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 (Lisa S. Ottley, J.), entered July 17, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the complaint as to claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005.

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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear at scheduled examinations under oath (EUOs). The Civil Court granted the motion to the extent of dismissing claims totaling $1,092.93 for services rendered November 23, 2005 through December 7, 2005, and plaintiff appeals.

A review of the record indicates that defendant’s motion papers were sufficient to establish that the letters scheduling the EUOs had been timely mailed in accordance with the standard office practices and procedures of the law firm retained by defendant to conduct the EUOs and that the claim denial form, which denied the claims in question on the ground of failure to appear for EUOs, 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]). Defendant also demonstrated that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of [*2]an eligible injured person’s assignee at an EUO upon a proper request is a condition precedent to the assignee’s right to recover under the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), defendant was entitled to summary judgment dismissing the claims in question.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 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, Queens County (Diane A. Lebedeff, J.), entered June 4, 2009. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

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 appeals from so much of an order as denied its motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claims were not paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form. Accordingly, the order, insofar as appealed from, is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: July 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 (Genine D. Edwards, J.), entered September 24, 2009. 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, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. The court found, with respect to plaintiff’s second cause of action, that defendant had failed to timely deny the claim at issue on the ground that the assignor had failed to appear for scheduled independent medical examinations (IMEs) and, with respect to plaintiff’s first and third causes of action, that the peer review reports submitted by defendant in support of its defense of lack of medical necessity were not, pursuant to CPLR 2106, in admissible form.

With respect to plaintiff’s first and third causes of action, the affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the claims at issue, on the ground of lack of medical necessity, 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]). Moreover, defendant annexed to its motion papers affirmed 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 [*2]for the services rendered (see e.g. 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]). Consequently, defendant established its prima facie entitlement to summary judgment upon these causes of action.

In opposition to the motion, plaintiff failed to raise a triable issue of fact with respect to the first and third causes of action since plaintiff failed to submit an affirmation from a doctor rebutting the conclusions set forth in the peer review reports (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]). While plaintiff asserted that Dr. Schechter’s peer review report contained a stamped signature and, as a result, the peer review report was inadmissible, that assertion, without any indication as to why plaintiff believed that the signature was a stamped facsimile signature, was insufficient to raise an issue of fact (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50587[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s first and third causes of action should have been granted.

With respect to plaintiff’s second cause of action, defendant established that it had timely denied the claim at issue on the ground that the assignor had failed to appear at scheduled IMEs, by submitting an affidavit from an employee of Transcion Corporation, which was hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices were sent to the assignor on April 16, 2008 and May 9, 2008 in accordance with Transcion Corporation’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit of the doctor who was to perform the IMEs to establish that the assignor had failed to appear for the duly scheduled IMEs on May 8, 2008 and May 22, 2008 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since the appearance of the assignor at an IME was a “condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant was entitled to summary judgment dismissing plaintiff’s second cause of action.

Accordingly, the Civil Court’s order denying defendant’s motion for summary judgment is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*3]
Decision Date: June 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 (Robin S. Garson, J.), entered June 11, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the claims for the sums of $180 (dates of service July 6, 2006 – July 10, 2006), $180 (dates of service July 18, 2006 – July 31, 2006), $360 (dates of service August 4, 2006 – August 31, 2006), $180 (dates of service September 5, 2006 – September 25, 2006), and $270 (dates of service October 12, 2006 – October 23, 2006) are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover for acupuncture services rendered to its assignor. Plaintiff billed defendant at $90 per session. Defendant paid for some of the sessions, but at a reduced rate per session, and partially denied the claims for these sessions as to the unpaid portion, basing its determination of the appropriate amount of reimbursement upon the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Reimbursement for other sessions was entirely denied due to plaintiff’s assignor’s failure to attend scheduled independent medical examinations (IMEs). Defendant moved for summary judgment dismissing the complaint, contending that it was entitled to summary judgment with respect to those bills or portions of bills for which it had denied reimbursement based upon plaintiff’s assignor’s failure to attend scheduled IMEs and for which it had reduced reimbursement based upon the fee schedules. The Civil Court denied defendant’s unopposed motion on the ground that the motion presented “issues of credibility [*2]which the court cannot resolve on a motion for summary judgment,” and stated that the supporting exhibits themselves raised triable issues of fact. This appeal ensued.

