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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 22, 2010. The judgment, after a nonjury trial, implicitly awarded plaintiff the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action, for a total award to plaintiff of the principal sum of $1,785.79.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

In this action by a provider to recover assigned first-party no-fault benefits, the complaint sought to recover the principal sum of $686.44 upon a first cause of action and the principal sum of $1,409.24 upon the second cause of action. Pursuant to a pretrial order, the trial in this action was limited to the issue of the medical necessity of the billed-for supplies. At the nonjury trial, defendant’s expert witness was allowed to testify as to plaintiff’s first cause of action, but was [*2]precluded from testifying as to plaintiff’s second cause of action, on the ground that the witness was not the doctor who had prepared the peer review upon which defendant’s denial of the claim underlying the second cause of action had been based. After trial, plaintiff was awarded the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action. Defendant appeals.

We reject defendant’s challenge to the Civil Court’s finding as to plaintiff’s first cause of action. “A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U], *1 [App Term, 2d & 11th Jud Dists 2008], quoting Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Although plaintiff did not put on any rebuttal witnesses, plaintiff did cross-examine defendant’s witness, and the Civil Court “was free to assess and reject [the witness’s] uncontradicted expert opinion” (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U], *2 [App Term, 2d & 11th Jud Dists 2006]).

As to plaintiff’s second cause of action, we find that the Civil Court erred in precluding the testimony of defendant’s expert medical witness. While that witness had not prepared the peer review report upon which defendant’s denial of this claim was based, he nevertheless should have been permitted to testify as to his opinion of the lack of medical necessity for the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the peer review report (Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Psychology YM, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). As defendant’s witness should not have been precluded from testifying as to the second cause of action, a new trial is required on this cause of action.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012

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 (Robin S. Garson, J.), entered July 2, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claim 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]). Thus, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012

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 (Peter Paul Sweeney, J.), entered January 14, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s proffered defense to this action is that it timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). However, defendant failed to establish that the letters scheduling the IMEs had been mailed to plaintiff’s assignor (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 [*2]& 11th Jud Dists 2007]). Thus, defendant did not demonstrate that plaintiff’s assignor had failed to comply with a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should not have been granted.

Plaintiff’s motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied. In view of the foregoing, we need not reach plaintiff’s remaining contentions.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012

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 16, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied the branch of defendant’s motion seeking to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the record establishes that Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of plaintiff, died prior to the commencement of the action (see also Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). As the record does not demonstrate that the commencement of this action was authorized by someone with the authority to do so (see Business Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; Ocean Diagnostic Imaging, P.C., 15 Misc 3d 9; 38 NY Jur 2d, Decedents’ Estates §§ 53, 1510, 1513, 1521, 1532), the order of the Civil Court is reversed and the branch of defendant’s motion seeking to dismiss the complaint is granted (Deutsch v LoPresti, 272 AD2d 506 [2000]; McCormack v County of Westchester, 255 [*2]AD2d 296 [1998]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012

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 (William A. Viscovich, J.), entered September 8, 2010. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied its motion for summary judgment. The court further found that the issues remaining for trial were “whether defendant properly denied and reduced plaintiff’s claims in accordance to [sic] the fee schedule and whether defendant’s denial, without having sought any additional verification regarding the amount of time spent with the patient, was proper according to the regulations.”

The record reflects that plaintiff submitted a claim for six tests utilizing CPT code 97799 and that defendant, upon receiving the claim, unilaterally determined that the appropriate CPT code was 97750. Since CPT code 97750 is a “time based procedure code,” and since defendant [*2]did not have sufficient documentation demonstrating how long it took plaintiff to perform the billed-for services, defendant concluded that it would only pay for one unit of time, i.e., 15 minutes.

We do not pass upon whether defendant may unilaterally determine that plaintiff’s services should be compensated utilizing CPT code 97750 instead of code 97799, since even if defendant were permitted to unilaterally apply a code different from the one applied by plaintiff, defendant’s opposition to plaintiff’s motion was nevertheless insufficient to establish a triable issue of fact. Defendant’s basis for paying only part of the claim, utilizing CPT code 97750, was that in the absence of being notified by plaintiff of the amount of time it had actually taken for the services to be rendered, defendant arbitrarily opted to pay for the minimum amount of time designated therefor, i.e., only one unit of time. Since this determination by defendant is without any factual basis, as defendant never requested verification from plaintiff seeking information regarding the amount of time it had taken plaintiff to perform the services billed for, such a reduction has not been shown to be warranted (see A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In light of the foregoing, defendant did not raise a triable issue of fact in opposition to plaintiff’s motion.

