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 (Richard G. Latin, J.), entered June 13, 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, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

In support of its cross motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, 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 [*2]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.
Decision Date: November 26, 2013

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 August 10, 2011. 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 the services at issue were not medically necessary. 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 (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s 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.
Decision Date: November 26, 2013

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 August 18, 2011. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009 and a claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted the branches of plaintiff’s cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009, which claim defendant alleged it had never received, and a claim for $42.02, which was the balance found to be due after defendant had allegedly paid plaintiff for services rendered from December 31, 2008 to January 28, 2009 pursuant to the worker’s compensation fee schedule. The court otherwise denied plaintiff’s cross motion for summary judgment.

On appeal, defendant argues that its motion for summary judgment dismissing the complaint should have been granted because it demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to
appear for duly scheduled examinations under oath (EUOs). Defendant had raised this defense in the Civil Court with regard to a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for services rendered on January 28, 2009, a claim for $249.96 for services rendered on January 19, 2009 and a claim for $272.92 for services rendered on February 17, 2009. Defendant did not raise this defense in the Civil Court with respect to the claim for $319.97 for services rendered on February 17, 2009 and the claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009, nor did it establish that it had timely denied the latter claims on that ground. Since defendant did not, in its appellate brief, proffer any argument as to why the Civil Court’s award of summary judgment to plaintiff on these claims was in error, we do not disturb the part of the order appealed from that granted summary judgment to plaintiff with respect to so much of the complaint as sought to recover upon these two claims.

Defendant demonstrated that the first four claims listed above had been denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also 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]) on the ground that plaintiff had failed to appear for duly scheduled EUOs. The affidavits submitted by defendant established that its EUO scheduling letters had been mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that the EUOs had been properly scheduled (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant also established that plaintiff had failed to appear at the duly scheduled EUOs, through both an affidavit by the investigator who had been assigned to conduct the EUOs, and statements made on the record by the same investigator (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint [*3]as sought to recover upon a claim for $249.96 for services rendered on January 19, 2009, a claim for $3,119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 February 15, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion.

In support of its cross motion, defendant submitted an affidavit by a supervisor of Media Referral, Inc., a company retained by defendant to schedule independent medical examinations (IMEs), which sufficiently established that the IME requests 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]). Defendant also submitted, among other things, an affidavit by the doctor who was to perform the physiatrist/PMR IMEs, as well as an affidavit by the chiropractor who was to perform the chiropractic IMEs, which were sufficient to establish that plaintiff’s assignor had [*2]failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant established its entitlement to summary judgment dismissing the complaint (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1).

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.
Decision Date: November 26, 2013

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 (Carmen R. Velasquez, J.), entered March 1, 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 moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely denied because the medical supplies at issue were not medically necessary. Defendant appeals from an order of the Civil Court which denied its motion.

The papers submitted by defendant in support of its motion were sufficient to establish that defendant 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]) the denial of claim forms at issue, which denied the claims on the ground of lack of medical necessity. Moreover, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supplies at issue. In [*2]opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone 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]). Therefore, defendant’s motion for summary judgment dismissing the complaint should have been granted (see 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Richard G. Latin, J.), entered March 25, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions, finding that plaintiff had established its prima facie entitlement to summary judgment, that defendant had timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and that defendant had timely and properly requested IMEs. Thus, the only issue for trial was “the no-show of the assignor at the IMEs.”

In support of its cross motion, defendant submitted an affidavit by the healthcare professional retained to perform the IMEs which established that plaintiff’s assignor had failed to appear at IMEs on June 12, 2009 and June 25, 2009. As an appearance at an IME is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 [*2]NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013

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 (Cheree A. Buggs, J.), entered December 8, 2010. 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, the Civil Court denied defendant’s motion for summary judgment, finding that plaintiff had raised a triable issue of fact and stating that the only issue for trial was the medical necessity of the supplies at issue (see CPLR 3212 [g]).

In support of its motion, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the reviewer’s determination that there was no medical necessity for the medical supplies at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone 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 [*2]plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see 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.
Decision Date: November 26, 2013

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 (Margaret A. Pui Yee Chan, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of the order as denied the branches of defendant’s motion seeking to dismiss so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.

Defendant established that it 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]) on the ground that each assignor had failed to appear for examinations under oath (EUOs). It [*2]further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is reversed and the branches
of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.

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

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath. Consequently, in my opinion, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes were properly denied.

Accordingly, I would affirm the order, insofar as appealed from.
Decision Date: November 21, 2013

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 November 26, 2010. The order denied defendant’s motion to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied as to so much of the complaint as seeks to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14, and by further providing that defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial solely with respect to the issue of plaintiff’s billing practices; 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 to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy, plaintiff’s owner and the treating provider, respectively, for examinations before trial (EBTs) regarding plaintiff’s “treatment” and “billing practices,” and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied [*2]plaintiff’s claims on the ground that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

With respect to plaintiff’s claims for the sums of $114, $300.32, and $931.68, it is undisputed that these claims were not paid or denied within 30 days of their receipt. Nor does defendant assert that the EUOs of Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy were requested, or pending, during that time. We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Consequently, defendant failed to demonstrate that these three claims had been timely denied and therefore did not establish that its defenses as to these three claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to so much of the complaint as sought to recover upon these claims.

In opposition to the remaining branches of plaintiff’s motion, defendant established that the EUO scheduling letters 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]; ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for the EUOs (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]) and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14 are denied.

With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.” However, as defendant’s denial of claim form did not raise any defense based on “treatment,” defendant is precluded from raising any such defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs solely with respect to the issue of plaintiff’s billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]; Arco Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 21, 2013

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Peter J. DiConza, Jr., Manhasset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to vacate the award of a master arbitrator dated June 6, 2012, which vacated an award of an arbitrator dated March 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered October 1, 2012, which, inter alia, denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

“A master arbitrator is empowered to apply the law to a given set of facts even if his or her conclusion differs from that of the arbitrator” (Matter of Empire Ins. Co. v Lam, 273 AD2d 469, 470 [2000]). Contrary to the petitioner’s contention, the Supreme Court properly determined that the master arbitrator did not exceed his powers. The master arbitrator properly vacated the arbitration award which, in light of the evidence, was “incorrect as a matter of law” (former 11 NYCRR 65.19 [a] [4]; see Insurance Law § 5106; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of State Farm Ins. Co. v Spilotros, 257 AD2d 577 [1999]).

The petitioner’s remaining contentions are without merit. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.