A review of the record indicates that defendant’s motion papers were sufficient to establish that the letters scheduling the IMEs and that the claim denial 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]). Defendant also established that plaintiff’s assignor had failed to attend scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since the appearance of plaintiff’s assignor at the IMEs was a “condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant was entitled to summary judgment dismissing the complaint with regard to those claims which it had denied on that basis “retroactively to the date of loss” (id.), i.e., so much of the bill dated August 14, 2006 as sought to recover the sum of $180 (dates of service July 6, 2006 – July 10, 2006), $180 (dates of service July 18, 2006 – July 31, 2006), $360 (dates of service August 4, 2006 – August 31, 2006), $180 (dates of service September 5, 2006 – September 25, 2006), and $270 (dates of service October 12, 2006 – October 23, 2006).

With respect to the unpaid portions of the remaining bills which defendant claims were timely denied based upon the fee schedules, the letters from defendant to plaintiff which were annexed to defendant’s motion papers and which advised plaintiff that the processing of its bills was being delayed pending an examination under oath were insufficient to toll the 30-day period within which defendant was required to pay or deny those bills (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; see also Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Accordingly, defendant was not entitled to summary judgment with respect to those bills, albeit for a reason other than that stated by the Civil Court.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: June 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, Queens County (Diane A. Lebedeff, J.), entered September 25, 2009, deemed from a judgment of the same court entered December 2, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 25, 2009 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,665.13.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment 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 of lack of coverage due to fraudulent procurement of the insurance policy. The Civil Court granted plaintiff’s motion and implicitly denied defendant’s cross motion. A judgment was subsequently entered, from which we deem defendant’s appeal to be taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff demonstrated that defendant had not paid plaintiff’s claims. However, with respect to the claims seeking reimbursement in the amounts of $182.18, $892.72, $463.44, $202.80 and $270.40, plaintiff failed to show that the basis for defendant’s denials of these claims was conclusory, vague or had no merit as a matter of law. As a result, plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on these claims, [*2]and it is not necessary for this court to consider defendant’s opposition papers with respect thereto (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). While plaintiff asserted that it had not received NF-10 forms denying claims in the amounts of $230.09 and $2,423.50, the affidavit of defendant’s claims examiner, which established the timely mailing of these two denial of claim forms (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]), was sufficient to demonstrate that plaintiff was not entitled to summary judgment on these two claims (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, plaintiff’s motion for summary judgment should have been denied.

However, the Civil Court properly declined to grant defendant’s cross motion for summary judgment dismissing the complaint, since defendant did not submit sufficient evidence in admissible form to establish its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff correctly argues, as it did in the Civil Court, that the transcript of plaintiff’s assignor’s testimony at her examination under oath was not competent evidence as the transcript was neither signed by the witness nor certified by the court reporter (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]; cf. Zalot v Zieba, 81 AD3d 935 [2011]). Furthermore, defendant proffered various documents which were supported by an affidavit that was notarized in the State of Indiana, but, as plaintiff properly noted in opposition to the cross motion, the affidavit was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1) (see Citibank, [S.D.] N.A. v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied. We leave undisturbed the Civil Court’s implicit denial of defendant’s cross motion for summary judgment dismissing the complaint.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 28, 2011

—[*1] Serpe, Andree & Kaufman, Huntington, N.Y. (Cynthia G. Gamana of counsel), for appellant.

Bandel & Bandel, Garden City, N.Y. (Steven Bandel of counsel), for respondents.

In two related subrogation actions to recover insurance benefits paid to the plaintiff’s insured in actions Nos. 1 and 3 and a related action to recover damages for personal injuries (action No. 2), the plaintiff in actions Nos. 1 and 3 appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated June 17, 2010, as denied that branch of its motion which was, in effect, to dismiss the counterclaim asserted against it in action No. 3 and, in effect, granted the cross motion of the defendants in actions Nos. 1 and 3 for an award of costs and an attorney’s fee against it pursuant to CPLR 8303-a and 22 NYCRR 130-1.1.

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the motion of the plaintiff in actions Nos. 1 and 3 which was, in effect, to dismiss the counterclaim asserted against it in action No. 3 is granted, and the cross motion of the defendants in actions Nos. 1 and 3 for an award of costs and an attorney’s fee against the plaintiff in actions Nos. 1 and 3 pursuant to CPLR 8303-a and 22 NYCRR 130-1.1 is denied.