As defendant has not challenged the Civil Court’s finding, in effect, that plaintiff is otherwise entitled to judgment, plaintiff’s motion for summary judgment upon the unpaid portion of its claim is granted. Accordingly, the order, insofar as appealed from, is reversed, plaintiff’s motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 25, 2012

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 March 11, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims division employee established that defendant’s denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its cross motion papers affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the billed-for services. Defendant’s showing of lack of medical necessity was unrebutted by plaintiff. Plaintiff’s remaining contentions were either not raised in the Civil Court or lack merit. Consequently, defendant is entitled to summary judgment (see Delta [*2]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 is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 25, 2012

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 (Terrence C. O’Connor, J.), entered October 18, 2010. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action 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 found, among other things, that plaintiff and defendant had established their prima facie cases with respect to the second through fifth causes of action and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied the branch of its cross motion [*2]seeking summary judgment dismissing the second through fifth causes of action.

In support of its cross motion, defendant submitted, among other things, two affirmed peer review reports, each of which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies provided. In opposition to defendant’s cross motion, plaintiff submitted an affirmation from 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]).

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing the second through fifth causes of action is granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 18, 2012

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 (William A. Viscovich, J.), entered November 22, 2010. 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, without 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. The Civil Court found that the evidence established plaintiff’s prima facie case and that “defendant established timely denials. The sole issue for trial is medical necessity.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted an affirmed 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 the services rendered. Defendant’s showing that the services were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil [*2]Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s 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 Amercian 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 motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 2012

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 (Johnny Lee Baynes, J.), entered July 24, 2009, deemed from a judgment of the same court entered August 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 24, 2009 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 $1,200.54.

ORDERED that the judgment is affirmed, without costs.

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 the appeal is deemed to have been taken (see CPLR 5501 [c]).

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

Defendant denied the claims based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affidavit [*2]submitted by defendant, the initial EUO had twice been rescheduled by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling, which occurs prior to the date of that scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition
precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, the judgment is affirmed. We reach no other issue.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 2012

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 (Rudolph E. Greco, Jr., J.), entered April 13, 2010. 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 affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. On the return date, the motion was adjourned for approximately one year with the new return date falling on a Tuesday. Defendant served a cross motion for summary judgment dismissing the complaint on the Friday before the new return date, i.e., four calendar days before the return date. Plaintiff did not submit opposition to defendant’s cross motion. The Civil Court denied both the motion and the cross motion. Defendant appeals from so much of the order as denied its cross motion.

Under the circumstances presented, we decline to consider defendant’s cross motion on the merits and affirm its denial on the ground that defendant failed to demonstrate that it had been timely served.

Plaintiff’s notice of motion states “Please take notice that answering affidavits, if any, are [*2]to be served upon the undersigned within seven (7) days prior to the return date of the within application.” We need not decide whether, as plaintiff argues, this was a proper demand, pursuant to CPLR 2214 (b), that any cross motion be served seven days before the return date of the motion since, in any event, defendant failed to even demonstrate that the cross motion was timely and properly served pursuant to CPLR 2215.

Pursuant to CPLR 2215, if CPLR 2214 (b) has not been invoked, cross motions are to be served three days prior to the time at which the motion is noticed to be heard. If the cross motion is served by mailing, it must be served six days prior to the return date for the motion (CPLR 2215 [a]) and if it is served by overnight delivery, it must be served four days prior to the return date (CPLR 2215 [b]). Defendant served the cross motion four days prior to the return date, but its affidavit of service failed to allege that service was made by overnight delivery or to offer sufficient facts to support such a finding (see CPLR 2103 [b] [6]).

Since plaintiff did not have an adequate opportunity to rebut the allegations contained in the cross motion (see Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844 [1986]), including defendant’s allegations that the services at issue were not medically necessary, the cross motion should not have been considered.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 18, 2012