Decided on May 22, 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 (Patricia Anne Williams, J.), entered July 5, 2011. The order, insofar as appealed from, 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 from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s moving papers established that defendant had timely denied the claims at issue (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]) based on a lack of medical necessity. In addition, defendant submitted two affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the determinations that there was no medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009] Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007] A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted

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

Decided on May 22, 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 (Lisa S. Ottley, J.), entered October 25, 2011. 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 reversed, with $30 costs, the CPLR 3212 (g) findings in plaintiff’s favor are vacated, 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, 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. 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 medical necessity.

In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was a lack of medical necessity for the supply at issue. In opposition to the cross motion, plaintiff submitted an affidavit from a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). 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, the CPLR 3212 (g) findings in plaintiff’s favor are vacated as academic, and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009] Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007] A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Decided on May 22, 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 (Maureen A. Healy, J.), entered June 20, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking to vacate so much of a prior order of the same court (Cheree A. Buggs, J.) entered May 10, 2011 as granted, on default, the branch of a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment dismissing so much of the complaint as sought to recover $13,571.37 from Alea.

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, the Civil Court, by order dated May 10, 2011, granted, on default, a motion by Alea North America Insurance Company (sued herein as Alea Care of GAB Robins Ins. Co.) (Alea) seeking summary judgment (1) dismissing so much of the complaint as was asserted against GAB Robins and (2) dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. Plaintiff subsequently moved to, among other things, vacate so much of that order as granted the branch of the motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $13,571.37 from Alea. By order dated June 20, 2011, the Civil Court denied plaintiff’s motion.

A claim of law office failure may be accepted as a reasonable excuse for a default where the claim is supported by a “detailed and credible” explanation of the default or defaults at issue (Henry v Kuveke, 9 AD3d 476, 479 [2004]). Conclusory and unsubstantiated claims of law office failure are insufficient (see Lugauer v Forest City Ratner Co., 44 AD3d 829, 830 [2007] Wechsler v First Unum Life Ins. Co., 295 AD2d 340, 341 [2002]). Here, plaintiff’s attorney alleged only that opposition to the motion had been served upon Alea, and that it was “unknown why the attorney who appeared in court on May 10, 2011 did not have the written opposition.” This statement did not “adequately detail and substantiate the alleged law office failure” (see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d, 11th & 13th Jud Dists 2013]).

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

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, May 22, 2014

APPEARANCES OF COUNSEL

Nightingale Law, P.C., Glen Cove (Michael S. Nightingale of counsel), for appellant.

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

Ordered that the order 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, arguing that the action is premature since plaintiff had not responded to its verification requests. The Civil Court denied defendant’s motion, finding that a triable issue of fact existed as to whether the requests had been received by plaintiff.

As a preliminary matter, we note that, contrary to the apparent positions of both parties on appeal, the order appealed from does not limit the issues for trial pursuant to CPLR 3212 (g) (see generally A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 32 Misc 3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Since a claim need not be paid or denied until all demanded verification is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Here, in support of its motion, defendant made a prima facie showing that it had timely mailed three initial and three follow-up requests for verification to plaintiff, with carbon copies mailed to plaintiff’s attorney, in accordance with its standard mailing practices and procedures (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). This gave rise to a rebuttable presumption that the requests had been received by both plaintiff and its attorney{**44 Misc 3d at 61} (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]).

It is undisputed that plaintiff did not respond to the requests. However, in opposition to [*2]defendant’s motion, plaintiff submitted an affidavit executed by its owner in which he described plaintiff’s practices and procedures that result in all mail being recorded in plaintiff’s computer system on the date of receipt, as well as being physically filed in the appropriate “patient” file. Plaintiff’s owner stated that he had reviewed the computer file and the physical file for the “patient” at issue, and that plaintiff has no record of having received verification requests for the claims at issue.

For the purpose of determining whether a no-fault insurer’s time to pay or deny a claim has been tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), a request for written verification that the insurer communicates to the applicant by mail is complete upon its delivery to the United States Postal Service (cf. CPLR 2103 [b] [2]). Thus, contrary to the finding of the Civil Court, the operative question in this case is not whether the requests were received by plaintiff, but whether defendant mailed them. Here, by rebutting the presumption of receipt, plaintiff raised a triable issue of fact as to whether the verification requests had been properly mailed to plaintiff in the first place.

Defendant correctly asserts that plaintiff did not make a prima facie showing that its attorney had not received the carbon copies of the verification requests that allegedly had been sent to counsel’s office. However, contrary to defendant’s argument, receipt of such letters did not give rise to a duty on the part of plaintiff’s counsel to forward these requests to plaintiff since, on their face, they purport to duplicate letters simultaneously sent to plaintiff (but cf. New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588, 590-591 [2002]; Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

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

Decided on May 7, 2014

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

Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), dated May 23, 2013. The order, insofar as appealed from and as limited by the brief, granted the branch of plaintiff’s motion seeking summary judgment to the extent of granting plaintiff summary judgment on the issue of liability.

