff the principal sum of $930 was entered on November 1, 2012. Defendant’s subsequently filed notice of appeal from the September 5, 2012 order is deemed to be a notice of appeal from the judgment entered November 1, 2012 (see CPLR 5512 [a]).

Defendant correctly argues on appeal that plaintiff did not make a prima facie showing of entitlement to summary judgment, as plaintiff failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Contrary to defendant’s further argument on appeal, reverse summary judgment is not appropriate in this case (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51852[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, the judgment is reversed, the order entered September 5, 2012 granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion 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 (Richard G. Latin, J.), entered September 14, 2012. 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 on the ground that the action was premature, as plaintiff had failed to respond to requested verification. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, 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 whether plaintiff had responded to defendant’s verification requests.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit 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]). Moreover, upon a review of the record, we agree with the Civil Court that there is a triable issue of fact as to whether plaintiff responded to defendant’s verification requests (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

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

Decided on May 19, 2015

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

Decided on May 18, 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 (Barry A. Schwartz, J.), entered February 28, 2013. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made 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 on the ground that plaintiff’s assignor had failed to appear for properly scheduled independent medical examinations (IMEs). The Civil Court, upon denying the motion and cross motion, made CPLR 3212 (g) findings in both parties’ favor and found that there was a triable issue of fact “with respect to whether the assignor was properly notified of the IMEs because the scheduling letters were addressed to one John Canela, but the assignor’s name as it appears on the NF-2 is Jhonffi Canela.”

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]).

As it cannot be said, as a matter of law, that the IME scheduling letters addressed to John Canela provided sufficient notice that plaintiff’s assignor, Jhonffi Canela (misspelled “Johnfi” by plaintiff in the summons and complaint), was to appear for the IMEs, the Civil Court properly denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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

Decision Date: May 18, 2015

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 4, 2012. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the 1st through 3rd and 5th through 10th causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the 4th, 5th and 10th causes of action are granted, and the branches of defendant’s cross motion seeking summary judgment dismissing the 5th and 10th 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 court denied plaintiff’s motion for summary judgment and, insofar as is relevant to this appeal, granted the branches of defendant’s motion seeking summary judgment dismissing the first through third and fifth through tenth causes of action. With respect to the claim underlying the fourth cause of action, which defendant alleged it had never received, the court found that issues of fact exist.

With respect to the claims underlying the first through third and sixth through ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the denial of claim forms had been timely mailed (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 & 11th Jud Dists 2007]). However, with respect to the claims underlying the 5th and 10th causes of action, plaintiff correctly argues that defendant’s denial of claim forms were not timely mailed. Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action should have been denied.

Plaintiff is entitled to summary judgment on the 4th, 5th and 10th causes of action. Plaintiff’s moving papers established, prima facie, the submission to defendant of the claim forms underlying those causes of action (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that defendant had not paid the claims. With respect to the claim underlying the fourth cause of action, defendant’s conclusory allegation that it had not received the bill failed to rebut the presumption of receipt (cf. Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]). Since defendant admitted that it did not timely deny the claim underlying the 4th cause of action, and the record demonstrates that the claims underlying the 5th and 10th causes of action were not timely denied, the branches of plaintiff’s motion seeking summary judgment on those causes of action should have been granted (see Viviane Etienne Med. Care, P.C. v [*2]Country-Wide Ins. Co., 114 AD3d 33 [2013]; 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]).

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment on the 4th, 5th and 10th causes of action are granted and the branches of defendant’s cross motion seeking summary judgment dismissing the 5th and 10th causes of action are denied.

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