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 1, 2009, deemed from a judgment of the same court, entered August 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 1, 2009 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. Plaintiff’s appeal ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, the affidavit and peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the testing performed on plaintiff’s assignor. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the Civil Court properly granted defendant’s cross motion for summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is affirmed. [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010

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 defendant’s motion to vacate the notice of trial, sua sponte compelled plaintiff to respond to defendant’s discovery demands, implicitly denied the branch of plaintiff’s cross motion seeking a protective order, and denied plaintiff’s motion for summary judgment.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, compelled plaintiff to respond to defendant’s discovery demands is treated as an application for leave to appeal from that portion of the order,
and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order, insofar as appealed from, is affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served an answer which was accompanied by discovery demands. Although plaintiff had not responded to said demands, it filed a notice of trial and a certificate of readiness. A month thereafter, defendant moved to vacate the notice of trial on the ground that the certificate of readiness contained erroneous statements that discovery had been completed. Plaintiff cross-moved for, among other things, a protective order, and subsequently moved for summary judgment. The Civil Court granted defendant’s motion and, sua sponte, compelled plaintiff to respond to defendant’s discovery demands, thereby implicitly denying the branch of plaintiff’s cross motion seeking a protective order. The court also denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) was properly granted inasmuch as the certificate of readiness contained erroneous statements that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall [*2]Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

CPLR 3103 (a) empowers a court to issue a protective order “at any time.” The failure of a party to promptly move for a protective order after receipt of discovery demands, however, is more likely to be resolved against the movant who provided no objections and was tardy with the motion (see B.Y. M.D., P.C. v Lancer Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50493[U] [App Term, 9th & 10th Jud Dists 2010]; Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). The issuance of a protective order is within the broad discretion of the court and dilatory conduct can result in a court’s refusal to exercise its powers under CPLR 3103. Since plaintiff did not proffer a reasonable excuse for its delay in moving for a protective order, the Civil Court did not improvidently exercise its discretion when it denied the branch of plaintiff’s cross motion seeking such relief.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 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]).

Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit. Accordingly, the order is affirmed.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010

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 (Kathy J. King, J.), entered August 11, 2008. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition.

ORDERED that the order is reversed, without costs, defendant’s cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition is granted, plaintiff is directed to produce Dr. Collins for a deposition within 60 days of the date of the order entered hereon, or on such other date to which the parties shall agree, and plaintiff’s
motion for summary judgment is denied without prejudice to renewal upon the completion of Dr. Collins’ deposition.

In this action by a provider to recover assigned first-party no-fault benefits, defendant sought various forms of discovery. Plaintiff subsequently moved for summary judgment. Defendant opposed the motion and cross-moved to compel plaintiff to produce Dr. Ronald Collins, plaintiff’s owner, for a deposition. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. The instant appeal by defendant ensued.

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.

In opposition to plaintiff’s motion, and in support of its cross motion to compel discovery, defendant established that facts may exist which are essential to oppose plaintiff’s summary judgment motion but which could not then be stated (see CPLR 3212 [f]). Defendant indicated that it could not set forth sufficient facts to establish one of its defenses, to wit, plaintiff’s alleged fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s notice to produce Dr. Collins for a deposition. In addition, defendant established its entitlement to depose Dr. Collins (see CPLR 3101 [a]; RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sharma Med. Servs., P.C. v [*2]Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, plaintiff’s motion for summary judgment is denied without prejudice to renewal following the completion of Dr. Collins’ deposition, and defendant’s cross motion for an order compelling plaintiff to produce Dr. Collins for a deposition is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010

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 (Gary Franklin Knobel, J.), dated July 6, 2009. The order denied plaintiffs’ motion for summary judgment and held defendant’s cross motion for summary judgment dismissing the complaint in abeyance pending plaintiffs’ submission of an amended complaint.

ORDERED that the order is reversed, without costs, and plaintiffs’ motion and defendant’s cross motion are remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination
of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant defendant’s cross motion dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied plaintiffs’ motion on the ground that plaintiffs’ complaint was insufficient pursuant to CPLR 3013 and 3014. The court ordered plaintiffs to submit an amended complaint, and held defendant’s cross motion in abeyance pending such resubmission. The instant appeal by plaintiffs ensued.

Defendant’s proof was sufficient to raise a question of fact as to whether plaintiffs’ assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v [*2]American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order is reversed and plaintiffs’ motion and defendant’s cross motion are remitted to the District Court to be held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law.

