[*1]

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered October 2, 2013, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint, in which the plaintiff sought to recover no-fault medical payments from the defendant, by tendering proof that the claim was neither paid nor denied within 30 days of the defendant’s receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on the alleged intoxication of the plaintiff’s assignor at the time of the accident by the issuance of a denial within 30 days of the receipt of additional verification it requested concerning the claim (see Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 660 [2008]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017). Although, as the defendant acknowledges, some of the evidence it submitted was not in admissible form, it proffered an “acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897, 899 [2011]; cf. Oddo v Edo Mar. Air, 34 AD3d 774, 775 [2006]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Mastro, J.P., Chambers, Lott and Roman, JJ., concur.

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 3, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are 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 based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied defendant’s motion on the ground that defendant had not offered a reason why it had requested an EUO. This appeal by defendant ensued.

With respect to the fourth cause of action, seeking to recover upon a claim for $879.73, and the fifth cause of action, seeking attorney’s fees with respect thereto, defendant established that the time to pay or deny this claim had been tolled by the timely issuance of EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claim had been timely denied (see id.) on that ground. Contrary to the determination of the District Court, no “provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs” (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]). Moreover, the Insurance Department’s interpretation of the Regulations “is entitled to deference unless irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]). An assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). The opposing affirmation submitted by plaintiff’s counsel did not raise a triable issue of fact with respect to these causes of action. As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests, plaintiff’s remaining objections regarding the EUO requests will not now be heard (see 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 2011]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing the fourth and fifth causes of action should have been granted.

With respect to the second cause of action, seeking to recover upon a claim for $878.66, and the third cause of action, seeking attorney’s fees with respect thereto, defendant’s claim representative stated that defendant had received plaintiff’s claim for the sum of $878.66 on July 8, 2010 and that it had denied the claim on October 4, 2010. She also stated that defendant had [*2]sent delay letters, dated July 30, 2010 and September 9, 2010 to plaintiff after the receipt of the claim. The letters informed plaintiff that payment of the claim would be delayed pending an EUO of the injured party. However, an insurer’s delay letters, which request no verification, are insufficient to 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]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to demonstrate that the claim underlying these causes of action had been timely denied. Thus, the branches of defendant’s motion seeking dismissal of the second and third causes of action were properly denied.

As the first cause of action does not allege a separate cause of action, it should also have been dismissed.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted.

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

Decided on July 7, 2014

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

Decided on July 1, 2014

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 (Genine D. Edwards, J.), entered July 17, 2012. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant answered the complaint and served demands for discovery on March 8, 2010, including a notice to take the deposition of plaintiff’s owner and its treating doctor. On November 17, 2010, plaintiff served a notice of trial and certificate of readiness. Thereafter, defendant moved, pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.17 (c) and CPLR 3126, to vacate plaintiff’s notice of trial and certificate of readiness, to strike the case from the trial calendar and, pursuant to CPLR 3124, to compel discovery. Defendant argued that it sought the testimony of plaintiff’s owner and documentary discovery in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits because it had failed to comply with applicable state or local licensing laws. In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, is ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Plaintiff opposed the motion, asserting, among other things, that defendant had failed to demonstrate its entitlement to discovery. By order entered July 6, 2011, the Civil Court conditionally granted defendant’s motion and ordered plaintiff to produce its “purported” owner and its “purported” employee for an examination before trial within 60 days of the order.

Defendant subsequently moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the July 6, 2011 order of the Civil Court since plaintiff had failed to produce its owner and its employee for duly scheduled examinations before trial. Plaintiff opposed the motion and submitted written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court entered July 17, 2012 which granted defendant’s motion and dismissed the complaint with prejudice.

” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012], quoting Giano v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its refusal to adequately comply with [*2]discovery requests, even after being directed to do so by court order, as well as the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).

Plaintiff’s remaining contention is not properly before this court as it is raised for the first time on appeal.

Accordingly, the order is affirmed.

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

Decided on July 1, 2014

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 (Anna Culley, J.), entered March 5, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for services that it had allegedly provided to its assignor from October 19, 2000 through April 10, 2001. Upon receiving, on September 26, 2008, a document from plaintiff entitled amended complaint, bearing the caption “Dyckman Medical Diag. Treatment, P.C. A/A/O Juana Hernandez against Granite State Insurance Company” and index number 062375/03, defendant served its answer along with discovery demands. Thereafter, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the six-year statute of limitations had expired prior to the commencement of the action. By order entered March 5, 2011, the Civil Court, among other things, denied this branch of defendant’s motion, determining that the action had been timely commenced. Defendant appeals from this portion of the order.

A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). Here, in support of the branch of its motion seeking summary judgment, defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. However, in opposition to the motion, plaintiff proffered a copy of an affidavit of service of the summons and complaint in this action, which indicated that defendant had been served with the summons and complaint on March 25, 2003 at a New York City office. At that time, an action in the Civil Court was commenced by service of the summons (CCA former 400), and service was deemed complete immediately upon personal delivery to the defendant within the City of New York (CCA former 410). The record contains a copy of the summons and complaint, bearing index number 62375, as well as a copy of the affidavit of service, which were both filed with the Civil Court on April 7, 2003. As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service (see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d [*2]983 [2010]). As a result, defendant did not meet its burden of establishing that the six-year statute of limitations applicable here (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the commencement of the action.

Defendant’s claim that this action had, in fact, been previously dismissed is not substantiated by the record on appeal. It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d 709 [1988]; Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

Decided on June 13, 2014

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 (Pamela L. Fisher, J.), entered November 1, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law; 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]).

While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).

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

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

Decided on May 29, 2014

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 (Carol Ruth Feinman, J.), entered February 23, 2012, deemed from a judgment of the same court entered March 30, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $5,365.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits,

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (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]). Defendant also submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. [*2]v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) for the first through thirteenth causes of action.

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of plaintiff’s motion seeking summary judgment on those 13 causes of action should have been denied, and the branches of defendant’s cross motion for summary judgment seeking to dismiss those causes of action should have been granted.

However, defendant did not deny the claim upon which plaintiff’s 14th cause of action was based until October 21, 2010, which was more than two months after plaintiff’s assignor had failed to appear for his second scheduled IME and more than three months after defendant’s receipt of the claim. While defendant alleges that it tolled its 30-day period to pay or deny the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) by timely requesting written verification (see id. at § 65-3.5 [b]), the letters sent by defendant to plaintiff were insufficient to constitute verification requests (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; 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]). Thus, defendant failed to demonstrate that this claim had been timely denied. In view of the foregoing, we do not disturb so much of the order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment on the 14th cause of action and denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action. Accordingly, the judgment is reversed, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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

Decided on May 29, 2014

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 February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations. The court stated that the only issue for trial was “the proper mailing of the denials.”

In support of its motion, defendant submitted an affidavit by its no-fault litigation examiner which established that the denial of claim forms had been timely mailed in accordance with defendant’s standard mailing practices and procedures (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]). 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, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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

Decided on May 29, 2014

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 February 28, 2012. The order, insofar as appealed from and as limited by the brief, 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, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. The court stated that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).

A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claims after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim forms were untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

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

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

Decided on May 29, 2014

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 (Pamela L. Fisher, J.), entered January 31, 2012. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

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 it had timely and properly denied the claim at issue based on a lack of medical necessity. 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.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

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