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 (Katherine A. Levine, J.), entered November 21, 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on October 17, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” “EMS Supply,” and a back massager, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on September 19, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for a “heating pad”; as so modified, 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 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 medical necessity.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit 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).

In support of its cross motion, defendant submitted sworn peer review reports which set forth a factual basis and medical rationale for the peer reviewers’ determinations that there was a lack of medical necessity for the supplies at issue. In opposition to defendant’s motion, plaintiff submitted an affirmation by a doctor which was sufficient to raise a triable issue of fact as to whether the supplies, other than the “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager furnished on October 17, 2008, and a “heating pad” furnished on September 19, 2008, were medically necessary.

As to the “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager furnished on October 17, 2008, and the “heating pad” furnished on September 19, 2008, defendant’s peer reviewers concluded that these supplies were superfluous because plaintiff’s assignor had been receiving physical therapy as well as treatment by a chiropractor and an acupuncturist. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone sufficiently rebut, these determinations (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]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager furnished on October 17, 2008 is granted and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for the “heating pad” furnished on September 19, 2008 is granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013] 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on October 17, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for an “E.M.S.,” “EMS Accessories,” “EMS Supply” and a back massager, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on September 19, 2008 is granted to the extent of dismissing so much of the complaint as sought to recover for a “heating pad.”

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 (Dawn Jimenez Salta, J.), entered November 9, 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much

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 medical necessity.

On appeal, defendant fails to articulate a sufficient basis to strike the Civil Court’s implicit 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 furnished on December 12, 2008. Consequently, the branch of defendant’s cross motion seeking to dismiss so much of the complaint as sought to recover for these supplies was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on January 9, 2009, defendant submitted a peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for these supplies, on the ground, among others, that the assignor had already been involved in a physical therapy treatment plan which rendered the supplies unnecessary. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone sufficiently rebut, this determination (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]). Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on January 9, 2009 should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013] 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 modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for supplies furnished on January 9, 2009 is granted.

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 (Robin Kelly Sheares, J.), entered October 13, 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 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.

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 there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

—[*1] Bruno Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for appellant.

Moshe D. Fuld, P.C., Brooklyn, N.Y. (David Karp of counsel), for respondents.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated September 28, 2012, as, upon renewal of that branch of its prior motion which was for summary judgment, in effect, declaring that it is not obligated to pay the subject no-fault insurance benefits to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C., adjourned the matter and directed that those defendants appear and testify at an examination under oath, at a date, time, and place mutually agreed upon by the parties.

Ordered that the order is reversed insofar as appealed from, on the law, upon renewal, the determination in an order of the same court dated December 8, 2010, denying that branch of the plaintiff’s motion which was for summary judgment, in effect, declaring that it is not obligated to pay the subject no-fault claims to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C., is vacated, that branch of the plaintiff’s motion which was for summary judgment is granted, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay the subject no-fault claims to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C.; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The instant action arises out of an automobile accident that occurred on January 18, 2009, involving a vehicle insured by the plaintiff. The vehicle’s owner and driver, as well as the three passengers allegedly in the vehicle at the time of the accident, assigned their no-fault insurance benefits to certain medical providers, who are the defendants in this action. The plaintiff moved for summary judgment, in effect, declaring that it is not obligated to pay these no-fault benefits to the defendants Stracar Medical Services, P.C., Sweetwater Chiropractic, P.C., and Urban Well Acupuncture, P.C. (hereinafter collectively the assignees). The plaintiff argued that it was entitled to summary judgment because the assignees failed to appear at an examination under oath, as required by the subject insurance policies and, thus, they breached a condition precedent to coverage [*2]under the policies and were not entitled to recover their patients’ no-fault benefits. In an order dated December 8, 2010, the Supreme Court denied that branch of the plaintiff’s motion which was for summary judgment, in effect, declaring that it is not obligated to pay no-fault benefits to the assignees.

The plaintiff moved for leave to renew the subject branch of its motion. In an order dated September 28, 2012, the Supreme Court granted renewal, but thereupon adjourned the matter and directed the assignees to appear and testify at an examination under oath. The Supreme Court determined that the assignees “shall be given a final opportunity to appear for the [examination under oath] sought by plaintiff.” The plaintiff appeals.

Upon renewal, the Supreme Court erred in adjourning the matter and giving the assignees another chance to appear at an examination under oath. “It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds (Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d 878, 878 [1983] see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014] Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488 [1992]). In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors (Interboro Ins. Co. v Clennon, 113 AD3d at 597). Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law (see id.; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]).