We note that, while the claims of the five plaintiffs were pleaded under one cause of action in the complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010

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 (Noach Dear, J.), entered March 19, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the fifth cause of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing plaintiff’s fifth cause of action on the ground that the services rendered were not medically necessary. The Civil Court denied defendant’s motion, finding that plaintiff’s doctor’s affirmation raised a triable issue of fact. This appeal by defendant ensued.

The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; 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 executed by the doctor who had performed an independent medical examination (IME), as well as an affirmed IME report, establishing, prima facie, a lack of medical necessity for the services at issue (see Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]).

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Nihamin. In its reply papers, defendant objected to said affirmation on the ground that the affirmation failed to comply with CPLR 2106. Although the Civil Court found that defendant had failed to prove that Dr. Nihamin was plaintiff’s principal, the claim form submitted to defendant by plaintiff identified Dr. Nihamin as plaintiff’s principal. As a result, the submission of Dr. Nihamin’s affirmation was improper because Dr. Nihamin is a principal of plaintiff [*2]professional corporation, which is a party to the action (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]; see also Pisacreta v Minniti, 265 AD2d 540 [1999]). Since the Civil Court should not have considered any facts set forth, or exhibits referred to, in said affirmation (see Pisacreta, 265 AD2d 540), plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Even if Dr. Nihamin’s affirmation were considered, plaintiff nevertheless failed to raise an issue of fact as Dr. Nihamin did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s fifth cause of action is granted (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]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 08, 2010

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 April 21, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered upon the order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,156.98.

ORDERED that the judgment is reversed without costs, the order entered April 21, 2009 is vacated, 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 and defendant cross-moved for summary judgment dismissing the complaint. Defendant alleged that it had properly paid for most of the services at issue at a rate reduced pursuant to the workers’ compensation fee schedule and that it had denied reimbursement for the remainder of the services for lack of medical necessity based upon an independent medical examination (IME). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that defendant had failed to demonstrate that it had timely mailed its denial of claim forms. The instant appeal by defendant ensued. A judgment was subsequently entered, from which this appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the finding of the Civil Court, the affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment and in support of its cross motion sufficiently established that the denial of claim forms 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, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for [*2]acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive.

With respect to the remaining services, which were denied on the ground of lack of medical necessity, defendant, in support of its cross motion, annexed a report written by the acupuncturist who had performed an IME as well as the acupuncturist’s affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for the services performed after the examination took place. In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. The affidavit of the treating acupuncturist did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment is vacated, plaintiff’s motion is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 08, 2010

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 8, 2009. The order, insofar as appealed from, granted plaintiff’s motion for summary judgment as to the first three causes of action and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that so much of plaintiff’s motion as sought summary judgment as to the second and third causes of action and as to claims bearing codes 97810 and 97811 included in the first cause of action is denied, and so much of defendant’s cross motion as sought summary judgment dismissing the second, third, fourth and fifth causes of action as well as so much of the first cause of action as sought to recover for claims bearing codes 97810 and 97811 is granted; as so modified, the order, insofar as appealed from, is affirmed without costs and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees on the remaining award to plaintiff in the principal sum of $109.34.

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. Defendant alleged that it had properly paid for the services at issue in the first three causes of action at a rate reduced pursuant to the workers’ compensation fee schedule and that it had denied reimbursement for the services at issue in the fourth and fifth causes of action for lack of medical necessity based upon an independent medical examination (IME). The Civil Court granted plaintiff’s motion as to the first three causes of action only and denied defendant’s cross motion in its entirety, finding that the only issue for trial was the medical necessity of the services that are the subject of the fourth and fifth causes of action. The instant appeal by defendant ensued.

Plaintiff established its prima facie entitlement to summary judgment (see Insurance Law § 5106 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The [*2]burden then shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to plaintiff’s motion and in support of defendant’s cross motion was sufficient to establish that the denial of claim forms 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, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim in the sum of $109.34 for the initial acupuncture visit, which claim was included in plaintiff’s first cause of action (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As a result, plaintiff was entitled to summary judgment upon so much of the first cause of action as sought to recover the sum of $109.34.

