Decided on May 14, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on May 14, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Gary Tsirelman, P.C. (Darya Klein of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 8, 2019. The order, insofar as appealed from and as limited by the brief, granted plaintiff’s motion to compel discovery, denied defendant’s cross motion for summary judgment dismissing the complaint, and made implicit CPLR 3212 (g) findings in plaintiff’s favor.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims seeking to recover the sums of $325.99, $93.14, $46.57, and $46.57 are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved to compel discovery. Defendant cross-moved for summary judgment dismissing the complaint on the grounds that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), that defendant had never received one of the claims at issue, and that the unpaid portion of the $380.73 claim for services rendered for June 1, 2016 through June 13, 2016 exceeded the amount permitted by the workers’ compensation fee schedule. By order entered February 8, 2019, the Civil Court, insofar as is relevant to this appeal, granted plaintiff’s motion to compel discovery, and denied defendant’s cross motion, but found, in effect pursuant to CPLR 3212 (g), that plaintiff and defendant had established timely mailing of the claim forms and the denial of claim forms.

In support of its cross motion, defendant submitted an affidavit by a supervisor employed by Omnimed Evaluation Services, which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for the sums of $93.14, $46.57, and $46.57 on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs should have been granted.

The affidavit of defendant’s claims representative established that defendant had never received the claim seeking to recover the sum of $325.99 from plaintiff. As plaintiff never established that the claim was mailed to defendant, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim should have been granted (see Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Contrary to defendant’s contention, defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon the unpaid portion of the $380.73 claim for services rendered June 1, 2016 through June 13, 2016 because defendant failed to conclusively establish its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Indeed, “the fee schedule does not, in and of itself, establish that defendant properly utilized the codes set forth within the workers’ compensation fee schedule to calculate the amount which plaintiff was entitled to recover for each service rendered (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009])” (Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

As defendant did not oppose plaintiff’s motion to compel discovery, to the extent that the order compels defendant to respond to plaintiff’s discovery demands pertaining to the unpaid portion of the $380.73 claim for services rendered June 1, 2016 through June 13, 2016, there is no basis to disturb that portion of the order.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims seeking to recover the sums of $325.99, $93.14, $46.57, and $46.57 are granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Law Office of Tina Newsome-Lee (William Kleen of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered February 25, 2019. The order, insofar as appealed from, denied defendant’s motion to vacate a notice of trial and certificate of readiness.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant’s answer, served in February 2018, was accompanied by a demand for written interrogatories. Six days after defendant’s discovery demand was served, plaintiff served a notice of trial and certificate of readiness. Defendant then moved, in February 2018, to vacate same, asserting that, contrary to plaintiff’s representation, discovery was not complete. By order entered February 25, 2019, insofar as appealed from, the Civil Court denied defendant’s motion.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.17 [c]) should have been granted since it was based upon a certificate of readiness which contained the erroneous statement that discovery was complete or that it had been waived (see Savino v Lewittes, 160 AD2d 176 [1990]; Fu-Qi Acupuncture, P.C. v Travelers Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that plaintiff had not served responses to defendant’s demand for written [*2]interrogatories despite being served with a demand for same, the notice of trial and certificate of readiness should have been vacated (see Fu-Qi Acupuncture, P.C., 62 Misc 3d 150[A], 2019 NY Slip Op 50273[U]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to vacate the notice of trial and certificate of readiness is granted.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 28, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

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

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) were properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff’s assignor failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Mintzer, Sarowitz, Zeris, Ledva and Meyers, LLP (Kate M. Cifarelli of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 25, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

The affidavit of defendant’s personal injury protection unit supervisor established prima facie that defendant had never received the claim in question from plaintiff. However, the affidavit of plaintiff’s billing clerk, submitted in opposition to defendant’s motion, was sufficient to give rise to a presumption that the subject claim form had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), raising a triable issue of fact as to whether defendant had received the claim form. Contrary to defendant’s argument, it did not demonstrate, as a matter of law, that the address to which plaintiff mailed the claim form was not defendant’s address, and, as a result, defendant’s motion for summary judgment dismissing the complaint was properly denied (cf. Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

Decided on May 14, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on May 14, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on May 14, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew A. Sarles of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered August 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the grounds that defendant had previously paid four of the claims involved in this action and that the remaining six claims were denied because plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit of defendant’s claims manager established that defendant had previously paid four of the claims sought to be recovered in the complaint. In opposition, plaintiff did not oppose the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those four claims and, on appeal, plaintiff concedes that the branch of defendant’s motion seeking summary judgment dismissing those claims should be granted.

As to the remaining six claims, the affidavit submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office [*2]practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (see id.) and, since she was present in her office to conduct the EUO of plaintiff on the scheduled dates, that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon the branch of defendant’s motion seeking summary judgment dismissing those six claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Big Apple Med. Supply, Inc. v Titan & Nationwide, 66 Misc 3d 131[A], 2019 NY Slip Op 52067[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion.

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

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.