[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 23, 2017

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel) for appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel) for respondent.

Ordered that, on the court’s own motion, defendant’s notice of appeal is treated as an application for leave to appeal from so much of the Civil Court’s order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further ordered that the order, insofar as appealed from, is reversed, with $30 costs, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C. is vacated.

In this action, commenced on April 12, 2013, by three providers to recover assigned first-party no-fault benefits, defendant interposed an answer, which asserted, among other things, that the action is barred by the doctrine of res judicata. Thereafter, defendant moved for partial summary judgment dismissing so much of the complaint as was asserted by plaintiffs Advanced Wellness Chiropractic, P.C. and Maximum Care Physical Therapy, P.C. upon grounds not at issue here. Plaintiffs opposed the motion and cross-moved for summary judgment in favor of all three plaintiffs. In opposition to plaintiffs’ cross motion and in further support of defendant’s motion, defendant’s attorney submitted an affirmation in which he argued that, on the basis of an order in a declaratory judgment action in the Civil Court, New York County, entered October 6, 2014, upon the default of plaintiff Fresh Acupuncture, P.C., Fresh Acupuncture is not entitled to receive no-fault benefits for the accident at issue on the ground of the failure{**56 Misc 3d at 100} by Fresh Acupuncture to appear for scheduled examinations under oath. Fresh Acupuncture appeals from so much of an order of the Civil Court as, upon plaintiffs’ cross motion for summary judgment, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by Fresh Acupuncture.

Insofar as is relevant here, CCA 212-a provides:

“The [Civil Court] shall have the jurisdiction defined in section 3001 of the CPLR to make a declaratory judgment with respect to:

“(a) any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.”

The Civil Court, New York County, declaratory judgment action was an action by an insurer against a provider and did not involve a “controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.” Thus, the Civil Court, New York County, lacked subject matter jurisdiction to entertain the declaratory judgment action (see CPLR 3001; see generally 133 Plus 24 Sanford Ave. Realty Corp. v Xiu Lan Ni, 47 Misc 3d 55, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent that this court’s decision in Five Boro Psychological Servs., P.C. v AutoOne Ins. Co. (27 Misc 3d 89 [2010]) may have held to the contrary, it should not be followed.

Accordingly, the order, insofar as appealed from, is reversed, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., is vacated.

Elliot, J.P., Pesce and Solomon, JJ., concur.

601499/2017

For Plaintiff: Jason Tenenbaum, Esq.
For Defendant: Rachel Drachman, Esq.

The following papers read on this motion:

Karen V. Murphy, J.

Defendant moves this Court for an Order dismissing the complaint on the ground that this matter has already been adjudicated in arbitration, and that the pleading fails to state a cause of action. Defendant also seeks to consolidate this matter with a Bronx County matter identified by Supreme Court Index No. 25976/2016E (Motion Sequence 001).

Plaintiff opposes Motion Sequence 001 and cross-moves for an Order granting plaintiff summary judgment adjudging and declaring that defendant is not entitled to no-fault coverage for the motor vehicle accident that occurred on December 17, 2014 (Motion Sequence 002). Motion Sequence 002 is unopposed.

With regard to Motion Sequence 001, that branch seeking to consolidate this action with a Bronx County action entitled Global Liberty Insurance Co. v. FJ Orthopedics and Pain Management, PLLC, a/a/o Mary King is denied. The Bronx County action was disposed on May 1, 2017 by judgment granting Global Liberty Insurance Company of New York a default judgment declaring that defendant FJ Orthopedics and Pain Management, PLLC is not entitled to reimbursement for services performed on defendant’s assignor (Mary King) for alleged injuries sustained in a motor vehicle accident that occurred on December 17, 2014.

The action pending before this Court involves the same assignor, Mary King, and results [*2]from the same motor vehicle accident.

That branch of defendant’s motion seeking dismissal of this action on the ground that arbitration has already been held is also denied. Defendant contends that “the matter was submitted for Arbitration. In light of the fact that the claims herein have already had an opportunity to be adjudicated, and both parties had a fair hearing, it would be a waste of the parties’ time and resources . . . and a waste of this Courts (sic) time and resources and against the interests of judicial economy, for the parties to reset litigation of the subject claims and begin the process anew in the supreme courts.”^[FN1]

Contrary to defendant’s contention, Insurance Law § 5106 (c) and 11 NYCRR 4.10 (h)(1) (ii) expressly provide that either party to a matter submitted to arbitration has the right to a de novo determination of the dispute in the event that the master arbitrator’s award equals or exceeds $5,000, exclusive of interest and attorneys’ fees (Matter of Greenberg, 70 NY2d 573 [1987]; AutoOne Insurance Company v. Eastern Island Medical Care, P.C., 141 AD3d 499 [2d Dept 2016]; Allstate Insurance Company v. Nalbandian, 89 AD3d 648 [2d Dept 2011]; Progressive Insurance Company v. Strough, 55 AD3d 1402 [4th Dept 2008]).

Moreover, there is no evidence presented that the policy in question contained a binding arbitration clause, nor has defendant ever moved for confirmation of the arbitration award, which, if confirmed, would be accorded res judicata effect (see Aetna Casualty & Surety Company v. Mantovani, 240 AD2d 566 [2d Dept 1997]).