For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Consequently, so much of plaintiff’s motion as sought summary judgment on the second and third causes of action as well as the remaining portion of the first cause of action should have been denied, and so much of defendant’s cross motion as sought summary judgment dismissing the second and third causes of action and the remaining portion of the first cause of action should have been granted, as these causes of action sought to recover upon claims that were paid pursuant to the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C., 26 Misc 3d 23; Great Wall Acupuncture, 16 Misc 3d 23).

With respect to the claims at issue in plaintiff’s fourth and fifth causes of action, which were denied on the ground of lack of medical necessity, defendant, in support of its cross motion, annexed a report written by the acupuncturist who had performed the IME, as well as the acupuncturist’s affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for the services performed after the examination took place. In opposition to defendant’s cross motion, plaintiff failed to raise a triable issue of fact. The affidavit of the treating acupuncturist did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, so much of defendant’s cross motion as sought to dismiss the fourth and fifth causes of action should have been granted (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]).

Accordingly, so much of plaintiff’s motion as sought summary judgment as to the second and third causes of action and as to claims bearing codes 97810 and 97811 included in the first cause of action is denied, so much of defendant’s cross motion as sought summary judgment dismissing the second, third, fourth and fifth causes of action as well as so much of the first cause of action as sought to recover for claims bearing codes 97810 and 97811 is granted, and the [*3]matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees on the remaining award to plaintiff in the principal sum of $109.34.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: November 08, 2010

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, First District (Fred J. Hirsh, J.), dated May 1, 2009, deemed from a judgment of the same court entered May 29, 2009 (see CPLR 5512). The judgment, entered pursuant to the May 1, 2009 order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $4,237.97.

ORDERED that the judgment is reversed without costs, so much of the order dated May 1, 2009 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. Defendant opposed the motion on the ground that the services at issue were not medically necessary and cross-moved for summary judgment dismissing the complaint. By order dated May 1, 2009, the District Court granted plaintiff’s motion and denied defendant’s cross motion. After judgment was entered, defendant appealed from the order. We deem the appeal to be from the judgment (see CPLR 5512).

Since defendant raises no issue as to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the District Court with respect thereto.

The affidavit submitted by defendant’s claims division employee established that the denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, was 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]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant preserved its defense of lack of medical necessity.

While the affirmed peer review report by defendant’s doctor set forth a factual basis and medical rationale for the doctor’s opinion that the services provided were not medically necessary (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]), plaintiff proffered an affidavit in admissible form from its owner, a chiropractor, which meaningfully referred to defendant’s peer review [*2]report and sufficiently rebutted the conclusions set forth therein. Consequently, a triable issue of fact as to medical necessity has been shown to exist.

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.Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010

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 2, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,446.67.

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, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath
(EUOs). 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 be taken (see CPLR 5501 [c]).

Defendant submitted an affirmation of an associate of the law firm retained by defendant to conduct the EUOs. The affirmation set forth facts sufficient to establish that plaintiff’s assignor had failed to appear at the affirmant’s law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since appearance at an EUO is a condition precedent to an insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; [*2]Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered June 26, 2008. 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, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Plaintiff opposed the motion. The Civil Court granted the motion, finding that plaintiff had failed to establish the existence of a triable issue of fact. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing that it had timely denied the claims on the ground of lack of medical necessity (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and by submitting an affirmed peer review report from its doctor setting forth a factual basis and medical rationale for his conclusion that the services rendered were not medically necessary (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. [*2]Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff contends that defendant failed to establish its prima facie entitlement to summary judgment since, although defendant’s peer review doctor listed the medical reports and/or records of third parties that he had reviewed in reaching his
conclusion that the services rendered were not medically necessary, defendant failed to annex to its moving papers copies of these documents. We reject this contention since these reports and records are not part of defendant’s prima facie showing. We note that, pursuant to CPLR 3212 (f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if “facts essential to justify opposition may exist but cannot then be stated.” However, plaintiff failed to “put forth some evidentiary basis to suggest that discovery might lead to relevant evidence” (Trombetta v Cathone, 59 AD3d 526, 527 [2009]; see Canarick v Cicarelli, 46 AD3d 587 [2007]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2007]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614 [1999]), and the “mere hope” that discovery will uncover the existence of a material issue of fact is insufficient to delay a summary judgment determination (Giraldo v Morrisey, 63 AD3d 784, 785 [2009]). Inasmuch as plaintiff failed to rebut defendant’s prima facie showing of its entitlement to summary judgment, defendant’s motion was properly granted. Accordingly, the order is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 20, 2010