—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.

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

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered May 20, 2010, which, upon an order of the same court entered May 7, 2010, granting the plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against it in the total sum of $22,446.23.

Ordered that the judgment is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff’s claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “A proper denial of claim must include the information called for in the prescribed denial of claim form” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form “was fatally defective in that it omitted numerous items of requested information, and thus was incomplete” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733 [2010]). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 [*2]AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).

For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.

The defendant’s contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]). Contrary to the defendant’s contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.

The parties’ remaining contentions are without merit or need not be reached in light of our determination. Covello, J.P., Eng, Chambers 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, Queens County (Diane A. Lebedeff, J.), entered March 19, 2009, deemed from a judgment of the same court entered April 7, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 19, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,723.

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 of the Civil Court granting plaintiff’s motion for summary judgment. We deem defendant’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant’s papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., and Weston J., concur. [*2]

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff’s assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.
Decision Date: May 12, 2011

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

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

In an action to recover no-fault benefits under a contract of insurance, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered October 1, 2010, as denied the motion of the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak, for summary judgment on the second cause of action.

Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of Chris Kang, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak (hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of law on the second cause of action by demonstrating that the necessary billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Wyckoff Hgts. Med. Ctr. v Country-Wide Ins. Co., 71 AD3d 1009, 1010 [2010], lv granted 15 NY3d 709 [2010]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether the plaintiff fully complied with the defendant’s demand for verification (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517, 518 [2008]; Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2006]). The defendant was not obligated to pay or deny the claim until all demanded verification was provided by the plaintiff (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d at 518). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the second cause of action. Dillon, J.P., Covello, Eng and Chambers, 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 (Carmen R. Velasquez, J.), entered February 25, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, medical peer review reports which set forth factual bases and medical rationales for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that such supplies 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 cross 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 & [*2]11th Jud Dists 2007]).
Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 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 (Carmen R. Velasquez, J.), entered February 25, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that such supplies 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 cross 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 [*2]Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 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, Kings County (Dolores L. Waltrous, J.), entered February 18, 2010. The order granted plaintiff’s motion for the entry of a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order is reversed, without costs, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits by the service on October 17, 2006 of a summons with endorsed complaint. Defendant defaulted. Approximately two years and four months later, in February 2009, plaintiff moved for the entry of a default judgment. Defendant opposed the motion on the ground that it was supported by insufficient proof, and cross-moved to dismiss pursuant to CPLR 3215 (c). Plaintiff failed to offer any opposition to defendant’s cross motion. By order entered February 18, 2010, the Civil Court granted plaintiff’s motion to enter a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant’s cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corely, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the motion papers, we find that dismissal of [*2]the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff’s motion for the entry of a default judgment is denied, and defendant’s cross motion to dismiss the complaint is granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: April 26, 2011

[*1]

Supreme Court, Appellate Term, Second Department, April 26, 2011

APPEARANCES OF COUNSEL

G.H. Chen & Associates, P.C., New York City (Graeme H. Chen and David B. O’Connor of counsel), for appellant. John E. McCormack, P.C., Garden City (Erin M. Crowley of counsel), for respondent.

{**32 Misc 3d at 5} OPINION OF THE COURT

Memorandum.

Ordered that the judgment, insofar as appealed from, is affirmed, without costs.

In this action by a health care provider to recover assigned first-party no-fault benefits, defendant sought discovery of documents and information, and to depose Dr. Solomon, a principal of plaintiff, in relation to the propriety of plaintiff’s incorporation and operation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). After serving plaintiff with further discovery demands, defendant moved for an order, among other matters, consolidating this action with 201 other actions pending between the parties, compelling Dr. Solomon to appear for a deposition in relation to the consolidated actions, compelling discovery of the documents and information previously sought and authorizing additional discovery with respect to plaintiff’s contractual relationships with other corporate providers and with certain named individuals. Plaintiff opposed defendant’s motion, arguing that defendant had failed to plead a defense based on fraud, and, in any event, that the discovery demands were overbroad, and cross-moved, pursuant to CPLR 3103, for a protective order “denying defendant’s request for further discovery and/or depositions,” and, alternatively, compelling its own discovery. Plaintiff argued that defendant had produced no proof that plaintiff’s incorporation or operation violated state licensing laws, and that defendant’s failure timely to pay or{**32 Misc 3d at 6} deny the claim forfeited all defenses including those based on plaintiff’s alleged fraudulent incorporation or operation. Defendant opposed the cross motion and argued that plaintiff’s January 5, 2009 stipulation, in an unrelated no-fault benefits recovery action, to produce much of the discovery sought by the defendant therein, should be construed to evidence the absence of merit to plaintiff’s opposition to discovery. In an order entered June 11, 2009, the Civil Court denied plaintiff’s cross motion for a [*2]protective order, in part, because “[plaintiff had] stipulated to the exact relief it now wishes to dispute.” The order further granted defendant’s motion to the extent of consolidating the 202 actions “for the limited purpose of determining . . . issues of plaintiff’s fraudulent incorporation within the meaning of Mallela,” and directing that, within 90 days of the order, plaintiff must produce Dr. Solomon for a deposition “to answer questions concerning plaintiff’s fraudulent incorporation within the meaning of Mallela” and that, within 60 days, plaintiff must

