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Peter C. Merani, P.C., New York, NY (Eric M. Wahrburg of counsel), for appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), dated December 9, 2016. The order denied the plaintiff’s motion for summary judgment on the complaint and, upon searching the record, awarded summary judgment to the defendant.

Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that the amount of no-fault insurance benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof searching the record and awarding summary judgment to the defendant; as so modified, the order is affirmed, with costs payable to the plaintiff.

This action pursuant to Insurance Law § 5106 (c) arises from a motor vehicle accident that occurred on February 6, 2013. Christopher Krull allegedly was injured in the accident, and he underwent spinal fusion surgery performed by P. Jeffrey Lewis of the defendant, Buffalo Neurosurgery Group. The defendant, as assignee of Krull, submitted a claim to the plaintiff insurer for no-fault insurance benefits for the surgery and related care. The plaintiff denied the claim. The defendant submitted the matter to arbitration. The arbitrator determined that the defendant was entitled to no-fault compensation in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appealed the award to a master arbitrator, who affirmed the award.

On August 19, 2015, the plaintiff commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of the defendant’s claims for no-fault insurance benefits. The plaintiff then moved for summary judgment on the complaint. In an order dated December 9, 2016, the Supreme Court denied the motion and, upon searching the record, awarded summary judgment to the defendant, concluding that the master arbitrator had properly affirmed the award of benefits to the defendant in the principal sum of $11,352.46, plus interest and attorney’s fees. The plaintiff appeals.

Insurance Law § 5106 (c) permits a de novo adjudication of a no-fault insurance claim where the master arbitrator’s award is $5,000 or greater, exclusive of interest and attorney’s fees (see 11 NYCRR 65-4.10 [h] [1] [ii]; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577 [1987]). Here, we agree with the Supreme Court’s denial of that branch of the plaintiff’s motion which was for summary judgment on so much of the complaint as, in effect, sought a determination that it was not obligated to pay the defendant no-fault benefits relating to Krull’s surgery, since the surgery was not medically necessary. The peer review reports submitted in support of that branch of the motion failed to demonstrate, prima facie, that the surgery performed on Krull was not medically necessary (see Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U] [App Term, 1st Dept 2013]; cf. AutoOne Ins./Gen. Assur. v Eastern Is. Med. Care, P.C., 136 AD3d 722 [2016]; Cortland Med. Supply, Inc. v 21st Century Centennial Ins. Co., 46 Misc 3d 136[A], 2014 NY Slip Op 51886[U] [App Term, 1st Dept 2014]). In light of the plaintiff’s failure to meet its prima facie burden, we need not consider the sufficiency of the opposing papers on that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770).

We agree with the Supreme Court’s determination that the plaintiff established its prima facie entitlement to judgment as a matter of law on that branch of its motion which was for summary judgment on so much of the complaint, as, in effect, sought a determination that the amount of the benefits sought by the defendant was not in accordance with the workers’ compensation fee schedule (see Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept 2018]; Compas Med., P.C. v 21st Century Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51228[U] [App Term, 2d Dept 2017]; Renelique v Allstate Ins. Co., 57 Misc 3d 126[A], 2017 NY Slip Op 51141[U] [App Term, 2d Dept 2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 Slip Op 50597[U] [App Term, 2d Dept 2017]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept 2015]). Contrary to the court’s determination, however, the defendant, in opposition to that prima facie showing, failed to raise a triable issue of fact (see Renelique v Allstate Ins. Co., 57 Misc 3d 126[A] [2017]; Dynasty Med. Care, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A] [2017]). Accordingly, that branch of the plaintiff’s motion should have been granted.

Since the defendant’s submissions were not sufficient to establish that the arbitrator and the master arbitrator were correct in awarding the defendant no-fault insurance benefits in the principal sum of $11,352.46, the Supreme Court should not have searched the record and awarded summary judgment to the defendant. Rivera, J.P., Austin, Cohen and Iannacci, JJ., concur.

Decided on May 10, 2019

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

Decided on May 10, 2019

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

Decided on May 10, 2019

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 31, 2016. 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 had failed to appear for duly scheduled examinations under oath (EUOs). By order entered May 31, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and whether plaintiff had failed to appear for the EUOs “due to a discrepancy as to the person stated in the EUO request letters to report to at the EUO, and the person signing the affirmation alleging he was assigned and stating that plaintiff failed to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d [*2]143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). A review of the record establishes that the Civil Court correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. As a result, the Civil Court should have granted defendant’s motion for summary judgment. We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact.

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

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

Decided on May 10, 2019

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

Decided on May 10, 2019

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

Decided on May 10, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni 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 25, 2016. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth, and fifth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fourth, and fifth causes of action are denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth, and fifth causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

For the reasons stated in Metro Psychological Servs., P.C., as Assignee of Adams Kenneth v Allstate Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2016-2907 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fourth, and fifth causes of action are denied.

Decided on May 10, 2019

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