Goldberg Miller & Rubin (Ruth Nazarian and Harlan Schreiber of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered September 19, 2017, deemed from a judgment of that court entered December 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 19, 2017 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,800.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated 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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. By order entered September 19, 2017, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment was subsequently entered on December 1, 2017, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly found that defendant’s moving papers failed to establish, as a matter of law, that the first IME scheduling letter sent to plaintiff’s assignor had been timely, as the record indicates that it was mailed more than 30 days after defendant had received the claims at issue (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]). Consequently, as defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition [*2]precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated and plaintiff’s cross motion for summary judgment is denied.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Karen L. Lawrence (Cheryl Scher 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 August 3, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

Plaintiff commenced this action in the Civil Court on October 14, 2015 to recover assigned first-party no-fault benefits for services provided to its assignor, who was allegedly injured in an accident on October 24, 2011. Prior to the commencement of this action, defendant had brought a declaratory judgment action in the Supreme Court, Kings County, against plaintiff and its assignor herein, among other parties, pertaining to the October 24, 2011 accident. Thereafter, defendant moved in the Supreme Court for summary judgment, and, in an order entered April 28, 2014, the Supreme Court stated that defendant’s “motion for summary judgment for a declaration of a staged accident and that plaintiff is not liable in any respect for damages arising out of the accident is hereby granted in all respects on default” as to the present plaintiff and assignor, among other parties. Relying upon the Supreme Court’s order, defendant moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of res judicata. Defendant annexed a copy of the Supreme Court’s order, pleadings and motion papers. Plaintiff appeals from an order of the Civil Court entered August 3, 2017 which granted defendant’s motion.

We note that defendant failed to include res judicata as an affirmative defense in its answer, or to move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer. Defendant instead moved for summary judgment based on res judicata and also sought “such other and further relief as [the Civil Court] may deem just and proper.” As plaintiff, in opposition to defendant’s motion, failed to allege any prejudice (see Barrett v Kasco [*2]Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]) or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) resulting from defendant’s seeking summary judgment based on that unpleaded affirmative defense, we deem defendant’s answer amended to include the affirmative defense of res judicata (see Barrett, 84 AD2d at 556; Metro Health Prods., Inc. v Nationwide Ins., 52 Misc 3d 138[A], 2016 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In light of the order in the declaratory judgment action, the present action is barred under the doctrine of res judicata (see Island Life Chiropractic, P.C. v Unitrin Auto & Home Ins. Co., 52 Misc 3d 137[U], 2016 NY Slip Op 51076[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court’s order (see Schuylkill Fuel Corp., 250 NY 304, 306-307; SZ Med., P.C., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).

Accordingly, the order is affirmed.

Goldberg Miller & Rubin (Joshua C. Shack of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered May 11, 2017, deemed from a judgment of that court entered September 1, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 11, 2017 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 $1,595.38.

ORDERED that the judgment is reversed, without costs, so much of the May 11, 2017 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). By order entered May 11, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. A judgment awarding plaintiff the principal sum of $1,595.38 was entered on September 1, 2017. Defendant’s appeal from the May 11, 2017 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

Defendant correctly argues that plaintiff’s motion for summary judgment should have been denied, as the proof submitted by plaintiff failed to establish, as a matter of law, 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]). However, [*2]since defendant failed to establish that its follow-up IME scheduling letter was timely (see 11 NYCRR 65-3.6 [b]), its cross motion for summary judgment dismissing the complaint was properly denied. Defendant’s contention regarding the applicability of 11 NYCRR 65-3.5 (p) is improperly raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the judgment is reversed, so much of the May 11, 2017 order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) for the purposes of disposition of the motion and, upon consolidation, 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, defendant moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15)for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court [*2]entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

For the reasons stated in EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (__ Misc 3d __, 2019 NY Slip Op _____ [appeal No. 2017-2137 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion and, upon consolidation, 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, defendant moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68017/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court [*2]entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

For the reasons stated in EMC Health Prods., Inc., as Assignee of Boakye, Oheneba v Maryland Auto. Ins. Fund (__ Misc 3d __, 2019 NY Slip Op _____ [appeal No. 2017-2137 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jeffrey G. Lerman, P.C. (Jeffrey G. Lerman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 19, 2017. The order, insofar as appealed from, granted defendant’s motion, in effect, to consolidate the above-entitled action with actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion and, upon consolidation, 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, defendant moved to, among other things, in effect, consolidate the instant action with two related actions entitled EMC Health Prods., Inc., as Assignee of Kubi, George v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68019/15) and EMC Health Prods., Inc., as Assignee of Smith, Eugene v Maryland Auto. Ins. Fund (Civ Ct, Kings County, index No. 68018/15) for the purposes of disposition of the motion, and, upon consolidation, to dismiss the complaints in all three actions, contending that the Civil Court lacked personal jurisdiction over defendant. In support of its motion, defendant alleged that it conducts no business in the State of New York, including that it does not issue insurance policies here, has no sales representative or agent within [*2]the state, and is not licensed to transact business within the State of New York. Plaintiff opposed the motion. Plaintiff appeals from so much of an order of the Civil Court entered April 19, 2017 as consolidated the actions for the purposes of disposition of the motion and dismissed the complaint.

On appeal, plaintiff contends that the court erred in consolidating the three actions, arguing that consolidation is improper because defendant “failed to proffer any of the pleadings from any of the actions.” As this argument is raised for the first time on appeal, it is not considered (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Upon defendant’s prima facie showing that the Civil Court lacked personal jurisdiction over it, on the ground that there was no jurisdictional basis for suit in the Civil Court of the City of New York (see CCA 404), the burden shifted to plaintiff to establish that it had acquired jurisdiction, as plaintiff “carries the ultimate burden of proof on that issue” (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; see also Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In determining whether a plaintiff has met its burden, a court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d at 430). Here, plaintiff failed to meet its burden. Plaintiff’s opposition papers consisted only of the affirmation of its counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). Plaintiff failed to produce evidence showing a jurisdictional basis for the service (see CCA 404; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]; see also Matter of Hereford Ins. Co. v American Ind. Ins., 136 AD3d 551 [2016]).

