Law Office of Moira Doherty, P.C. (Janice Rosen of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 29, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignors had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs). The Civil Court, by order dated January 29, 2016, denied both motions finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, that defendant had established that it had timely denied the claims on the grounds that plaintiff’s assignors had failed to appear for EUOs and IMEs, and that the only triable issues were whether the EUO and IME scheduling letters had been timely and properly mailed.

Contrary to defendant’s contention, defendant failed to establish that the initial and follow-up letters scheduling the EUOs and IMEs had been timely 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 EUOs and IMEs had been properly scheduled and, thus, that plaintiff’s assignors had failed to appear at duly scheduled EUOs and IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

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

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

Decided on March 1, 2019

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

Decided on March 1, 2019

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

Decided on March 1, 2019

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

Decided on March 1, 2019

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

Decided on March 1, 2019

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered June 9, 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 June 9, 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 “an issue of fact regarding the discrepancy between the person stated to be the contact for defense counsel in the EUO request letters and the person signing the affidavit regarding plaintiff’s failure 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]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th [*2]Jud Dists 2016]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant. However, 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.

Decided on March 1, 2019

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius 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 May 9, 2016. The order granted 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 $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

Plaintiff argues that defendant failed to establish that defendant’s fee reductions, which had been done in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors, were proper. However, this court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Nevertheless, plaintiff correctly argues that the record establishes that defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover upon plaintiff’s claim seeking $54.73 for services rendered on February 5, 2014 and billed under CPT code 99203 for the evaluation and management of a new patient. Likewise, defendant was not entitled to summary judgment dismissing so much of plaintiff’s complaint as sought to recover an additional $.63 for services rendered on February 27, 2014 because, as set forth in the affidavit defendant submitted [*2]from its certified professional coder, plaintiff was entitled to $16.70 for that date of service but defendant only paid $16.07.

Accordingly, 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 $54.73 for an initial visit on February 5, 2014 and an additional $.63 for services rendered on February 27, 2014 are denied.

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

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Katherine A. Levine, J.), entered March 9, 2015. 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 March 9, 2015, 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 the 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 the location of the office in which defendant generated the EUO scheduling letters, and the reasonableness of and justification for defendant’s EUO requests. 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 claim (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant. However, 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 [*2]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 neither defendant’s transmittal of the claims from one of its offices to another of its offices nor the location of the office within which the timely EUO scheduling letters were generated raises 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 SIEGAL, JJ., concur.