In opposition to the plaintiff’s prima facie showing, the assignees failed to submit evidence of a reasonable excuse for their noncompliance with the demands for examinations under oath, or of partial performance on their part (see Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835, 836 [1981] Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d at 878-879). The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath (see Interboro Ins. Co. v Clennon, 113 AD3d at 597). Moreover, “the [assignees’] breach of the policy was not cured by [their] belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer’s motion for summary judgment” (Johnson v Allstate Ins. Co., 197 AD2d 672, 672 [1993] see Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d at 836; Azeem v Colonial Assur. Co., 96 AD2d 123, 125 [1983], affd 62 NY2d 951 [1984]). “[A]n insurance company is entitled to obtain information promptly while the information is still fresh to enable it to decide upon its obligations and protect against false claims. To permit [the defendants] to give the information more than [two] years after the [loss] would have been a material dilution of the insurance company’s rights” (Argento v Aetna Cas. & Sur. Co., 184 AD2d at 488).

In view of the assignees’ unexcused and willful failure to comply with the demands for examinations under oath, and the lack of evidence of partial performance, the Supreme Court, upon renewal, should have unconditionally awarded summary judgment to the plaintiff (see Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d at 837; Matter of New York Cent. Mut. Fire Ins. Co. v Rafailov, 41 AD3d 603, 604-605 [2007] Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d at 878-879; Argento v Aetna Cas. & Sur. Co., 184 AD2d at 488; cf. V.M.V. Mgt. Co., Inc. v Peerless Ins., 15 AD3d 647 [2005] Avarello v State Farm Fire & Cas. Co., 208 AD2d 483 [1994]).

In light of our determination, we need not reach the plaintiff’s remaining contention.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay the subject no-fault benefits to the assignees (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Dillon, J.P., Hall, Austin and Duffy, 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 (Dawn Jimenez Salta, J.), entered October 28, 2011, deemed from a judgment of the same court entered January 10, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 28, 2011 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 $2,597.88.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 28, 2011 is vacated, plaintiff’s motion for summary judgment is denied 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 an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion, 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 affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described the 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).

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 judgment is reversed, the order entered October 28, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 January 13, 2012. The order, insofar as appealed from 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 its cross motion for summary judgment dismissing the complaint. Defendant established that it had 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]) letters and follow-up letters scheduling examinations under oath (EUOs), and the denial of claim form. Defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. Consequently, defendant demonstrated that plaintiff had failed to satisfy a condition precedent to defendant’s liability on the insurance policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the Civil Court improvidently exercised its discretion in excluding from consideration the affidavit of Edward Belfield on the ground that the affidavit, while notarized, was not accompanied by a certificate of conformity required by CPLR 2309 (c), as the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012] see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Bey v Neuman, 100 AD3d 581 [2012] Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted. Weston, J.P., Pesce and Aliotta, JJ., concur. [*2]
Decision Date: April 07, 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 November 22, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s 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 its 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 (IMEs). The court stated that the only issue for trial was “the mailing of the IME scheduling letters.”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME 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]). 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 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.
Decision Date: April 07, 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 November 23, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s 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 its 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 (IMEs). The court stated that the only issue for trial was “whether [defendant] mailed timely and proper IME scheduling letters to [plaintiff].”

In support of its motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed to plaintiff’s assignor 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]). Contrary to the Civil Court’s order, it was not necessary to mail the initial scheduling letters to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [c] § 65-3.6 [b]). 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 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.
Decision Date: April 07, 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 (Reginald A. Boddie, J.), entered October 18, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s 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 an order of the Civil Court which denied defendant’s 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 (IMEs).

Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME 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 affidavits by the healthcare professionals who were to perform the IMEs, which affidavits established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Defendant received the claims at issue after plaintiff’s assignor had failed to appear for IMEs with two different healthcare professionals. Defendant alleged that it had denied one of these claims within 30 days of its receipt and that it had requested verification on the other claim and then denied that claim within 30 days of its receipt of the requested verification. An affidavit executed by defendant’s litigation examiner sufficiently described the standard mailing practices and procedures for the timely mailing of verification requests and denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is noted that, contrary to plaintiff’s argument on appeal, defendant’s follow-up verification request complied with Insurance Department Regulations (11 NYCRR) § 65-3.6 (b).

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 order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 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 2, 2011. 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 seeks to recover the sum of $201.96, representing the portion of a $472.30 claim that was not paid by defendant. Plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim form (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]). Furthermore, defendant demonstrated that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant had denied $200 of the claim at issue due to the deductible (see Insurance Law § 5102 [b] [3]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing so much of the complaint as seeks $200 (see Innovative Chiropractic, P.C. v Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Finally defendant’s submission of its claims representative’s affidavit, along with a copy of the “NYS Medicaid DME Services Fee Schedule,” which has been adopted as the Durable Medical Goods Fee Schedule for Workers’ Compensation (see 12 NYCRR 442.2 [a]), was sufficient to demonstrate that plaintiff was entitled to receive $22.04 for Code E0190, the sum defendant has already paid, and not $24.00, the sum that plaintiff had billed (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: April 07, 2014