That branch of defendant’s motion seeking dismissal of the complaint for failure to plead with particularity in accordance with CPLR § 3013 is also denied. This Court has reviewed the complaint filed in this action and finds that it sets forth the facts underlying the cause of action seeking declaratory judgment with sufficient particularity to give notice of plaintiff’s claim. The series of transactions and occurrences intended to be proved, including the billing and verification demands that were sent and not complied with, are adequately set forth (Di Mauro v. Metropolitan Suburban Bus Authority, 105 AD2d 236, 239 [2d Dept 1984]).

Although defendant does not specifically refer to CPLR §3211 (a)(7) in claiming that plaintiff fails to state a cause of action, the Court will address defendant’s claim as one made pursuant to the statute.Defendant has answered; however, this branch of its motion is not time-barred by CPLR § 3211 (e).

When deciding a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & [*3]Co., 5 NY3d 11, 19 [2005]).

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7) [citation omitted]” (Sokol, supra at 1181). “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it… dismissal should not eventuate” (Guggenheimer, supra at 275; see also Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 AD3d 784 [2d Dept 2015]; YDRA, LLC v. Mitchell, 123 AD3d 1113 [2d Dept 2014]; Korsinsky v. Rose, 120 AD3d 1307 [2d Dept 2014]).

“Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (CPLR § 3211 [c]). Without proper notice, a “court’s sua sponte treatment of the motion as one for summary judgment [would] deprive[ ] plaintiff of the ‘opportunity to make an appropriate record’ and thus thwart[ ] the very purpose of CPLR 3211 (c)” (Mihlovan v. Grozavu, 72 NY2d 506, 508 [1988], quoting Rovello v. Orofino Realty Co., 40 NY2d 633, 635 [1976]).

“There are nevertheless three circumstances under which a court’s failure to provide CPLR 3211 (c) notice may be overlooked. One circumstance is when CPLR 3211 (c) treatment is specifically requested not by one party, but by all of the parties, or is at least requested by the same party that is aggrieved by the summary judgment determination. A second circumstance is when a dispute involves no questions of fact, but only issues of law argued by all parties, such as in the context of declaratory judgment actions involving an issue of statutory construction or the application of an unambiguous contractual provision. The third circumstance is when the respective submissions of both parties demonstrate that they are laying bare their proof and deliberately charting a summary judgment course [citations omitted]” (Hendrickson v. Philbor Motors, Inc., 102 AD3d 251, 258-259 [2d Dept 2012]).

In this case, defendant claims that it complied with plaintiff’s verification request, and submits an affidavit from an individual employed as a Billing Manager for MD Capital Advisors, the third-party billing company that handles all no-fault billing for FJ Orthopedics PLLC, purporting to establish that the surgery center that hosted the surgical procedure performed on Mary King responded to Global Liberty’s verification requests. Defendant also attaches a copy of three small photographs that are claimed to be the surgical photographs requested by plaintiff Global Liberty.

Accordingly, defendant lays bare its proof, arguing that this action should be dismissed because it complied with plaintiff’s verification requests; as established in arbitration, the surgical photos were provided to plaintiff by the surgery center where the procedure was performed; “[w]hether they received the photos from FJ Orthopedics, from Doshi Diagnostic or from Excel Surgery Center should be of no importance as long as they have the photos in their possession.”

In response to defendant’s motion, plaintiff cross-moves for summary judgment (Motion Sequence 002). Plaintiff’s motion was e-filed and served on April 6, 2017; defendant’s motion was e-filed on March 15, 2017. Both Motion Sequences 001 and 002 bore return dates of April 7, 2017. On April 7, 2017, both sequences were adjourned to April 17, 2017, on which date they were marked submitted for the Court’s consideration. Defendant does not oppose plaintiff’s summary judgment motion. Thus, it would not thwart the purpose of CPLR § 3211 (c) to [*4]convert defendant’s motion to one for summary judgment. Plaintiff, having responded to defendant’s motion with its own motion for summary judgment, has not been deprived of an opportunity to make an appropriate record (cf. Mihlovan, supra). Moreover, defendant has not been deprived of an opportunity to supplement its proof by responding to plaintiff’s summary judgment motion; plaintiff’s summary judgment motion was adjourned to April 17, 2017, but defendant apparently chose not to oppose it. Accordingly, the Court will now consider plaintiff’s summary judgment motion.

It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361[l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the defendant (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).

A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

“A no-fault claim is overdue if it is not paid or denied within thirty [30] days of receipt (see Insurance Law § 5106 [a]; 11 N.Y.C.R.R. 65-3.8 [a][1] & [c]) unless, within fifteen [15] business days of receipt of the claim, the insurer requests additional verification (see 11 N.Y.C.R.R. 65-3.8 [b][3])” (Westchester Medical Center a/a/o Salvatore Dipietro v GEICO, 2011 NY Slip Op 30862 [Sup Ct, Nassau County 2011]; A.B. Medical Services PLLC a/a/o David Ruiz v. GEICO General Insurance Company, 22 Misc 3d 1116A, 880 NYS2d 222 [Dist Ct, Nassau County 2008]).

