Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))

Reported in New York Official Reports at Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))

Quest Supply, Inc. v Praetorian Ins. Co. (2021 NY Slip Op 50437(U))

Reported in New York Official Reports at Quest Supply, Inc. v Praetorian Ins. Co. (2021 NY Slip Op 50437(U))

Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2021 NY Slip Op 50436(U))

Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2021 NY Slip Op 50436(U))

BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))

Reported in New York Official Reports at BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))

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

Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

Reported in New York Official Reports at Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))

Reported in New York Official Reports at JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))

[*1]

JFL Med. Care, P.C. v ELRAC, Inc.

2021 NY Slip Op 50434(U) [71 Misc 3d 136(A)]

Decided on May 14, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-319 K C

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Scahill Law Group, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 10, 2019. 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling the 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 had 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 Metro Pain Specialist, P.C. v ELRAC, Inc., 69 Misc 3d 140[A], 2020 NY Slip Op 51341[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], [*2]2015 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). 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 motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))

Reported in New York Official Reports at Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))

[*1]

Greenway Med. Supply Corp. v Dollar Rent A Car

2021 NY Slip Op 50439(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-387 K C

Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa of counsel), for appellant. The Rybak Firm, PLLC (Richard Rozhik of counsel), for respondent (no brief filed).

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 denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, 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 appeals from an order of the Civil Court denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted an affidavit from its third-party claims examiner which was sufficient to establish, prima facie, defendant’s lack of coverage defense (see New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent the claims examiner’s affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309 (c) and Real Property Law § 299-a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d [*2]134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the present case, plaintiff failed to make any showing of prejudice. In opposition to defendant’s prima facie showing, plaintiff failed to demonstrate the existence of a triable issue of fact.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

Reported in New York Official Reports at Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

[*1]

Longevity Med. Supply, Inc. v MVAIC

2021 NY Slip Op 50440(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-451 K C

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin 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 5, 2019. 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 denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action; 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 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action, the affidavit of defendant’s claims representative established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms denying the claims set forth within those causes of action on the ground that they had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for plaintiff’s failure to give timely notice was provided (see id.). As defendant established its prima facie entitlement to judgment as a matter of law upon those causes of action (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that those claim forms had been timely mailed to defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff timely submitted the claims which are the subject of the second through fifth causes of action.

With respect to the first cause of action, contrary to plaintiff’s sole argument to defeat that branch of defendant’s motion, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50149[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As to the sixth cause of action, plaintiff’s contention that the affidavit it submitted was sufficient to raise a triable issue of fact lacks merit.

Accordingly, the order is modified by denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))

Reported in New York Official Reports at Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))

[*1]

Excel Prods., Inc. v Farmington Cas. Co.

2021 NY Slip Op 50441(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-498 K C

Law Offices of Tina Newsome-Lee (Erika E.E. Treco 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 (Michael Gerstein, J.), dated December 10, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant’s remaining contentions regarding its motion for summary judgment are improperly raised for the first time on appeal and we decline to consider [*2]them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claims 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 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 plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U))

Reported in New York Official Reports at First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U))

[*1]

First Am. Alliance, Inc. v MVAIC

2021 NY Slip Op 50447(U) [71 Misc 3d 138(A)]

Decided on May 14, 2021

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-836 K C

Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. Marshall & Marshall, PLLC (Frank D’Esposito of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered March 25, 2019. The order granted 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 denied.

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 a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to MVAIC’s contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff’s assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As a result, MVAIC’s motion seeking summary judgment dismissing the complaint should have been denied as MVAIC failed to establish that it is not precluded from interposing its defense of lack of medical necessity (see Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021