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

Plaintiff commenced this subrogation action to recover the sum of $3,042.26, the amount it had paid its insured for damage to her vehicle after the bicycle which defendant had been operating allegedly struck and damaged her vehicle, which was legally parked on the street in front of her residence. Plaintiff alleged in its complaint that the occurrence had been caused by defendant’s negligence, without any negligence on the part of the subrogor. Defendant, in his verified answer, generally denied the allegations of the complaint, but admitted that, on the date in question, he had been operating his bicycle on the street where the subrogor’s residence was located. In addition, he interposed a counterclaim seeking no-fault benefits due as a result of the accident, alleging that “[o]n or about June 8, 2011, Plaintiff [sic], then on a bicycle, collided with the vehicle owned by Plaintiff’s assignor [sic]”; that the cause of the accident was how the vehicle was parked; and that, as a result of the accident, he had suffered, among other things, physical injury. He also stated that he had submitted to plaintiff medical bills for his treatment, and that plaintiff had denied payment. Plaintiff, as an affirmative defense to the counterclaim, stated that no-fault benefits were properly denied because the accident had not arisen out of the subrogor’s “use or operation of a motor vehicle.”

Thereafter, plaintiff moved for, among other things, an order granting it summary judgment, setting the matter down for an inquest as against defendant, and dismissing defendant’s counterclaim. Defendant cross-moved for summary judgment dismissing the complaint. The District Court, in an order dated May 23, 2013, found that the evidence submitted by plaintiff established a prima facie case with respect to defendant’s liability, and that defendant had failed to demonstrate that there was a genuine factual issue as to liability. Consequently, summary judgment was granted to plaintiff on the issue of liability. Since defendant had raised an issue of fact as to the amount of damages sustained by the subrogor’s vehicle as a result of the collision, the court ordered a trial of damages, in accordance with CPLR 3212 (c). Judgment was granted to plaintiff dismissing defendant’s counterclaim, as it was undisputed that the subrogor’s vehicle had been parked at the time of the collision and, therefore, defendant’s injuries did not result from the “use and operation of a motor [*2]vehicle” (Insurance Law § 5102 [b]). Defendant appeals, as limited by the brief, from so much of the order as granted the branch of plaintiff’s motion seeking summary judgment on the issue of liability. We affirm.

Plaintiff established its prima facie entitlement to summary judgment on the issue of liability by submitting evidence demonstrating that defendant’s bicycle struck its subrogor’s legally parked vehicle. Such evidence included: defendant’s verified answer with counterclaim, in which he stated that on the date in question, he “then on a bicycle, collided with the vehicle owned by Plaintiff’s assignor [sic]”; defendant’s application for no-fault benefits (an NF-2 form), signed by defendant, in which he stated, in the space left for a description of the accident that, at the time and place of the accident, “bicycle hit parked car”; and the affidavit of its subrogor stating that she had parked her vehicle directly in front of the entrance to her residence the afternoon before the incident, that she had locked the vehicle, that no one had used the vehicle, and that the following morning, she had seen that it had been damaged. In opposition, defendant failed to submit competent evidence to rebut the inference of negligence by offering a non-negligent explanation for the contact with a stationary motor vehicle. Defendant’s argument that there was no admissible proof of a collision between him and the subrogor’s vehicle is refuted by the submissions referred to above.

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

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

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 (Carolyn E. Wade, J.), entered March 13, 2012. The order, insofar as appealed from and as limited by the brief, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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, 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, limiting the issues for trial to medical necessity.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Defendant’s denials admitted the receipt of the bills at issue (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007] Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), and plaintiff was not required to establish a CPLR 4518 foundation for the bills (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]). Defendant also argues, in effect, that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or 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, 11th & 13th Jud Dists 2011]). However, this is an incorrect reading of the order (see Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52010[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Had the court found, for example, that plaintiff had established that it was incontrovertible, for all purposes in the action, that defendant’s denials were without merit as a matter of law, the court would have granted summary judgment to plaintiff. Instead, the order directed that a trial be held. Consequently, regardless of the wording of the order, it is clear that it was not the court’s intent to find that plaintiff had established, for all purposes in the action, that defendant had issued denials that were untimely or were conclusory, vague, or without merit as a matter of law.

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

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

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

[*1]

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order granted defendant’s cross motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s motion for summary judgment.

ORDERED that 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 District 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 proffered an affidavit by its no-fault litigation supervisor which was sufficient to establish that defendant’s denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had submitted its claim to defendant more than 45 days after the date the services had been rendered to plaintiff’s assignor (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Defendant’s denial of claim form adequately advised plaintiff of the basis for the denial, and it further informed plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Plaintiff failed to proffer a reason for the late submission. Consequently, the District Court properly determined that defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

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

[*1]

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 26, 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 it had timely and properly denied the claim at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

For the reasons stated in EMC Health Prods., Inc. as Assignee of Brian Byers v Geico Ins. Co. (___ Misc 3d ___, 2014 NY Slip Op _____ [Appeal No. 2012-1208 K C], decided herewith), we find that defendant failed to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor. Moreover, 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 affirmed.

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

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

[*1]

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 20, 2011. 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 it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross motion.

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. as Assignee of Brian Byers v Geico Ins. Co., ___ Misc 3d ___, 2014 NY Slip Op _____ [Appeal No. 2012-1208 K C], decided herewith). Moreover, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the supplies at issue. As a result, defendant is not entitled to summary judgment dismissing the complaint.

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

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

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 October 31, 2011. 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 it had timely and properly denied the claims at issue based on a lack of medical necessity. 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 the verification requested by defendant was outstanding.

For the reasons stated in EMC Health Prods., Inc. as Assignee of Brian Byers v Geico Ins. Co. (___ Misc 3d ___, 2014 NY Slip Op _____ [Appeal No. 2012-1208 K C], decided herewith), we find that defendant failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor. Moreover, upon a review of the record, we find that the Civil Court correctly found that there is a triable issue of fact as to whether the verification requested by defendant was outstanding (see Westchester Med. Ctr. v A Cent. Ins. Co., 114 AD3d 937 [2014] Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]).

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

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