Plaintiff contends that “[i]t is uncontroverted that the MRI films were never received” pursuant to plaintiff’s written verification requests; therefore, the no-fault billing is not overdue, and it should be declared that plaintiff does not owe defendant no-fault benefits.

In support of its motion, plaintiff submits, inter alia, the summons, complaint, and answer, the written verification requests made to defendant Lewin and to Doshi Diagnostic Imaging Services for the MRI films, and the affidavit of plaintiff’s no-fault claims adjuster.

Based upon the affidavit of Regina Abbatiello, plaintiff’s no-fault claims adjuster, plaintiff establishes that the surgery was performed on March 24, 2015, and the bill from defendant was received on April 9, 2015. The bill was delayed pending receipt of operative photographs and MRI films. By written request dated March 20, 2015, plaintiff requested, inter alia, “a copy of the R/Shoulder MRI films” from Doshi Diagnostic Imaging Services. Apparently, plaintiff did not receive the MRI films, and it sent a second written verification request to Doshi dated April 20, 2015.

Not having received the MRI films, plaintiff, by written requests dated April 28, 2015 and May 28, 2015, notified defendant and requested a copy of the right shoulder MRI films from defendant. The letters are addressed to Jonathan Lewin MD PC, and they state in relevant part, “[a]lso awaiting a copy of the R/Shoulder MRI films from Doshi Diagnostic MRI which were requested from the MRI facility and the doctor’s office. Once received the claim will be reviewed and processed.” Ms. Abbatiello’s affidavit avers that the MRI films were never received from either Doshi or from defendant Lewin.

Based upon the foregoing, plaintiff has established its prima facie entitlement to summary judgment as a matter of law that the claim is not overdue, since the additional verification remains outstanding, and that defendant is not entitled to reimbursement for no-fault benefits a/a/o Mary King related to the motor vehicle accident that occurred on December 17, 2014 (St. Vincent’s Hospital of Richmond v. American Transit Insurance Company, 299 AD2d 338 [2d Dept 2002]; 11 NYCRR 65.15 [g][1][i], [2][iii]).

Defendant does not oppose the instant cross-motion; therefore, defendant fails to raise a triable issue of fact as to the failure to respond to the request for the right shoulder MRI films.

Even considering defendant’s submissions upon Motion Sequence 001 as opposition to the instant summary judgment motion, defendant still fails to raise a triable issue of fact sufficient to defeat plaintiff’s motion.

The affidavit of Mike Manzo, billing manager for MD Capital Advisors, states that MD Capital Advisors is the third party billing company for FJ Orthopedics PLLC, which is not a party to this action. In fact, the affidavit appears to have been submitted in connection with the prior arbitration entitled FJ Orthopedics PLLC / Mary King, Applicant and Global Liberty Insurance Company of New York. Thus, it is unknown to the Court how Mr. Manzo’s affidavit is germane to defendant Lewin named in this action. Assuming, however, that his affidavit is relevant, because it relates to the assignor in this matter (Mary King), Mr. Manzo speaks to the issue of the surgical photographs, which is not the subject of the summary judgment motion. Moreover, his affidavit is vague as to “the verification response” and “requested documents” allegedly submitted to plaintiff on June 2, 2015; however, the response was likely the letter on FJ Orthopedics letter head, signed by Mike Manzo, dated May 21, 2015, which is annexed to Manzo’s affidavit. That letter states that, “your request for MRI films and color photos of surgey (sic) for the above mention (sic) claim is overly burdensome as neither our client FJ Orthopedics nor the patient Mary King does not (sic) have access to the actual films. . . The films are in Doshi Diagnostic’s possession . . . therefore, we enjoin you to obtain the actual films . . . with the attached medical authorizations signed by Mary King.”

Defendant’s submissions do nothing to raise a triable issue of fact as to the failure to provide the MRI films, nor do the submissions controvert the established fact that plaintiff attempted to get the films directly from Doshi first, by sending a first request and then a follow-up request, and when it received no films, plaintiff notified defendant of the request. Plaintiff sent the verification requests directly to Doshi, and plaintiff also timely informed the applicant, the defendant in this action, of the nature of the verification sought, and from whom it was sought, after the initial requests went unsatisfied (Doshi Diagnostic Imaging Servs. v. State Farm Insurance Co., 16 Misc 3d 42 [App Term 2d Dept 2007]; see also Advantage Radiology, P.C. v. Nationwide Mutual Insurance Company, 55 Misc 3d 91 [App Term 2d Dept 2017]).

The fact that FJ Orthopedics, albeit not a party to this action, may have provided plaintiff with a HIPPA authorization for the films does not constitute a response to the request for verification. Plaintiff did not need a HIPPA authorization to obtain the films (Eagle Surgical Supply, Inc. v. GEICO Insurance Co., 41 Misc 3d 134[A][App Term 1st Dept 2013]), and in any event, FJ Orthopedics’ statement made in its May 21, 2015 letter that the request “is overly burdensome” is evidence of its lack of motivation to satisfy plaintiff’s verification request.

