SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from a decision of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated January 29, 2009, deemed from a judgment of the same court entered April 19, 2010 (see CPLR 5520 [c]). The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on December 23, 1999 were medically necessary. After a nonjury trial, the District Court issued a decision awarding judgment in defendant’s favor. Plaintiff appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

At trial, defendant’s doctor testified that, in his opinion, the medical services provided by plaintiff were not medically necessary. His peer review report concluding that there was a lack of medical necessity was also entered into evidence. This evidence was sufficient to establish that the services rendered were not medically necessary. Plaintiff called no witnesses in rebuttal. [*2]In view of the foregoing, the judgment dismissing the complaint is affirmed (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: December 08, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered October 30, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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

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 established that its denial of claim forms were 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]). With regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant’s claims examiner stated in his affidavit submitted in opposition to plaintiff’s motion that he had denied this claim based upon the failure [*2]of plaintiff’s assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff’s assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant’s belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule, we find that an issue of fact exists with respect thereto (see 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]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant denied plaintiff’s claim dated September 11, 2006 based upon plaintiff’s assignor’s failure to appear for duly scheduled IMEs. Defendant demonstrated that it had timely mailed the IME requests, through the submission of an affidavit of an employee of the entity which scheduled the IMEs on behalf of defendant, who stated that she had personally mailed the IME requests on particular dates (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit and an affirmation, both of which were sufficient to establish 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]). As a result, defendant was entitled to summary judgment dismissing this claim (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 05, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret Pui Yee Chan, J.), entered October 23, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint 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 so modified, 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 denying its motion for summary judgment dismissing
the complaint and granting plaintiff’s cross motion for summary judgment, arguing that it had properly reimbursed plaintiff the amount to which plaintiff was entitled for the acupuncture services it had rendered, by using the workers’ compensation medical fee schedule.

In support of its motion, defendant submitted an affidavit by an employee of its claims division, which was sufficient to establish that the verification requests and denial of claim forms had been timely mailed in accordance with defendant’s standard office 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]), but which was insufficient to establish defendant’s contention that the amounts charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers’ compensation fee schedule. The applicable portion of the fee schedule was not [*2]annexed to defendant’s papers. While courts are permitted to take judicial notice of the workers’ compensation fee schedule (see LVOV Acupuncture, P.C. v Geico Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]; see also Kingsbrook Jewish Med. Ctr.v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), a party seeking to have the court take judicial notice should provide the court with sufficient information to permit the court to take judicial notice and should advise the adverse party of the request for judicial notice (CPLR 4511 [b]). Inasmuch as that was not done here, we decline to take judicial notice of the workers’ compensation fee schedule in this case. Accordingly, with respect to the acupuncture services rendered by its licensed acupuncturist for the acupuncture sessions from August 7, 2006 through September 21, 2006, the Civil Court properly denied defendant’s motion for summary judgment. Likewise, the Civil Court properly denied defendant’s motion for summary judgment to the extent that it sought dismissal of plaintiff’s claim for the initial acupuncture visit of August 4, 2006, as defendant did not proffer sufficient evidence to warrant the dismissal thereof (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Plaintiff, however, was not entitled to summary judgment on its cross motion, as it failed to establish that there was an untimely denial or that the denial was conclusory, vague or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78AD3d 1168 [2010]). Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), dated January 21, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross 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 granting defendant’s motion for summary judgment
dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

Defendant demonstrated that it had timely mailed the NF-10 denial of claim forms based upon its standard office practices and procedures (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’s affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s conclusion that there was a lack of medical necessity for the subject medical supplies. Plaintiff challenges defendant’s peer reviewer’s reliance on various medical records. Some of the records were prepared by plaintiff and, accordingly, plaintiff may not challenge the reliability of those records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). In addition, contrary to plaintiff’s assertion, the fact that defendant’s [*2]peer reviewer took into consideration medical records of other providers in formulating his opinion does not render the peer review report inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co,, 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Inasmuch as plaintiff failed to rebut defendant’s showing, defendant was entitled to summary judgment dismissing the complaint (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]). We note that plaintiff’s remaining contentions are either unpreserved or lack merit.

