Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered June 15, 2018. The order denied defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

After issue was joined in this action by a provider to recover assigned first-party no-fault benefits arising from an accident that occurred on October 19, 2011, defendant defaulted in appearing for a scheduled court date. Defendant moved to, in effect, open its default and dismiss the complaint on the ground that, by amended order and judgment dated August 1, 2016, the Supreme Court, Bronx County, had declared, insofar as is relevant here, that defendant has no obligation to pay plaintiff for claims arising out of the accident underlying this claim. Defendant appeals from an order of the Civil Court entered June 15, 2018 denying defendant’s motion to, in effect, open its default and, upon opening the default, dismiss the complaint.

In our view, the Civil Court improvidently exercised its discretion in denying defendant’s motion when this action is barred by the August 1, 2016 order and judgment of the Supreme Court (cf. e.g. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Under the circumstances, defendant’s motion should have been granted “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Accordingly, the order entered June 15, 2018 is reversed and defendant’s motion to, in effect, open its default in appearing for a calendar call and, upon opening the default, dismiss the complaint is granted.

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

Hollander Legal Group , P.C. (Allan S. Hollander 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 (Richard J. Montelione, J.), entered November 13, 2018. The order, insofar as appealed from and as limited by the brief, 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered November 13, 2018 as denied defendant’s motion.

We find that defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]), and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2011]). Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C., 35 AD3d at 721; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, although the first EUO scheduling letter was mailed to the assignor before defendant received plaintiff’s first claim form, the scheduling letter was not a nullity (id.).

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

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

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 9, 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 defendant’s 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 which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Although defendant’s claim specialist referred to an affidavit annexed as exhibit K, which presumably discussed the payment log, an affidavit was not attached to the papers received by the court. Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.

Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. [*2]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]).

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

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

The Rybak Firm, PLLC (Oleg Rybak and Karina Barska of counsel), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 March 15, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to dismiss 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, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. In an order entered March 15, 2019, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion.

Initially, it is noted that defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) was made after issue had been joined. Generally, such a motion must be made “before service of the responsive pleading is required” (CPLR 3211 [a]), although “[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR 3211 [c]). Here, no such notice appears in the record; however, plaintiff does not raise the untimeliness of defendant’s motion, and, in any event, the specific issue raised regarding the lack of personal jurisdiction is purely a legal one, and notice is therefore not required (see generally Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

When service of the summons in a Civil Court action is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an [*2]acknowledgment of receipt of the summons and complaint, as provided for in CPLR 312-a (see CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

We note that we do not consider any materials which are dehors the record on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]), nor do we consider any arguments that are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

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

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

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellants and defendants. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeals from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 18, 2018. The order, insofar as appealed from by defendant Omni Indemnity Company and insofar as separately appealed from by defendants American Independent Ins. Co., American Independent Insurance Companies, Inc., and Good2go Auto Insurance, denied defendants’ motion to dismiss the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for the purposes of disposition; and it is further,

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs on each appeal, and defendants’ motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff’s papers do not contain an acknowledgment of service. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. In an order entered September 18, 2018, insofar as appealed from, the Civil Court denied defendants’ motion.

When service of the summons in the Civil Court is other than by personal delivery, service is complete upon the filing of proof of service (see CCA 410 [b]), and, with respect to a purported service by mailing pursuant to CPLR 312-a, proof of service involves an acknowledgment of receipt of the summons and complaint as provided for in CPLR 312-a (see [*2]CPLR 306 [d]; see generally Domny Med. Servs., P.C. v First Acceptance Ins. Co. Inc., 66 Misc 3d 129[A], 2019 NY Slip Op 52048[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v Kemper Ins. Co., 63 Misc 3d 163[A], 2019 NY Slip Op 50923[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record fails to demonstrate that a signed acknowledgment of receipt was returned to plaintiff (see CPLR 312-a [d]), or that service was otherwise completed within 120 days of the filing of the summons and complaint (see CCA 411). Thus, plaintiff failed to acquire personal jurisdiction over defendants (see CPLR 312-a [b]; Krasa v Dial 7 Car & Limousine Serv., Inc., 147 AD3d 744, 745 [2017]; Castillo v JFK Medport. Inc., 116 AD3d 899, 900 [2014]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]; Bennett v Acosta, 68 AD3d 910, 911 [2009]; Horseman Antiques, Inc. v Huch, 50 AD3d 963, 964 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendants’ motion to dismiss the complaint is granted.