Defendant has failed to raise a material, triable issue of fact; therefore, plaintiff’s summary judgment motion is granted.

Submit a judgment on notice.

The foregoing constitutes the Order of this Court.

Dated: June 22, 2017

Mineola, NY

Karen V. Murphy

Footnotes

Footnote 1:Defendant has submitted a master arbitration award in another matter, but plaintiff has submitted the correct master arbitration award pertaining to the parties in this action.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 29, 2017

APPEARANCES OF COUNSEL

Peter C. Merani, P.C. (Brian Kratenstein of counsel) for appellant.

Gary Tsirelman, P.C. (Irena Golodkeyer of counsel) for respondent.

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

In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that defendant denied plaintiff’s claim on May 10, 2011 on the ground of lack of medical necessity. In May 2014, defendant moved for summary judgment dismissing the complaint on the ground that the amount of available coverage had been exhausted. By order entered April 1, 2015, the Civil Court denied defendant’s motion.

At the outset, we note that, although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not precluded (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Flushing Traditional Acupuncture, P.C. v Infinity Group, 38 Misc 3d 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

In Nyack Hosp. v General Motors Acceptance Corp. (8 NY3d 294 [2007]), the Court of Appeals, noting that no-fault benefits are overdue if not paid within 30 calendar days after receipt of a fully complete claim, held that the word “claims,” as used in 11 NYCRR 65-3.15, the priority-of-payment regulation, does not encompass claims that are not yet complete because they have not been fully verified in accordance with 11 NYCRR 65-3.5 (b). In contrast, in the instant case, by denying the claim on May 10, 2011, defendant implicitly declared that the claim at issue was fully verified. As we read Nyack Hosp. to hold that fully verified claims are payable in the order they are received (see 11 NYCRR 65-3.8 [b] [3]; 65-3.15; Nyack Hosp., 8 NY3d 294), defendant’s argument—that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage—lacks merit (see 11 NYCRR 65-3.15; cf. Nyack Hosp., 8 NY3d 294; but see Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]). Consequently, defendant{**55 Misc 3d at 46} has not established its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

Solomon, J.P., Pesce and Elliot, JJ., concur.

652106/2016

For Plaintiff:
Josh Youngman of Peter C. Merani, P.C.

This matter, brought pursuant to NY Insurance Law 5106(c), seeks de novo adjudication of the dispute between the parties concerning no-fault benefits. Although the parties submitted to mandatory arbitration, since to arbitrator awarded defendant a sum greater than $5,000, plaintiff is permitted to bring this action. Both plaintiff and defendant have moved for summary judgment.

On January 31, 2014, Bujar Kaziu the assignor, was in an automobile accident and began to receive no-fault benefits. On June 6, 2014, plaintiff’s claim representative determined that additional verification in the form of an independent medical examination (“IME”) was required and properly noticed an IME for June 26, 2014. The assignor failed to appear for the IME on June 26, 2014 and verification was again sought on July 1, 2014 by scheduling an IME on July 17, 2014. On July 1, 2014, the assignor had a surgery on his right shoulder. Defendant provider Health East Ambulatory Surgical Center timely submitted a claim on July 3, 2014 seeking $30,365.16 in reimbursement.

On July 10, 2014, plaintiff rescheduled the July 17, 2014 IME to August 21, 2014. Plaintiff did not provide this Court with any reason why the IME was scheduled, nor did plaintiff [*2]state that the rescheduling was done at the request or with the consent of the assignor. The July 10, 2014 letter states that the reason for the rescheduling was due to the July 1, 2014 surgery. Plaintiff alleges that it received the bill for the surgery on July 11, 2014. On August 21, 2014, Dr. Dorothy Scarpinato performed the IME and issued her report. Dr. Scarpinato found that right shoulder surgery was not medically necessary or causally related. On September 18, 2014, plaintiff denied the July 1, 2014 claim based on a lack of medical necessity and because the amount sought was in excess of the appropriate fee schedule.

As the parties disputed the validity of the denied claims, they went to arbitration. Arbitrator Paul Israelson found that the September 18, 2014 denial was not timely and accordingly found in favor of defendant on liability. However, the arbitrator also found that defendant did not submit the claim pursuant to the proper New Jersey fee schedule and reduced the amount to $18,154.85. Plaintiff commenced this action seeking de novo adjudication of the dispute. At present, defendant acknowledges that the fee calculation was not correct and seeks an amended amount of $21,903.93 for the surgery performed on July 1, 2014.

It is well established that an insurer must pay or deny a claim within 30 days (11 NYCRR 65-3.8(1), “No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.”). A defense predicated on a lack of medical necessity must be asserted within that time period (Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term 2d Dept 2009] citing Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 [1997]; and Melbourne Med. P.C. v. Utica Mut. Ins. Co., 4 Misc 3d 92 [App. Term, 2d & 11th Jud. Dists. 2004]). Here, plaintiff alleges that it received the claim on July 11, 2014. Thus, plaintiff must have paid or denied the claim by August 11, 2014, unless plaintiff properly sought verifications.