Allegedly, on June 8, 2003, a vehicle operated by Scott Shelofsky and owned by Scott Shelofsky and/or Toni Ann Shelofsky (hereinafter together the Shelofskys) collided with a vehicle operated by Rebecca E. Munoz and owned by Bina E. Munoz. Providence Washington Insurance Company (hereinafter Providence) paid the Shelofskys’ insurance claim for damage to their vehicle [*2]resulting from the collision, pursuant to an insurance policy it had issued to them. Thereafter, Providence, as subrogee of the Shelofskys, commenced an action in the District Court, Nassau County, against Bina E. Munoz and Rebecca E. Munoz (hereinafter together the defendants) to recover the insurance benefits it paid to the Shelofskys (hereinafter action No. 3). In their answer, the defendants interposed a counterclaim against Providence to recover damages for injury to property, alleging that damage to their vehicle was caused by Scott Shelofsky’s negligent operation of the Shelofsky vehicle. Providence then commenced a second subrogation action against the defendants in the Supreme Court, Nassau County, this time to recover certain no-fault and uninsured motorist benefits it had paid to the Shelofskys (hereinafter action No. 1).

In an order dated June 25, 2007, the Supreme Court transferred action No. 3 from the District Court to the Supreme Court and joined actions Nos. 1 and 3 for purposes of trial, together with a related personal injury action commenced by Rebecca Munoz against the Shelofskys in connection with the same collision (hereinafter action No. 2). Thereafter, Providence moved pursuant to CPLR 3217 (b) to voluntarily discontinue its causes of action in actions Nos. 1 and 3 and, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3. Providence contended that because a counterclaim in a subrogation action may be employed only to assert a set-off against the subrogee’s claim, the voluntary discontinuance of its causes of action warranted dismissal of the counterclaim in action No. 3. The defendants cross-moved for an award of costs and an attorney’s fee against Providence pursuant to CPLR 8303-a and 22 NYCRR 130-1.1. The Supreme Court granted that branch of Providence’s motion which was to voluntarily discontinue its causes of action in actions Nos. 1 and 3, but denied that branch of Providence’s motion which was, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3 and, in effect, granted the defendants’ cross motion. We reverse the order insofar as appealed from.

Contrary to the defendants’ contention, their counterclaim against Providence in action No. 3 “cannot effect an affirmative recovery against [Providence], but rather may be maintained . . . only to the extent of setting off [Providence]’s claim” (Peerless Ins. Co. v Michael Beshara, Inc., 75 AD3d 733, 736 [2010]; see Allstate Ins. Co. v Babylon Chrysler Plymouth, 45 AD2d 969 [1974]; U.S. Underwriters Ins. Co. v Greenwald, 31 Misc 3d 1206[A], 2010 NY Slip Op 52394[U] [2010], affd 82 AD3d 411 [2011]). Accordingly, the Supreme Court, upon granting that branch of Providence’s motion which was to voluntarily discontinue its causes of action in action Nos. 1 and 3, also should have granted that branch of Providence’s motion which was, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3.

Moreover, the Supreme Court improvidently exercised its discretion in granting the defendants’ cross motion for an award of costs and an attorney’s fee against Providence pursuant to CPLR 8303-a and 22 NYCRR 130-1.1. The defendants failed to demonstrate that Providence’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c), or that its actions were commenced or continued in bad faith (see CPLR 8303-a [c] [i]; Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]; Karnes v City of White Plains, 237 AD2d 574, 576 [1997]). We note that the Supreme Court did not follow the proper procedure for imposing costs and an attorney’s fee, since it failed to specify in a written decision the conduct upon which the award was based and the reasons why it found the conduct to be frivolous (see 22 NYCRR 130-1.2; Badillo v Badillo, 62 AD3d 635, 636 [2009]; Hamilton v Cordero, 10 AD3d 702, 703 [2004]). Dillon, J.P., Covello, Chambers and Roman, JJ., concur.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

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

In an action to recover no-fault medical payments under two insurance policies, the defendant appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), entered July 19, 2010, which granted the plaintiffs’ motion for summary judgment on the complaint and denied its cross motion for summary judgment, in effect, dismissing the complaint, and (2) as limited by its brief, from so much of an order of the same court entered February 7, 2011, as denied those branches of its motion which were for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint and its opposition to the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order entered July 19, 2010, is modified, on the law, by deleting the provision thereof granting the plaintiffs’ motion for summary judgment on the complaint, and substituting therefor a provision denying the plaintiffs’ motion; as so modified, the order entered July 19, 2010, is affirmed, without costs or disbursements; and it is further,

Ordered that the appeal from so much of the order entered February 7, 2011, as denied that branch of the defendant’s motion which was for leave to renew its opposition to the plaintiffs’ motion for summary judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order entered July 19, 2010; and it is further,