“[p]rovide complete responses to defendant’s discovery demands including but not limited to all factoring agreements or assignment of the disputed bills in question, all federal, state and local income tax returns for Radiology Today, P.C. from 2006 to present, the names and addresses of all persons and entities with financial interest in the plaintiff as defined by Public Health Law § 238 . . . , all employee information as demanded . . . [and] all management agreements and personal tax return[s] of Dr. Robert Solomon from the year 2006 to [the] present.”

The order also stated that plaintiff’s failure to provide the discovery granted would “support motions to dismiss.” Plaintiff declined to comply with the order insofar as it granted defendant’s motion to compel discovery, and, by order dated October 9, 2009, the Civil Court dismissed the 202 consolidated actions. A judgment was entered on November 16, 2009. Plaintiff appeals from so much of the judgment as dismissed the complaint in the case at bar.

The defense that plaintiff is ineligible to receive no-fault benefits because it failed to comply with state or local licensing requirements “is not waived by the failure to assert it in a denial of claim form nor is it precluded as a result of an untimely denial” (Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37, 39 [App Term, 2d & 11th Jud Dists 2007] [citations omitted]).{**32 Misc 3d at 7} No-fault benefits may not be paid to medical service corporations which submit “materially false filings with state regulators” (Mallela, 4 NY3d at 321) or, if properly formed under the “facially valid cover of . . . nominal physician-owners” (id. at 319), are operated by nonphysicians (id. at 321). In the latter case, “carriers may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law” (id.), in particular, “New York State or local licensing requirement[s]” (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]).

Plaintiff contends that the discovery order was improper because, in the answer and in support of its motion to compel discovery, defendant failed to “state[ ] in detail” the “circumstances constituting the wrong,” citing CPLR 3016 (b). There is no requirement that a defense predicated upon the failure to comply with “New York State or local licensing requirement[s]” (Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]) be pleaded with particularity pursuant to CPLR 3016 (b) (see generally V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term, 2d, 11th & 13th Dists 2009]). In addition, while mere conclusory allegations are never sufficient to obtain discovery with respect to a Mallela-based defense, defendant’s motion papers were sufficient to demonstrate that a Mallela-based defense [*3]was potentially meritorious.

Plaintiff’s motion for a protective order, filed nearly four months after defendant had served its supplemental discovery, was untimely (see CPLR 3122 [a]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc 3d 119, 122 [App Term, 2d & 11th Jud Dists 2006]). The failure of a party to timely challenge the propriety of discovery demands normally “obligate[s] [it] to produce the information sought” (New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *2 [App Term, 9th & 10th Jud Dists 2009]; see Fausto v City of New York, 17 AD3d 520, 522 [2005]), with the exception of items which are palpably improper or privileged (see Fausto, 17 AD3d at 522; Marino v County of Nassau, 16 AD3d 628 [2005]). As most of the discovery demands were not palpably improper or privileged, and in light of plaintiff’s failure to provide any discovery, the judgment, insofar as appealed from, dismissing the complaint in the case at bar is affirmed.

In view of the foregoing, we pass on no other issue.

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

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 12, 2009. The judgment, entered pursuant to an order of the same court dated June 8, 2009 granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,204.50.