Plaintiff alleges that it received the claim for the July 1, 2014 bill on July 11, 2014. Thus, any requests for an IME, including the request on June 6, 2014, the follow-up on July 1, and the rescheduling on July 10, 2014, are pre-claim requests. Following the July 11, 2014 receipt of the bill, the first communication by plaintiff was the July 31, 2014 delay letter. The insurance regulations permit pre-claim IMEs, but without consequence for the running of the 30—day claim determination period (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 7 Misc 3d 18 [App Term, 2d & 11th Jud. Dists 2004]). Any post-claim IME verification requests must be made within required time constraints set forth in 11 NYCRR 65—3.5 [a], [d]; 11 NYCRR 65—3.6[b], including the initial request within 10 days of the claim’s filing (to be scheduled within 30 days of the claim’s receipt) and a “follow-up” request within 10 days of a subject’s non-appearance at the initially-scheduled IME (A.B. Med. Services PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [2d Dept App Term 2005]).

Here, even assuming that plaintiff’s July 31 delay letter meets the criteria for an initial verification request ^[FN1] , plaintiff’s delay letter sent on July 31, 2014 was later than the period [*3]allowed to seek verification under the statute. However, said tardiness is not fatal. “An insurer that requests additional verification after the 10— or 15—business—day periods but before the 30—day claim denial window has expired is entitled to verification. In these instances, the 30—day time frame to pay or deny the claim is correspondingly reduced” (Hosp. for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). 10 Business days from July 11, 2014 was July 25, 2014. As the delay letter was sent out on July 31, 2014, the 30-day time frame must be reduced by 5 days, leaving plaintiff with 25 days.

In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed (11 NYCRR 65-3.8(1)). The IME was performed on August 21, 2014 and the denial was sent on September 18, 2014, 28 days later. As the time frame to pay or deny was reduced from 30 to 25 days and the denial was sent 28 days later, the denial was untimely.

Further, on July 10, 2014 plaintiff rescheduled the IME from July 17, 2014 to August 21, 2014. Even assuming that this IME scheduling was for the purposes of verifying the July 11, 2014 claim (despite the assertion that the receipt of the claim was July 11, 2014, the reschedule letter states that it was done because the assignor had surgery) plaintiff does not provide any affidavit explaining the basis of scheduling the IME so far in the future. Generally speaking, the insurance regulations require that an IME be scheduled within a 30—calendar—day time frame from receipt of the claim (Am. Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841 [1st Dept 2015] citing W.H.O. Acupuncture, P.C. v. Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A] [App Term 2d Dept 2012]; American Tr. Ins. Co. v. Jorge, 2014 NY Slip Op. 30720[U], 2014 WL 1262582 [Sup Ct NY County 2014]; (11 NYCRR § 65—3.5(d)). Although, by consent, the parties can agree to a later time frame, here the record is completely devoid of any communication, let alone consent, or any other reason why the IME was scheduled past the 30-day frame permitted by statute. As the IME was re-scheduled past the 30-day time frame, the IME was not properly scheduled or sought and the denial was late and invalid.

However, even though the denial based upon on causal connection and medical necessity was not timely, services here were rendered after April 1, 2013, and the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65—3.8 [g]; Surgicare Surgical Assoc. v Natl. Interstate Ins. Co., 50 Misc 3d 85 [App Term 1st Dept 2015]). Although defendant initially sought $30,365.16, defendant acknowledges that appropriate amount per the New Jersey Fee Schedule is really $21,903.93. Plaintiff disagrees and states that appropriate amount would be $18,413.80, slightly more than the amount found by the arbitrator. Thus, because the denial with respect to non-fee schedule defenses was not timely and plaintiff has made no payments, defendant is entitled to at least the portion of the claim that is undisputedly pursuant to the fee schedule $18,413.80.

The difference between the two amounts is whether the portion of the claim pursuant to CPT Code 29826 and 64415 are reimbursed at 100% or 50%. Specifically, the provider billed $6,462.39 under CPT 29826. Plaintiff reduced the amount by 50% to $3,231.20 pursuant to NJ 11:3-29.5(d). Similarly, the provider billed $517.89 under CPT 64415 and plaintiff reduced the amount by 50% to $258.95 pursuant to NJ 11:3-29.5(d). Both sides have submitted the affidavits [*4]of their fee schedule/coding experts. The Court finds that pursuant to NJ Admin Code 11:3-29.4(f)(2)^[FN2] , add-on codes are exempt from the multiple procedure reduction. Therefore, CPT 29286 should be reimbursed at 100%, or $6,462.39. Similarly, the claim included a modifier for CPT 64415 and defendant should be reimbursed at 100% or $517.89. Accordingly, defendant is entitled to a total amount of $21.903.93.

It is therefore

ORDERED, that plaintiff’s motion for summary judgment is denied; and it is further

ORDERED, that defendant’s cross-motion for summary judgment is granted.

Date: March 20, 2017

David B. Cohen, JSC

Footnotes

Footnote 1: The Court makes no ruling that the delay later was a valid initial verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2d Dept 2005][holding that a delay later which did not seek verification in it did not toll the 30-day period to pay or deny]).

