Decided on November 13, 2020

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

Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb and Selina Chin 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 1, 2018. 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 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 moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). In an order entered August 1, 2018, the Civil Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim form, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).

Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that defendant’s EUO requests were unreasonable. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.

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

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Picciano & Scahill, P.C. (Matthew Sledzinski of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 26, 2018. The judgment, entered pursuant to an order of that court entered May 10, 2016 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 10, 2016 as granted defendant’s motion seeking to dismiss the complaint is vacated and defendant’s motion is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, on April 10, 2015, the parties entered into a stipulation in which plaintiff agreed to serve verified responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days. In July 2015, defendant moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide the agreed-upon discovery. By order entered May 10, 2016, the Civil Court granted defendant’s motion. A judgment dismissing the complaint was entered on April 26, 2018.

Although a court may strike the “pleadings or parts thereof” (CPLR 3126 [3]) as a sanction against a party who “refuses to obey an order for disclosure or wilfully fails to disclose [*2]information which the court finds ought to have been disclosed [upon notice]” (CPLR 3126 [3]), “the drastic remedy of striking [a pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith” (Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 726-727 [2008] [internal quotation marks and citation omitted]; accord Laskin v Friedman, 90 AD3d 617, 617-618 [2011]; see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]). Here, defendant could not show that plaintiff had failed to comply with a court order, as no such order had ever been entered, and defendant further did not make a clear showing that the alleged failure of plaintiff to comply with defendant’s discovery demands and the parties’ stipulation was willful, contumacious or in bad faith. As a result, the Civil Court improvidently exercised its discretion in granting defendant’s motion to strike plaintiff’s complaint (see Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 35 Misc 3d 147[A], 2012 NY Slip Op 51064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is reversed, so much of the order entered May 10, 2016 as granted defendant’s motion seeking to dismiss the complaint is vacated and defendant’s motion is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of this decision and order.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Goldberg, Miller & Rubin, P.C. (Matthew Lavoie and Timothy Bishop 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 (Odessa Kennedy, J.), entered September 12, 2018, deemed from a judgment of that court entered October 11, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 12, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,900.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion 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 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). A judgment was subsequently entered on October 11, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been [*2]timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were 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]).

However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).

Defendant’s remaining contention lack merit.

Accordingly, the judgment is reversed, so much of the order entered September 12, 2018 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered August 24, 2018. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

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. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered August 24, 2018 as denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814, and granted the branch of plaintiff’s motion seeking summary judgment [*2]upon those claims with respect to assignor Noemi Oyala.

The branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 was based upon the defense that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The record establishes that defendant demonstrated that it had fully paid plaintiff in accordance with the workers’ compensation fee schedule for the services billed under CPT codes 97813 and 97814 for acupuncture services that plaintiff had rendered after April 1, 2013. As a result, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 should have been granted (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]; Jing Luo Acupuncture, P.C. v NY City Tr.Auth., 60 Misc 3d 136[A], 2018 NY Slip Op 51083[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims using CPT codes 97813 and 97814 is granted, and the branch of plaintiff’s motion seeking summary judgment upon those claims with respect to assignor Noemi Oyala is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Decided on November 13, 2020

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

Decided on November 6, 2020

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 5, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions, with respect to the branch of defendant’s motion seeking summary judgment dismissing the third through fifth causes of action, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Thus, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage with respect to the third though fifth causes of action (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). In addition, defendant demonstrated its prima facie entitlement to [*2]judgment dismissing the first cause of action on the ground that the automobile insurance policy in question had a $200 personal injury protection deductible. As plaintiff failed to raise a triable issue of fact in opposition to these branches of defendant’s motion, we find no basis to disturb the Civil Court’s determination that defendant was entitled to summary judgment upon the first and third through fifth causes of action.

With respect to the second cause of action, defendant failed to establish, as a matter of law, 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]), because, among other things, defendant attempted to rely on certain documents which were attached to defendant’s motion papers without authentication, foundation or even discussion (see Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). However, contrary to plaintiff’s contention, an issue of fact exists as to whether plaintiff is entitled to recover any additional reimbursement with respect to these services; therefore, the branch of plaintiff’s cross motion seeking summary judgment upon the second cause of action was properly denied.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

Decided on November 6, 2020

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

Decided on November 6, 2020

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