Accordingly, the order is affirmed.

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

Rios, J., dissents in part and concurs in part in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and RIOS, JJ.
PARSONS MEDICAL SUPPLY, INC.
as Assignee of MARIE JOSEPH,

Appellant,

-against-

NO. 2010-1201 K C

DECIDED
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, [*3]

Respondent.

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant’s motion for summary judgment is denied in the following memorandum:

The affidavit of defendant’s “litigation representative” in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a “pick up” bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant’s motion for summary judgment is denied.

Plaintiff’s cross motion was properly denied. The attorney’s affirmation was insufficient to establish plaintiff’s entitlement to judgment as a matter of law.
Decision Date: November 30, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 September 22, 2009. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant’s motion by the new return date, the order granting defendant’s motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s appeal is dismissed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: November 30, 2011

—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Joseph A. Niemczyk of counsel), for appellant.

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

In an action to recover no-fault medical payments under certain policies of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered May 19, 2010, as, upon reargument, vacated the determination in an order of the same court dated August 19, 2009, denying the plaintiff’s motion for summary judgment on the complaint, and thereupon granted the plaintiff’s motion for summary judgment on the complaint.

Ordered that the order entered May 19, 2010, is modified, on the law, by deleting the provisions thereof, upon reargument, vacating the determination in the order dated August 19, 2009, denying those branches of the plaintiff’s motion which were for summary judgment on the first and third causes of action, and thereupon granting those branches of the motion, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated August 19, 2009, denying those branches of the motion; as so modified, the order entered May 19, 2010, is affirmed insofar as appealed from, without costs or disbursements.

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]). No-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, including verification of all relevant information requested (see 11 NYCRR 65-3.5, 65-3.8 [a]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]).

With respect to the first cause of action, in which the plaintiff sought benefits as assignee of Gregoria Young, the plaintiff made a prima facie showing that it had mailed the prescribed statutory billing form to the defendant, and did not receive payment within the requisite 30-day period. In opposition to that showing, however, the defendant insurer submitted proof that it timely issued a denial of this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendant failed to timely pay or deny the claim, the Supreme Court, upon [*2]reargument, should have adhered to its prior determination denying summary judgment to the plaintiff on this cause of action without regard to the merits of the defendant’s denial of the claim (see Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 [2d Dept 2011]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]).

With respect to the second cause of action, in which the plaintiff sought benefits as assignee of Loicyra Bulado, also known as Loicyra Almeda, the plaintiff offered proof that it had mailed the prescribed statutory billing form and did not receive payment therefor within 30 days after complying with the defendant’s verification requests (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In opposition thereto, the defendant failed to raise a triable issue of fact. Accordingly, upon reargument, the plaintiff was properly awarded summary judgment on the second cause of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

With respect to the third cause of action, in which the plaintiff sought benefits as assignee of Anthony Prunella, the plaintiff submitted proof that it did not receive payment of its claim within 30 days after submission thereof to the defendant. However, in opposition thereto, the defendant established that it timely requested verification of this claim, and that it paid the claim within 30 days after receipt of the requested verification (see 11 NYCRR 65-3.5 [b]; see also New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]). Accordingly, upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of the plaintiff’s motion which was for summary judgment on the third cause of action. Prudenti, P.J., Skelos, Balkin and Sgroi, JJ., concur.

—[*1] The Zuppa Firm PLLC, Brooklyn, N.Y. (Raymond J. Zuppa of counsel), for appellants.