Footnote 2:NJ Admin Code 11:3-29.4(f)(2) states “There are two types of procedures that are exempt from the multiple procedure reduction In addition, some related procedures are commonly carried out in addition to the primary procedure. These procedure codes contain a specific descriptor that includes the words, “each additional” or “list separately in addition to the primary procedure.” These add-on codes cannot be reported as stand-alone codes but when reported with the primary procedure are not subject to the 50 percent multiple procedure reduction.” CPT 29826 is listed as an “add-on” code.

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, February 15, 2017

APPEARANCES OF COUNSEL

Gabriel & Shapiro LLC, Wantagh (Jason Moroff and Steven F. Palumbo of counsel), for appellant.

Gialleonardo, McDonald & Turchetti, New York City (Kevon Lewis of counsel), for respondent.

Ordered that 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

It is undisputed that, during claims processing, plaintiff’s attorney sent defendant a letter requesting that “all other communications relating to this claim” be sent to plaintiff’s attorney. Defendant timely mailed verification and follow-up verification requests to plaintiff but did not send these requests to plaintiff’s attorney. On appeal, plaintiff argues that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter. In the alternative, plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel. Plaintiff maintains that since defendant failed to do so, defendant is not entitled to summary judgment.

Plaintiff’s contention that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter lacks merit, as there is no such requirement, where, as here, the party from whom the verification is sought is the plaintiff,{**55 Misc 3d at 93} rather than another person or entity (see GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42, 44 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).

To the extent plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel, we disagree. Insurers are obligated to comply with the no-fault regulations, which require that both the initial and follow-up verification requests be sent to the party from whom the verification is sought (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]) and, thus, defendant cannot be penalized for sending the verification requests to plaintiff notwithstanding the request from plaintiff’s counsel (cf. St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588 [2002]). In addition, we note that if plaintiff was confused as to why the requests were sent to it or whether it needed to respond to the requests, “[a]ny confusion on the part of the plaintiff . . . should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

In light of the foregoing, we find no basis to disturb the order of the District Court.

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

[*1]

Supreme Court, Nassau County, February 1, 2017

APPEARANCES OF COUNSEL

Joseph Henig, P.C., Bellmore, for plaintiff.

Law Offices of Printz & Goldstein, Woodbury, for defendant.

The motion by the plaintiff, St. Barnabas Hospital, as assignee of Dawn Henry (motion sequence No. 01), seeking an order pursuant to CPLR 3212, granting it summary judgment against the defendant, Government Employees Insurance Company (hereinafter GEICO), and the cross motion by the defendant, GEICO (motion sequence No. 02), seeking an order pursuant to CPLR 3212, granting it summary judgment and dismissing the complaint, are determined as hereinafter provided.

This is an action to recover no-fault benefits on a hospital no-fault billing. The plaintiff, St. Barnabas, is the assignee for health-related services rendered to GEICO’s insured, Dawn Henry, during the period of April 10, 2016 through April 13, 2016, for injuries sustained as a result of a motor vehicle accident that occurred on April 10, 2016. At issue is whether the defendant, GEICO, timely and properly requested additional verification from the plaintiff, St. Barnabas, upon its receipt of proof of the claim which effectively tolls the 30-day time period within which GEICO must pay or deny the claim for such services rendered in the amount of $43,212.59.

On April 21, 2016, the plaintiff, St. Barnabas, billed the defendant, GEICO, utilizing a hospital facility form (form NF-5) and a UB-04, seeking payment of a hospital bill in the sum of $43,212.59 (see exhibit 1 attached to plaintiff’s motion). The billing was sent via certified mail, return receipt requested, and was received by the defendant, GEICO, on April 25, 2016 (see exhibit 2 attached to plaintiff’s motion). On May 16, 2016, GEICO served a request for additional verification. On May 20, 2016, St. Barnabas served a response letter acknowledging receipt of GEICO’s request wherein it objected to the validity of the request. GEICO received St. Barnabas’ response on May 23, 2016. On June 20, 2016, GEICO served a second follow-up request for additional verification. St. Barnabas never responded to GEICO’s second request. The instant action was filed shortly thereafter.

The plaintiff alleges that the defendant, GEICO, failed to either pay the hospital bill or issue a timely denial. In opposition,{**55 Misc 3d at 787} the defendant, GEICO, contends that the plaintiff failed to demonstrate its prima facie entitlement to summary judgment on the grounds that (i) the plaintiff failed to show the claims were not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit; (ii) the plaintiff’s supporting affidavit is deficient in that it cannot be demonstrated that the affiant, employed by a third-party claims administrator, has personal knowledge of the hospital’s practices or procedures and as such cannot establish that the bills are in fact business records of the hospital; and (iii) the plaintiff’s affiant failed to establish proper proof of mailing.

The defendant, GEICO, also cross-moves for summary judgment on the grounds that the plaintiff failed to provide all items requested by GEICO that were necessary to verify the claim, pursuant to 11 NYCRR 65-3.8 (a) (1), and which GEICO was entitled to receive pursuant to 11 NYCRR 65-3.5 (c). GEICO claims that the 30-day period within which the claim must be paid or denied was tolled due to its request for additional verification of the claim within 15 business days from GEICO’s receipt of proof of the claim.

