Reported in New York Official Reports at Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51633(U))
| Pavlova v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51633(U) [61 Misc 3d 141(A)] |
| Decided on November 16, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-437 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 26, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 had failed to appear for duly scheduled examinations under oath.
For the reasons stated in Pavlova, as Assignee of Scurry, Kevin v State Farm Mut. Auto. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2016-428 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018
Reported in New York Official Reports at Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51632(U))
| Pavlova v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51632(U) [61 Misc 3d 141(A)] |
| Decided on November 16, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-428 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 26, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Furthermore, defendant was not required to set forth objective reasons for requesting the EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 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]). [*2]Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018
Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))
| Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. |
| 2018 NY Slip Op 51607(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1957 Q C
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Sweetbaum & Sweetbaum, Esqs. (Joel A. Sweetbaum of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 8, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that plaintiff had failed to appear for duly scheduled EUOs—defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane [*2]Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim 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]). As a result, plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Blackman v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51606(U))
| Blackman v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51606(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1748 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 April 12, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 examinations under oath (EUOs).
Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Barshay v 21st Century Centennial Ins. Co. (2018 NY Slip Op 51605(U))
| Barshay v 21st Century Centennial Ins. Co. |
| 2018 NY Slip Op 51605(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1563 K C
against
21st Century Centennial Insurance Company, Appellant.
Law Offices of Bryan Rothenberg (Konstantinos Tsirkas 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 (John J. Kelley, J.), entered May 2, 2016. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.
Defendant’s motion for summary judgment was based upon, among other things, what purported to be an “affidavit” from defendant’s claim representative, which “affidavit” was not sworn to before a notary public (see e.g. Healthy Way Acupuncture, P.C. v Farmington Cas. Co., 49 Misc 3d 141[A], 2015 NY Slip Op 51595[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), and therefore cannot be relied upon to raise an issue of fact as to the timeliness of defendant’s denial of claim forms, let alone demonstrate, as a matter of law, that defendant had timely denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Pavlova v Allstate Ins. Co. (2018 NY Slip Op 51604(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg 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 April 14, 2016. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the ground that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the ground that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the ground that those services lacked medical necessity.
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 several grounds, including lack of medical necessity and that plaintiff was not entitled to be paid for the services billed under CPT code 20999 pursuant to the workers’ [*2]compensation fee schedule. Insofar as appealed from, the Civil Court’s order denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the latter ground.
It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 20999 in its entirety. Because the workers’ compensation fee schedule has assigned a “By Report” designation for that CPT code, a provider billing under that CPT code is required to furnish, upon request, certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not provide such documentation with its claim form, and the insurer decides not to pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to request “any additional verification required by the insurer to establish proof of claim” within 15 business days of its receipt of the claim form (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Thus, defendant’s denial of payment of the services billed under CPT code 20999 on the ground that plaintiff had failed to provide sufficient documentation, even though defendant had not demonstrated that it had requested any such documentation, is without merit, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under that CPT code on that ground should have been denied. As the Civil Court did not address the merits of defendant’s lack of medical necessity defense with respect to the services billed under CPT code 20999, the matter is remitted to the Civil Court for a determination of that branch of defendant’s cross motion.
As plaintiff failed to demonstrate that its 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 a timely denial of claim 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]), plaintiff failed to establish its prima facie entitlement to judgment as a matter of law. Consequently, plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the ground that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 on the ground that those services lacked medical necessity.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))
| Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51603(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1453 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro 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 8, 2016. 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 affirmed, with $25 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 had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
To the extent defendant seeks to have this appeal dismissed as untimely based upon dehors-the-record allegations included in an appellate appendix, we decline to review its argument. Defendant’s remedy was to make a motion for that relief.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Parisien v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51602(U))
| Parisien v State Farm Mut. Auto. Ins. Co. |
| 2018 NY Slip Op 51602(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1242 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Richard T. Lau & Associates (Arthur T. Kontaxis 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 March 30, 2016. 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 affirmed, with $25 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 the amounts plaintiff sought to recover, for services rendered after April 1, 2013, were in excess of the workers’ compensation fee schedule, and denied plaintiff’s cross motion for summary judgment.
Since 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for . . . claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), plaintiff’s sole issue on appeal, regarding defendant’s denial of claim form, is without merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))
| Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. |
| 2018 NY Slip Op 51601(U) [61 Misc 3d 140(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1239 K C
against
NY Central Mutual Fire Ins. Co., Respondent.
Gary Tsirelman, P.C. (Jennifer Raheb of counsel), for appellant. Nightingale Law, P.C. (Michael S. Nightingale of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated March 16, 2016. 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 affirmed, with $25 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.
While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant demonstrated that copies of the IME scheduling letters had been mailed to the attorney who represented plaintiff’s assignor with respect to the accident in question (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Furthermore, contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to establish that plaintiff’s assignor had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018
Reported in New York Official Reports at T & S Med. Supply Corp. v Travelers Ins. Co. (2018 NY Slip Op 51597(U))
| T & S Med. Supply Corp. v Travelers Ins. Co. |
| 2018 NY Slip Op 51597(U) [61 Misc 3d 139(A)] |
| Decided on November 9, 2018 |
| 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 November 9, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-728 K C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 27, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 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, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered January 27, 2016, the Civil Court granted defendant’s motion.
In support of its motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op [*2]51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 09, 2018