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

Decided on August 28, 2020

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered October 11, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and the claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, 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, defendant 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 a portion of one claim was submitted more than 45 days after the subject services had been rendered, and that the amounts plaintiff sought to recover upon the remaining claims exceeded the amount permitted by the workers’ compensation fee schedule. In opposition to defendant’s motion, plaintiff only submitted an affirmation from plaintiff’s counsel. By order entered October 11, 2018, the Civil Court denied defendant’s motion.

In support of its motion, defendant submitted an affidavit which sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). To the extent plaintiff’s counsel argued that the IME scheduling letters had been mailed to the wrong address, the record demonstrates conclusively that the address to which the IME scheduling letters had been mailed matched the one provided by plaintiff’s assignor on the assignor’s handwritten, sworn application for no-fault benefits (NF-2) which was submitted to defendant. Consequently, defendant established that the address to which the IME scheduling letters were mailed was proper (see Valdan Acupuncture, [*2]P.C. v 21st Century Advantage Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50822[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant also established that the 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). As defendant’s motion further established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim for services rendered on April 19, 2016 on that ground, and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on April 19, 2016.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015, the affidavit of defendant’s claims adjuster established that the claim for services rendered on December 28, 2015 had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim form, which denied the claim on that ground. Furthermore, defendant’s denial of claim form advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (11 NYCRR 65-2.4 [c]). As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered on December 28, 2015 should have been granted.

With respect to the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the unpaid portion of plaintiff’s claims which were denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant established that it had fully paid plaintiff for the services billed under CPT codes 97810, 97811, 99202, and 99212 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Likewise, defendant demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97026, except for the services rendered on December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see id.). Thus, defendant established its prima facie entitlement to summary judgment upon the unpaid portion of those claims. As plaintiff failed to raise a triable issue of fact, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of those claims should have been granted. However, as defendant concedes that the affidavit of its professional fee schedule coder stated that plaintiff was entitled to recover upon claims seeking payment for services billed using CPT 90739, defendant is not entitled to summary judgment with respect to those claims.

Accordingly, the order is modified by providing that the branches of defendant’s motion [*3]seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for dates of service December 28, 2015 and April 19, 2016, and so much of the unpaid portion of the claims billed using CPT codes 97810, 97811, 99202, and 99212, and claims billed using CPT code 97026, except for dates of service December 11, 2015, March 1, 2016, March 17, 2016 and March 28, 2016, are granted.

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

Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant. Gary Tsirelman, P.C. (Devon Riley Christian 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 October 26, 2018. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 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 so much of the complaint as sought to recover the sum of $1,150, on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In support of the motion, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule the pre-claim IMEs, which affidavit sufficiently demonstrated that the scheduling letters had been properly mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant proffered affidavits from the chiropractors who were to perform chiropractic and acupuncture IMEs, which sufficiently established that plaintiff’s assignor had failed to appear for those duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claim representative demonstrated that the denial of claim form, which denied the claim seeking to recover the sum of $1,150 based on the assignor’s nonappearance at the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

In opposition, the affirmation of plaintiff’s counsel failed to demonstrate the existence of a triable issue of fact, since no issue was raised with respect to the scheduling letters mailed directly to plaintiff’s assignor (see generally MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2014]). Plaintiff’s remaining contention regarding defendant’s proof that the assignor had failed to appear for the IMEs lacks merit.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover the sum of $1,150 is granted.

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

Decided on August 28, 2020

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

Decided on August 28, 2020

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