Upon receipt of proof of the claim from St. Barnabas, GEICO alleges that it timely made a request for additional verification, specifically seeking a breakdown of which services constituted necessary emergency health services in order to issue appropriate payment on the claim (see aff of Kristen Savold ¶ 18 [B], annexed to defendant’s cross motion as exhibit B). In support of its cross motion, GEICO submits the State of New York Insurance Department’s Circular Letter No. 4 (2011) which partially amended section 5103 (b) (2) of the Insurance Law to prohibit a no-fault insurer from excluding from coverage necessary emergency health services rendered in a general hospital for any person who is injured as a result of operating a motor vehicle while in an intoxicated condition or while the person’s ability to operate the vehicle is impaired by the use of a drug within the meaning of Vehicle and Traffic Law § 1192. Circular Letter No. 4 further provides:

“For the purposes of compliance with Chapter 303, the Department interprets ‘necessary emergency health services’ to mean services rendered to a person by or under the supervision of a physician, paramedic, or emergency medical technician to treat the onset of sudden pain or injury and to stabilize the person, provided the person is transported{**55 Misc 3d at 788} directly from the scene of the motor vehicle accident to the general hospital. Pursuant to this interpretation, once the sudden pain or injury is treated and the person is stabilized, (generally in the emergency room) the no-fault insurance coverage ceases. In order to facilitate timely payment, a hospital should specify what portion of the bill consists of ‘necessary emergency health services.’ If the hospital does not specify what portion consists of ‘necessary emergency health services,’ then a no-fault insurer may request this information.” (See letter from GEICO to St. Barnabas dated May 16, 2016; NY St Ins Dept 2011 Circular Letter No. 4, RE: No-Fault Intoxication Coverage; Chapter 303 of the Laws of 2010, annexed to defendant’s cross motion as exhibit B.)

GEICO referenced the foregoing language from Circular Letter No. 4 in its letter requesting additional verification. GEICO specified in its request that St. Barnabas provide a “breakdown of charges up to where the patient was found to be stabilized.”

In its response, St. Barnabas stated that GEICO’s “request for a ‘breakdown of charges up to where the patient was found to be stabilized’ is not required under the insurance regulations or no fault law.” (See St. Barnabas response letter dated May 20, 2016, annexed to defendant’s cross motion as exhibit B.) St. Barnabas further responded that “[t]he patient received ‘Necessary Emergency Health Services’ during h[er] admission at the hospital.” (Id.)

The defendant, GEICO, further submits that it followed up with St. Barnabas for a second request for additional verification. To date, St. Barnabas has not responded to GEICO’s follow-up request.

GEICO also submits that it had a good faith basis for requesting additional verification of the bill at issue. In support of its cross motion, GEICO proffers the toxicology report for the insured provided by St. Barnabas with its bill, which shows that the patient had a blood alcohol level of .15% and tested positive for THC, an active ingredient in the drug marijuana, at the time of her admission to the emergency room. GEICO further proffers the physician affirmation of Dr. Kenneth Marici (see Dr. Marici affirmation and toxicology report, annexed to defendant’s cross motion as exhibit E). Based on the intoxication exclusion in GEICO’s policy, GEICO contends that the insured’s injuries are excluded from coverage (see{**55 Misc 3d at 789} policy endorsement, annexed to defendant’s cross motion as exhibit D). Thus, GEICO argues that its obligation to pay the plaintiff’s claim was limited to those items deemed “necessary emergency health services” and that it timely and properly requested additional verification from St. Barnabas in this regard.

GEICO argues that its timely request for additional verification indefinitely tolled the 30-day time period within which an insurer must pay or deny a claim until its receipt of the information requested. GEICO further argues that it would be inequitable for a provider to be rewarded for its failure to adequately respond to numerous timely requests for verification, relying upon Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]). Thus, GEICO posits that St. Barnabas’ action is premature since it failed to properly respond to GEICO’s request for verification, relying upon Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (44 AD3d 903 [2d Dept 2007]). Based on the evidence presented, GEICO seeks a determination that the hospital bill is not yet overdue and for this court to dismiss the complaint.

In opposition and reply, the plaintiff, St. Barnabas, contends that it demonstrated its prima facie entitlement to judgment as a matter of law by submitting the requisite billing form, the affidavit of its third-party biller, and confirmation that the plaintiff’s hospital bill, form NF-5, was received by the defendant. St. Barnabas further asserts that GEICO is precluded from interposing any defenses due to its failure to either pay or deny the claim within 30 calendar days after it received proof of the claim.

With regard to GEICO’s claim that it timely and properly requested additional verification, counsel for St. Barnabas mimics the hospital’s verification response letter stating that “there is no authority in the Insurance Law, No-Fault Regulations, or in case law which shows that the defendant’s verification request was proper.” (See plaintiff’s opposition to cross motion ¶ 29.) In support of its claim that the verification request was not proper, St. Barnabas’ counsel relies upon various statutory provisions that set forth the fee schedule and inpatient hospital billing pursuant to which claims must be paid.

