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 August 27, 2009. The order denied defendant’s cross motion for summary judgment dismissing the complaint and its motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case, and granted plaintiff’s cross motion for a protective order.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and cross motion for a protective order are 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 which denied defendant’s cross motion for summary judgment dismissing the complaint, denied defendant’s motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s cross motion for a protective order, and granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case.

This action involves three claim forms for psychological services provided to plaintiff’s assignor. As to the claim form seeking to recover the sum of $120 dated May 22, 2006, the affidavit of defendant’s no-fault specialist established that defendant had timely requested additional verification of this claim (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]), and that plaintiff had failed to respond to defendant’s initial and follow-up requests. As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the cause of action relating to this bill is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

With respect to the other two claims at issue in this lawsuit ($1,061.63 and $120), defendant established that it had timely denied these claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) on the ground that the services provided were not medically necessary. In support of its cross motion for summary judgment, defendant submitted, among other things, sworn peer review reports which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for the services for which payment was sought (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]). Plaintiff failed to rebut defendant’s evidence of the lack of medical necessity for these services. Consequently, defendant established its entitlement to summary judgment as to these two bills.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and its cross motion for a protective order are denied.

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

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants. McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered December 29, 2010, as denied that branch of their motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.

The plaintiffs made a prima facie showing that the plaintiff Nyack Hospital, as assignee of Rochelle Ferguson, was entitled to judgment as a matter of law on its cause of action to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed 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; 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, 1045-1046 [2009]).

In opposition to the motion, the defendant failed to raise a triable issue of fact. The defendant acknowledged that it failed to timely deny that claim, but contended that it raised a triable issue of fact by submitting evidence which indicates that Ferguson intentionally caused her injury in an attempt to commit suicide. However, the failure to establish timely denial of the claim results in the preclusion of the defense that Ferguson’s allegedly intentional act was the cause of the accident and subject to exclusion under the insurance contract (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action.

In light of our determination, we need not address the plaintiffs’ remaining contention. Mastro, J.P., Leventhal, Austin and Cohen, 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, Queens County (Diane A. Lebedeff, J.), entered November 19, 2009, deemed from a judgment of the same court entered December 23, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,971.57.

ORDERED that the judgment is reversed, without costs, the order entered November 19, 2009 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. Defendant opposed the motion on the grounds that the services rendered lacked medical necessity and that the provider billed in excess of the workers’ compensation fee schedule. By order entered November 19, 2009, the Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. 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 on appeal 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 the denial of claim forms at issue were 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]). With respect to the claim at issue in plaintiff’s first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a [*2]factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff’s first cause of action (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]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker’s compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 26, 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 July 17, 2009, deemed from a judgment of the same court entered August 6, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 17, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $370.34.

ORDERED that the judgment is reversed, without costs, the order granting 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, defendant appeals from an order granting plaintiff’s motion for summary judgment. A
judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing administrator 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]). However, as the pertinent facts concerning the failure of plaintiff’s assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied. We reach no other issue. [*2]

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 24, 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 June 19, 2009. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order.

ORDERED that the appeal is dismissed as academic.

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 entered June 19, 2009 as granted the branch of defendant’s cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order. Subsequent to the entry of the June 19, 2009 order, the Civil Court entered an order dismissing the action. The dismissal of the action rendered this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 2007 NY Slip Op 50673[U], 15 Misc 3d 131[A] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Golia, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: May 24, 2011

—[*1] Joseph Henig, P.C., Bellmore, N.Y. (Marc Henig of counsel), for appellant.

Rossillo & Licata, LLP, Westbury, N.Y. (John J. Rossillo of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff, NYU-Hospital for Joint Diseases, as assignee of Gudrun Cancian, appeals from an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2009, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

On August 2, 2008, Gudrun Cancian was hospitalized at NYU-Hospital for Joint Diseases (hereinafter the hospital) after being injured in an automobile accident. She had been driving a vehicle insured by the defendant, Esurance Insurance Company (hereinafter Esurance). On September 5, 2008, the hospital, as Cancian’s assignee, mailed, among other things, an NF-5 form to Esurance, seeking payment of Cancian’s hospital bill. Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ ” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996 [2009], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law [*2]based on the untimeliness of the denial of claim. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]).

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103 [b] [2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).

Accordingly, the Supreme Court properly denied the hospital’s motion for summary judgment on the complaint. Prudenti, P.J., Angiolillo, Dickerson and Roman, 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 (Peter Paul Sweeney, J.), entered October 2, 2009. The order granted 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, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff’s assignor’s failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC’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 submitted an affidavit of an employee of the office manager of the psychologist who was to perform the IMEs, which was 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]). In addition, an affidavit executed by defendant’s no-fault specialist demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 [*2]Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff’s claim based upon the assignor’s failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see 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, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court’s order granting defendant’s motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 23, 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 October 21, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 21, 2009 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,670.40.

ORDERED that the judgment is reversed, without costs, the order entered October 21, 2009 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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 of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. Plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by defendant’s claims adjuster was sufficient to establish that defendant’s denial of claim forms were timely mailed in accordance with its 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 [*2][App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant’s motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor’s shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 23, 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 August 14, 2009, deemed from a judgment of the same court entered September 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 14, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $262.66.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. In support of its cross motion and in opposition to plaintiff’s motion, defendant asserted that it had timely denied plaintiff’s claims on the ground that the assignor had failed to attend duly scheduled independent medical examinations (IMEs) and that plaintiff’s motion for summary judgment was premature because plaintiff had failed to respond to defendant’s discovery demands. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, finding that since defendant’s first IME scheduling letter had been mailed prior to defendant’s receipt of plaintiff’s claim forms, it was a nullity and, as a result, defendant had failed to establish that it had sent a valid IME scheduling letter and a follow-up scheduling letter. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the Civil Court’s determination, “appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim [*2]form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff’s claim forms, the scheduling letter was not a nullity (id.).

However, since defendant’s moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor’s nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor’s IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant’s reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant’s cross motion for summary judgment was properly denied.

While defendant argues that plaintiff’s motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant’s discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff’s motion for summary judgment was properly granted.

In light of the foregoing, the judgment is affirmed.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: May 23, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a decision of the Civil Court of the City of New York, Kings County (Dawn Marie Jiminez, J.), dated September 11, 2008, deemed from a judgment of the same court entered December 1, 2008 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $7,201.77.

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 were medically necessary, as all elements of plaintiff’s case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the nonjury trial, defendant’s attorney requested an adjournment to “secure the appearance of [its] witness in this matter.” The Civil Court denied the application and issued a decision awarding judgment in defendant’s favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court’s determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant [*2]defendant an adjournment. Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: May 23, 2011