ORDERED that the judgment is reversed, without costs, the order dated June 8, 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 for medical supplies furnished to its assignors who were allegedly injured in a motor vehicle accident, defendant moved for summary judgment dismissing the complaint on the ground that it had not issued an insurance policy to the person who purportedly owned the vehicle involved in the accident, and that, therefore, there was no coverage. Plaintiff opposed the motion, and the Civil Court (Alice Fisher Rubin, J.), in an order entered September 12, 2007, denied the motion on the ground that triable issues of fact exist. Thereafter, plaintiff moved for summary judgment, and defendant argued in opposition to the motion that the motion should be denied since the September 12, 2007 order had already determined that there were triable issues of fact. Defendant’s opposition papers consisted of essentially the same documentation that had been submitted to the court in support of its own motion for summary judgment, i.e., a police accident report indicating that plaintiff’s assignor, Reuven Hafizov, was the operator of a vehicle registered to Aharon Shimonov and insured by defendant; a copy of an application for no-fault benefits seeking benefits under a purported policy issued to the purported policyholder under a purported policy number; claim denial forms denying the bills received by defendant because defendant’s records indicated that Aharon Shimonov did not have a policy with defendant; and an affidavit of a claims representative stating that a search of defendant’s records revealed that State Farm did not issue an insurance policy to Aharon Shimonov under the purported policy number. In an order dated June 8, 2009, the Civil Court (Robin S. Garson, J.) granted plaintiff’s motion, finding that plaintiff had established its prima facie entitlement to summary judgment and that defendant had failed to raise a triable issue of fact, since it had failed to describe what steps were [*2]undertaken to search its databases in order to determine that there was no policy. A judgment was subsequently entered in favor of plaintiff, from which defendant appeals.

Since defendant raised no issue in the Civil Court or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the Civil Court’s determination with respect thereto. With regard to defendant’s contention that the Civil Court violated the law of the case doctrine, even if this contention is correct, this court is not bound by that doctrine and may consider the motion on its merits (see Meekins v Town of Riverhead, 20 AD3d 399 [2005]).

In our opinion, while defendant’s proof did not establish as a matter of law that there was a lack of coverage (see Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Term, 2d & 11th Jud Dists 2008]), it was sufficient to raise a triable issue of fact with respect to the existence of coverage (see Hospital for Joint Diseases, 21 AD3d 348). Contrary to the finding of the Civil Court, defendant was not required to describe in detail the steps which it had taken in searching its records in order to demonstrate that there was no coverage in effect at the time of the accident (see Lenox Hill Radiology v Government Empls. Ins. Co., 28 Misc 3d 141[A], 2010 NY Slip Op 51638[U] [App Term, 1st Dept 2010]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 22, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated March 22, 2010. The order denied plaintiff’s motion to strike defendant’s demand for a trial de novo.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties participated in a mandatory arbitration proceeding (see Rules of the Chief Judge [22 NYCRR] part 28). Following the arbitration hearing, the arbitrator found in favor of plaintiff. Thereafter, defendant timely served and filed a demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12). Plaintiff moved to strike the demand, asserting that, while defense counsel had appeared at the arbitration hearing, that appearance was tantamount to a default since defendant had attempted to establish its defense of lack of medical necessity through non-evidentiary submissions of counsel, and had not produced its doctor to testify. As a result, plaintiff contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). The District Court denied plaintiff’s motion to strike defendant’s demand for a trial de novo, and this appeal by plaintiff ensued.

The order is affirmed (see B.Y., M.D., P.C. v Geico Indem. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50036[U] [App Term, 9th & 10th Jud Dists 2011]).

Tanenbaum, J.P., Molia and LaCava, JJ., concur. [*2]
Decision Date: April 06, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated November 18, 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 reversed, without costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiff’s claims based on the assignor’s failure to appear at two scheduled examinations under oath (EUOs). The District Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, holding that although defendant had established the timely mailing of the EUO scheduling letters and the nonappearance of the assignor at the EUOs, defendant had failed to show that the EUO was “based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination.” This appeal by defendant ensued.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted affidavits of its no-fault examiner and its mailroom supervisor. The affidavits sufficiently established that the EUO notices had been sent to plaintiff’s assignor in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the investigator who was to perform the EUOs, which established that the assignor had failed to appear therefor (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the 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, 50 AD3d at 1124).

The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant’s request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; 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]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

In light of the foregoing, the order is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment is denied.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 06, 2011