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 (Dawn Marie Jimenez, J.), entered July 11, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s supervisor of medical billing in support of the motion 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]). In addition, as the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish actual mailing of the denial of claim forms or its standard office practice and procedure for the mailing of denial of claim forms during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (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]). Accordingly, as defendant was precluded from interposing its
defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court properly granted plaintiff’s motion for summary judgment. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

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 (Rudolph E. Greco, Jr., J.), entered June 25, 2008, deemed from a judgment of the same court entered July 30, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 25, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,791.73.

ORDERED that the judgment is affirmed without costs.

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. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention on appeal, the affirmations submitted by plaintiff’s president, a physician, in support of the motion were sufficient to comply with 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]).

On appeal, defendant characterizes its defense as one based upon fraud and relies solely on A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (3 Misc 3d 130[A], 2004 NY Slip Op 50575[U] [App Term, 9th & 10th Jud Dists 2004]), in which the Appellate Term for the Ninth and Tenth Judicial Districts held that the insurer “establish[ed] the existence of a triable issue of fact as to whether there was a lack of coverage because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).” In the case at bar, defendant has not alleged that no motor vehicle accident occurred or [*2]that the accident was staged. Rather, defendant contends that it raised a triable issue as to whether the assignor’s daughter was in the car at the time of the accident. However, contrary to defendant’s contention, the assignor’s alleged misrepresentation of the presence of her daughter in the car is irrelevant to the question of whether the assignor’s injuries arose from an insured incident. Accordingly, as defendant failed to demonstrate the existence of a triable issue of fact in opposition to plaintiff’s motion for summary judgment, the judgment is affirmed.Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 01, 2009

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 (Robert A. Bruno, J.), entered July 7, 2008, deemed an appeal from an amended order of the same court entered October 29, 2008 (see CPLR 5520 [c]). The amended order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the amended order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the amended order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing, inter alia, that there was a lack of coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise out of an insured incident. The District Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint, on the ground that defendant had shown that “[t]his has all the indicia of a staged accident.'” The instant appeal by plaintiff ensued.

Since defendant raised no issue in the District Court with regard to plaintiff’s establishment of a prima facie case, we do not pass upon the propriety of the District Court’s implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2009

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 May 28, 2008. The order granted defendant’s motion for leave to reargue and, upon reargument, 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 leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 2009

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, Queens County (Leslie J. Purificacion, J.), entered May 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,718.40.

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with 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 acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested,
$1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2009

[*1]

Supreme Court, Appellate Term, Second Department, November 17, 2009

APPEARANCES OF COUNSEL

Law Offices of Eva Gaspari, PLLC, Brooklyn, and Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**26 Misc 3d at 24} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant had partially paid plaintiff’s claim prior to the commencement of the action. At trial, the parties stipulated to plaintiff’s prima facie case and further agreed that defendant had timely denied the unpaid portion of the claim on the ground that the charges for acupuncture treatments exceeded the maximum fees under the appropriate fee schedule. Additionally, pursuant to the parties’ stipulation, the claim form and the denial of claim form were admitted into evidence. After a nonjury trial on the issue of the propriety of the fees charged, the Civil Court granted judgment to defendant dismissing the complaint, and this appeal by plaintiff ensued.

A person who seeks to practice acupuncture must be either licensed (Education Law § 8214) or certified (Education Law § 8216) to do so (see Education Law § 8212). The training to obtain a license remains the same even if the person seeking to practice acupuncture has a license in a different profession, such as a chiropractic license (see 8 NYCRR 52.16 [b]; cf. 8 NYCRR 52.16 [a]). Indeed, at trial, plaintiff’s witness, who was both a licensed acupuncturist and a licensed chiropractor, so testified. Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services (see Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]; see also AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Ops Gen Counsel NY Ins Dept No. 04-10-03 [Oct. 2004] [http://www.ins.state.ny.us/ogco2004/rg041003.htm (accessed Nov. 25, 2009)]). Consequently, [*2]since it is undisputed that the instant defendant reimbursed{**26 Misc 3d at 25} plaintiff pursuant to the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement. Accordingly, the judgment dismissing the complaint is affirmed.

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

—[*1] Wollerstein & Futoran (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant.

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, dated July 10, 2008, which affirmed an order of the Civil Court of the City of New York, Kings County (Chan J.), dated March 8, 2007, which granted the plaintiff’s motion for summary judgment on the complaint in the principal sum of $2,028.50 and denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order dated July 10, 2008 is reversed, on the facts and in the exercise of discretion, with costs, the order of the Civil Court of the City of New York, Kings County, is reversed, the plaintiff’s motion for summary judgment on the complaint is denied, and the defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to commencement of a new action.

On November 15, 2000 Jermaine Thomson was injured in an automobile accident. At the time of the accident, the defendant Eveready Ins. Co. was Thomson’s no-fault insurance carrier. As a result of the accident, the plaintiff Infinity Health Products, Ltd., provided medical supplies to Thomson. On March 14, 2001 the plaintiff, as assignee of Thomson, submitted to the defendant a claim for payment for the medical supplies.

Seven days later, on March 21, 2001, the defendant sent a letter to the plaintiff acknowledging receipt of the bills and advising that it could not process the request until it received further verification of the claim. The plaintiff did not respond to this verification request. On April 17, 2001, 27 days after the first verification request was sent, the defendant sent a second verification request to the plaintiff. The plaintiff also did not respond to the second verification request.

In February 2005, the plaintiff commenced this action in the Civil Court of the City of New York, Kings County, inter alia, to recover the sum of $2,028.50, the cost of the medical [*2]supplies it provided to Thomson. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that the defendant failed to pay or deny the claim within 30 days as required by 11 NYCRR former 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). The defendant cross-moved for summary judgment dismissing the complaint, asserting, inter alia, that the action was “not ripe[ ] pending verification requests.”