McDonnell & Adels, PLLC, Garden City, N.Y. (Rivkin Radler LLP [Evan H. Krinick, Cheryl F. Korman, Barry I. Levy, and Stuart M. Bodoff], of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2010, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action seeking, among other things, a judgment declaring that it had no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C. (hereinafter collectively the professional corporation defendants). The first cause of action sought a judgment declaring that the professional corporation defendants were unlawfully incorporated and, thus, ineligible to collect or recover no-fault benefits. The second cause of action sought a judgment declaring that the services provided by the professional corporation defendants were performed by independent contractors or other nonemployees, and that the professional corporations were, therefore, not entitled to collect or recover no-fault benefits.

The professional corporation defendants, along with the defendants Valentina Anikeyeva and Andrey Anikeyev (hereinafter collectively the defendants), moved, among other things, pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to [*2]state a cause of action. In an order entered September 3, 2010, the Supreme Court, inter alia, denied those branches of the defendants’ motion. We affirm the order insofar as appealed from.

“In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1162 [2011] [internal quotation marks omitted]).

“A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see Rockland Light & Power Co. v City of New York, 289 NY 45, 51 [1942]; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011]; Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1969]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3001.13).

Accordingly, where a cause of action is sufficient to invoke the court’s power to “render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy” (CPLR 3001; see 3017 [b]), a motion to dismiss that cause of action should be denied (see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]; Rockland Light & Power Co. v City of New York, 289 NY at 51; Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d at 1150; Staver Co. v Skrobisch, 144 AD2d at 450; Ackert v Union Pac. R. R. Co., 4 AD2d 819, 821 [1957]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac ¶ 3001.13).

Here, contrary to the defendants’ contention, the allegations in the first and second causes of action presented justiciable controversies sufficient to invoke the Supreme Court’s power to render a declaratory judgment (see CPLR 3001; Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587 [2009]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 71 [2008]).

The defendants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were to dismiss the first and second causes of action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Mastro, J.P., Dillon, Cohen and Miller, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2011

APPEARANCES OF COUNSEL

Freiberg, Peck & Kang, LLP, New York City (Yilo J. Kang of counsel), for appellant. Law Office of Emilia Rutigliano, Brooklyn (Jonathan R. Vitarelli of counsel), for respondent.

{**34 Misc 3d at 30} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial, pursuant to a previously entered order, was whether the medical equipment supplied to plaintiff’s assignor was medically necessary. Prior to the commencement of the nonjury trial, plaintiff moved “to preclude defendant’s doctor based on an inability of defendant” to, in essence, establish the reliability of the medical records reviewed by defendant’s peer review doctor. The Civil Court ruled that defendant’s doctor would not be permitted to testify as to the contents of the medical records he had reviewed. Thus, the court opined, “the peer review doctor could not testify as to the medical basis for his opinion that the services [sic] were not medically necessary.” Accordingly, the Civil Court granted plaintiff’s motion for a directed verdict and entered judgment for plaintiff in the principal sum of $1,142.25.

Defendant’s doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant’s doctor had reviewed medical records that had been submitted to defendant by the assignor’s various health care providers, the purpose of defendant’s doctor’s testimony was not to establish, for example, the injury to plaintiff’s assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant’s burden to prove these facts. Defendant’s position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor’s alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant’s doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant’s doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor’s medical records, and plaintiff’s objection lacked merit. Accordingly, defendant’s doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant’s doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant’s witness’s characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Finally, we further note that, to the extent the documents objected to by plaintiff were plaintiff provider’s own medical records, plaintiff could not, in any event, have objected to their admissibility on the ground that such records are not professionally reliable (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover payment of no fault benefits under a policy of automobile insurance, the plaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is affirmed, with costs.

Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff’s additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered April 29, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 appeals from an order denying its motion for summary judgment dismissing the complaint.

In support of its motion, defendant submitted, among other things, a sworn peer review report which set forth the factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s showing that such services were not medically necessary was not rebutted by plaintiff. In light of the foregoing, and the Civil Court’s implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant’s motion for summary judgment dismissing the complaint 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011