In view of the foregoing, we do not consider plaintiff’s other arguments.

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

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

Decided on August 9, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gullo & Associates, LLP (Cristina Carollo of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered April 14, 2017. The judgment, entered pursuant to an order of that court entered November 2, 2016 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion to dismiss the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

Plaintiff Tam Medical Supply Corp. (Tam) commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident on August 29, 2012. Defendant insurer (Kemper) commenced a declaratory judgment action in the Supreme Court, Bronx County, against Tam and its assignor, among others, seeking a declaration that Kemper has no obligation to pay any pending or future claims for no-fault benefits arising from an accident on August 29, 2012, and Kemper moved for summary judgment. By order dated April 11, 2016, the Supreme Court granted Kemper’s motion, finding that Kemper was not obligated to pay the claims pertaining to the August 29, 2012 accident.

Thereafter, Tam moved in the Civil Court for summary judgment and Kemper cross-m[*2]oved in the Civil Court to dismiss the complaint on the ground that Tam’s action is barred by virtue of the Supreme Court’s order which granted summary judgment to Kemper. By order entered November 2, 2016, the Civil Court denied Tam’s motion and granted Kemper’s cross motion. Tam appeals from a judgment which was subsequently entered dismissing the complaint.

By virtue of the findings of fact of the Supreme Court within its award granting summary judgment to Kemper, there was a conclusive determination of the merits of the claims in question (see Bayer v City of New York, 115 AD3d 897 [2014]; Panagiotou v Samaritan Vil., Inc., 88 AD3d 779 [2011]; Methal v City of New York, 50 AD3d 654 [2008]). Consequently, as Tam’s action in the Civil Court is barred by the doctrine of res judicata (see Bayer, 115 AD3d at 899; Panagiotou, 88 AD3d 779; Methal, 50 AD3d at 656), the Civil Court properly granted defendant’s cross motion and denied plaintiff’s motion.

Accordingly, the judgment is affirmed.

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

[*1]

Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn, NY (David M. Gottlieb and Stefan Belinfanti of counsel), for respondent.

In an action to recover no-fault benefits, 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 October 27, 2017. The order reversed so much of an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 18, 2014, as (1) granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover no-fault benefits for services billed under CPT code 97039 (moxibustion), and (2) denied that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action, and the order dated October 27, 2017, thereupon denied that branch of the defendant’s motion and granted that branch of the plaintiff’ cross motion.

Ordered that the order dated October 27, 2017, is affirmed, with costs.

The plaintiff commenced this action in the Civil Court of the City of New York, Kings County, to recover the sum of $727.36, the cost of the unpaid services rendered to its assignor, Dulce Baez. The defendant answered the complaint and asserted as a fourth affirmative defense that “[a]n unlisted modality has been billed” for which “[d]ocumentation of the type of modality, a description of services, and if there has been constant attendance, the amount of time is required for payment.”

The defendant subsequently moved, and the plaintiff cross-moved, for summary judgment. The Civil Court granted the defendant’s motion and denied the plaintiff’s cross motion, concluding that the defendant had “paid the claims as per the proper fee schedule.” The plaintiff appealed the order of the Civil Court to the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts.

The Appellate Term reversed the order insofar as appealed from, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover for services billed under CPT code 97039 (moxibustion), and granted that branch of the plaintiff’s cross motion which was for summary judgment on that cause of action. By further order of the Appellate Term, the defendant was granted leave to appeal to this Court.

The no-fault law “is aimed at ensuring ‘prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists’ ” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 504-505 [2015], quoting Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). “The legislative design of the no-fault insurance scheme demonstrates an interest in prompt resolution of reimbursement claims, a desire to avoid litigation, and statutory consequences on an insurer to incentivize it to seek verification of a claim, deny it, or pay” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 506-507).

“Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]; see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1168 [2010]). “Subsequent to the receipt of one or more of the completed verification forms [used to establish proof of claim], any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). “If an insurer seeks additional verification, . . . the 30-day window is tolled until it receives the relevant information requested” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [citation omitted]). In Hospital for Joint Diseases v Travelers Prop. Cas. Inc. Co., the Court of Appeals wrote “[w]e concur” with “Appellate Division case law [that] consistently holds that a carrier’s failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies” (id. at 318).

Here, moxibustion therapy was billed under CPT code 97039, which is described as an “unlisted modality.” “The workers’ compensation fee schedules do not assign a relative value to . . . [this] code[ ], but instead have assigned [it] a ‘By Report’ designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement” (Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

The defendant maintains that it properly denied payment of the charges listed under CPT code 97039 “because the provider failed to provide pertinent information concerning the nature, extent, and need for the service, or the time, the skill and the equipment necessary.” In other words, the denial of the plaintiff’s claim was based on the lack of sufficient information.

We agree with the Appellate Term’s determination that the denial of the plaintiff’s claim for services billed under CPT code 97039 was without merit as a matter of law. Although an unlisted modality must be justified by report, this requirement has no bearing on the insurer’s burden of requesting additional verification in the first instance (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 319), which the defendant insurer did not do. Since there is no dispute that the defendant received the requisite claim form and that the denial of the claim was without merit as a matter of law, summary judgment on the cause of action to recover for services billed under CPT code 97039 (moxibustion) was properly awarded to the plaintiff. Mastro, J.P., Balkin, Barros and Christopher, JJ., concur.

Decided on August 2, 2019

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