The Civil Court granted the plaintiff’s motion and denied the defendant’s cross motion, holding that the defendant failed to precisely comply with regulations promulgated by the Superintendent of Insurance (hereinafter the Insurance regulations) because it did not wait a full 30 days (after the plaintiff failed to respond to the first verification request) before sending out a second verification request. The defendant appealed to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts, which affirmed the order in a 2-1 decision. The Appellate Term majority concluded, among other things, that the defendant’s follow-up verification demand, which was mailed 27 days after its initial demand, was “premature and without effect.”

Pursuant to Insurance Law § 5106 (a) and the Insurance regulations, an insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]; see also 11 NYCRR 65-3.5) An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim (see 11 NYCRR former 65.15 [d] [2]).

There is no dispute here that the defendant timely requested initial verification by sending out its verification request within seven days (on Mar. 21, 2001) after receipt of the plaintiff’s claim (on Mar. 14, 2001). There also is no dispute that the plaintiff did not respond to the defendant’s timely initial verification request. An insurer does not have to pay or deny a claim until it has received verification of all of the relevant information requested (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]). The issue in this case is whether an insurer loses the toll of the 30-day rule to pay or deny the claim, which is afforded by an initial timely request for verification, simply because its follow-up verification request is sent 3 days before the expiration of a full 30 days after a plaintiff fails to respond to the initial request. The Insurance regulations stated, in pertinent part, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested” (11 NYCRR former 65.15 [e] [2]).

Although the defendant in this case did not strictly comply with the time limitation set forth in the rule regarding the submission of a second verification request, under the circumstances of this case, the plaintiff is estopped from claiming that the defendant is precluded from asserting any defense to the claim. It would be inequitable to award summary judgment to the plaintiff, which ignored two verification requests, merely because the defendant, slightly prematurely, sent its second verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent (see New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; see generally Chemical Bank v City of Jamestown, 122 AD2d 530 [1986]; Guberman v William Penn Life Ins. Co. of N.Y., 146 AD2d 8 [1989]). Indeed, in light of the particular factual circumstances herein, it would be incongruous to conclude that the Insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests. Such a result is not contemplated by the “no-fault law” or its regulations, which should be interpreted to promote the expeditious handling of verification requests and prompt claim resolution.

Furthermore, inasmuch as the plaintiff did not respond to either of the verification requests, the 30-day period within which the defendant was required to pay or deny the claim did not commence to run (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Thus, the plaintiff’s action is premature (see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Hospital for Joint [*3]Diseases v ELRAC, Inc., 11 AD3d 432 [2004]).

Accordingly, the plaintiff was not entitled to summary judgment on the complaint, and the defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d at 553; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), without prejudice to commencement of a new action. Mastro, J.P., Santucci, Chambers and Lott, 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 September 29, 2008, deemed from a judgment of the same court entered November 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 29, 2008 order which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $168.50.

ORDERED that the judgment is reversed without costs, the order entered September 29, 2008 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 that the services rendered to plaintiff’s assignor were not medically necessary. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion, finding that defendant had failed to show that it had timely denied plaintiff’s claims, and granted plaintiff’s cross motion for summary judgment. Defendant appeals from the order. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to the finding of the Civil Court, defendant demonstrated, based upon its standard office practice and procedure used to ensure that claim denial forms are properly addressed and mailed, that it timely mailed the denial of claim forms at issue (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; AJS Chiropractic, P.C. v Mercury Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50208[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, the report of the independent chiropractic/acupuncture examination performed on plaintiff’s assignor, accompanied by the examiner’s affidavit, was in admissible form, and provided a factual basis and medical rationale for defendant’s chiropractor’s opinion that the services at issue were not medically necessary (see AJS Chiropractic, P.C., 22 [*2]Misc 3d 133[A], 2009 NY Slip Op 50208[U]; Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]).

Since the affidavit of plaintiff’s chiropractor, which did not meaningfully refer to or discuss the conclusion of defendant’s chiropractor, was insufficient to rebut defendant’s prima facie showing (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]), defendant’s motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U]; 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 13, 2009

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 (Rhonda E. Fischer, J.), entered September 8, 2008. The order, upon a motion by plaintiff for summary judgment, dismissed the complaint and referred the matter to the Workers’ Compensation Board.

ORDERED that the order is reversed without costs, the complaint is reinstated and plaintiff’s motion is 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 plaintiff fails 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 plaintiff’s motion and grant summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

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 it had timely denied plaintiff’s claim based upon the assignor’s eligibility for workers’ compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers’ Compensation Board. This appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the Workers’ Compensation Board has the authority to determine whether plaintiff’s assignor is entitled to Workers’ Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the [*2]matter to the Workers’ Compensation Board but, rather, should have held plaintiff’s motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff’s motion 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.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: November 05, 2009

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.), dated August 14, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The Civil Court denied defendant’s motion. The instant appeal by defendant ensued.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims representative established that the denial of claim forms, which denied the subject claims on the ground of lack of medical necessity based upon two peer review reports, were timely mailed in accordance with defendant’s standard office practice or procedure used to ensure that the denials were properly addressed and mailed (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]).

In support of defendant’s motion for summary judgment dismissing the complaint, defendant annexed an affirmed peer review report by a doctor as well as an affidavit executed by the chiropractor who performed the second peer review. Since the foregoing documents set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud [*2]Dists 2009]; 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]). As plaintiff failed to submit any evidence to rebut defendant’s showing of a lack of medical necessity and as plaintiff’s objections to defendant’s papers lack merit, defendant’s motion should have been granted (see e.g. Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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]; see also 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]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

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

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 05, 2009