Ordered that the order entered February 7, 2011, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their causes of action to recover no-fault insurance medical payments by submitting evidence that the necessary billing documents had been mailed and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2011]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]). However, in opposition, the defendant raised triable issues of fact with respect to whether the limits [*2]of the policy at issue in the first cause of action were exhausted through the payment of claims for prior services during a time that the 30-day period was tolled pursuant to the defendant’s request for additional verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [a] [1]; 65-3.15; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 771-772 [2006]), and whether the claim at issue in the second cause of action was paid by the defendant, with appropriate overdue interest, prior to the commencement of this action (see Insurance Law § 5106 [a]). Accordingly, the Supreme Court should have denied the plaintiffs’ motion for summary judgment on the complaint. Because of the aforementioned issues of fact, the Supreme Court properly denied the defendant’s cross motion for summary judgment, in effect, dismissing the complaint.

The Supreme Court also properly denied that branch of the defendant’s motion which was for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint, as the defendant failed to offer a reasonable justification for its failure to submit the new facts at the time of the prior motion (see CPLR 2221 [e] [3]; Matter of Leone Props., LLC v Board of Assessors for Town of Cornwall, 81 AD3d 649, 652 [2011]; Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]). Prudenti, P.J., Eng, Hall and Lott, JJ., concur.

—[*1] Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for appellant.

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

In an action to recover no-fault medical payments under certain insurance policies, the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered June 29, 2010, which granted the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley, for summary judgment on the fourth cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley, for summary judgment on its fourth cause of action is denied.

The plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law with respect to the fourth cause of action to recover no-fault medical payments by demonstrating that the necessary billing forms had been mailed to and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]).

However, in opposition, the defendant raised a triable issue of fact as to whether it issued a denial of claim form dated April 2, 2008, to the hospital (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]). Accordingly, the Supreme Court should have denied the hospital’s motion for summary judgment on its fourth cause of action. Rivera, J.P., Eng, Roman 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 (Sylvia G. Ash, J.), entered December 9, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits for supplies provided to plaintiff’s assignor, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff did not make out its prima facie case and that there was no coverage since the accident was staged. Finding that the examination-under-oath transcripts were insufficient to establish an issue of fact as to whether the injuries arose from an insured incident, the Civil Court granted plaintiff’s motion. This appeal by defendant ensued.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit also established that the claim was mailed to defendant, as the affiant averred that she had personally mailed the claim, and that defendant did not deny the claim within 30 days. Consequently, plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), and the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although defendant did not deny the claim at issue, it is well settled that the failure to deny a claim does not preclude an insurer from asserting a lack-of-coverage defense premised on the fact or founded belief that the alleged injury did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The affidavit of defendant’s investigator is sufficient to demonstrate a founded belief that the alleged injuries did [*2]not arise out of an insured incident (see Central Gen. Hosp., 90 NY2d at 199). Thus, plaintiff’s motion for summary judgment should have been denied.

Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.

Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: June 15, 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 (Alice Fisher Rubin, J.), entered November 4, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, after issue was joined, plaintiff moved for summary judgment and defendant purported to cross-move for summary judgment dismissing the complaint on the ground that, among other things, plaintiff could not recover for services rendered by an independent contractor. The Civil Court (Genine D. Edwards, J.) denied plaintiff’s motion and denied defendant’s purported cross motion on the ground that “plaintiff was not properly noticed of the intent to cross move for summary judgment.” Thereafter, defendant moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint based upon the fact that the services were rendered by an independent contractor. The Civil Court denied defendant’s motion.

Contrary to plaintiff’s contention, defendant was permitted to move to dismiss on the ground that the complaint fails to state a cause of action notwithstanding defendant’s service of an answer (CPLR 3211 [a] [7]; [e]). Plaintiff’s claim forms state that the services at issue were rendered by an independent contractor. Where services are rendered by an independent contractor, the independent contractor is the provider entitled to the payment of the assigned first-party no-fault benefits (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). This court has held that a statement in a claim form, that the services were provided by an independent contractor, may not be corrected once litigation has commenced, even if the statement was erroneous (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant has conclusively demonstrated that plaintiff is not the provider entitled to payment of the assigned first-party no-fault benefits (A.M. Med. Servs., P.C., 22 Misc 3d 70; Rockaway [*2]
Blvd. Med. P.C., 9 Misc 3d 52), and defendant’s motion to dismiss for failure to state a cause of action should have been granted (see CPLR 3211 [a] [7]; see generally Sokol v Leader, 74 AD3d 1180 [2010]).

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011