Notably, St. Barnabas concedes that “regarding the defendant’s request for a ‘breakdown of charges up to the point where the patient was found to be stabilized,’ Insurance Law § 5103 (b) (2) was amended and took effect on January 26, 2011.” (Id.{**55 Misc 3d at 790} ¶ 44.) St. Barnabas agrees that the law was amended to prohibit insurers from excluding from coverage payment for “necessary emergency health care services” when a patient is intoxicated by alcohol or drugs. However, St. Barnabas finds untenable the defendant’s position that insurers are only required to pay for care until the patient is stabilized, claiming that GEICO has impermissibly interpreted the statutory language. St. Barnabas further submits that in this case, the patient was involved in a serious motor vehicle accident involving multiple injuries, and that “[t]his period of time was the patient’s treatment for ‘necessary emergency health care services.’ ” St. Barnabas contends that it “fully responded to the Defendant’s alleged verification requests.”

The court notes that St. Barnabas’ papers are silent as to Circular Letter No. 4 and the specific language permitting no-fault insurers to request additional information to ascertain which services are in fact “necessary emergency health services.”

Legal Analysis

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1988]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

A provider of medical services can establish a prima facie showing of entitlement to summary judgment by submitting proof that the requisite claim forms were mailed and received by the carrier and that payment is overdue (Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2d Dept 2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2d Dept 2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2d Dept 2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2d Dept 2004]). Pursuant to 11 NYCRR 65-3.8 (a) (1), “No-fault benefits are overdue if not paid within 30 calendar days after{**55 Misc 3d at 791} the insurer receives proof of claim, which shall include verification of all . . . the relevant information requested pursuant to section 65-3.5 of this Subpart” (see also Insurance Law § 5106; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). An insurer can extend this 30-day time frame by making a timely request for additional verification of the claim “within 15 business days” after receipt thereof (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2d Dept 2009]; 11 NYCRR 65-3.5 [b]).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, 49 NY2d 557 [1980], supra).

The plaintiff has failed to establish a prima facie showing that it is entitled to judgment as a matter of law on its claim to recover no-fault medical payments. The plaintiff’s claim is premature as the evidence presented demonstrates that the 30-day time period within which an insurer must pay or deny a claim has not been triggered. In turn, the plaintiff failed to sufficiently respond to the defendant’s requests for additional verification.

The plaintiff’s position that the verification request was improper because it is not required under the insurance regulations or no-fault law is without merit. The defendant, GEICO, referenced Circular Letter No. 4 dated January 12, 2011, issued by the State of New York Insurance Department, in its original request for additional verification. The purpose of the Circular Letter is to advise no-fault insurers and health insurers of the amendment of Insurance Law § 5103 (b) (2) and to interpret the regulations related thereto. While the plaintiff concedes that the law was amended in January 2011 to reflect that insurers are prohibited from excluding from coverage necessary emergency health services even where the patient was intoxicated by alcohol or drugs, the plaintiff fails to address the portion of the Circular Letter at issue here. Specifically, the plaintiff submits no argument or opposition with regard to the portion of the Circular Letter that permits a no-fault insurer to request a hospital to specify what portion of the bill consists of “necessary emergency health services.” Rather, the plaintiff claims that the statutory language does not explicitly provide as such. The court disagrees. 11 NYCRR 65-3.5 (c) provides{**55 Misc 3d at 792} that “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

The court also disagrees with the plaintiff’s contention that it fully responded to the defendant’s verification requests by merely stating, “[t]he patient received ‘Necessary Emergency Health Services’ during h[er] admission at the hospital.” The plaintiff’s response is vague in that it fails to delineate whether some, most or all of the services were in fact “necessary emergency health services.” Further, in its Circular Letter, the Insurance Department contemplated the need for hospitals to specify what portion of the bill consists of such emergency services. The Insurance Department also defined “necessary emergency health services” as sudden pain or injury that is treated until the patient is stabilized, generally in the emergency room.

In the matter sub judice, the patient was admitted to St. Barnabas for approximately three days from April 10, 2016 through April 13, 2016. The defendant, GEICO, submitted sufficient proof in admissible form showing that the patient was intoxicated by alcohol and marijuana at the time of the accident. As such, GEICO was entitled to request information concerning the breakdown of services until the patient was found to be stabilized in accordance with Insurance Law § 5103 (b) (2), as amended, and the related Circular Letter No. 4 interpreting the statute. Such information would permit GEICO to assess when the no-fault insurance coverage ceases, if at all, and the appropriate amount of the claim that must be paid.

Pursuant to 11 NYCRR 65-3.6 (b), where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification. When a no-fault medical service provider fails to respond or inadequately responds to two timely verification requests, the 30 days in which to pay or deny the claim is tolled and does not begin to run. Accordingly, any claim for payment by the medical service provider after two timely requests for verification is premature (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2d Dept 2013]).

Thus, as the defendant correctly maintains, the plaintiff’s initial claim for payment was premature and was not complete{**55 Misc 3d at 793} until the defendant received additional verification of the claim as requested (see 11 NYCRR 65-3.8 [a] [1]; [b] [3]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2d Dept 2005]).

Where, as here, the insurer presents sufficient evidence that it timely requested additional verification and the hospital fails to provide the information requested, the complaint must be dismissed as premature (St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2d Dept 2002]).

Accordingly, it is hereby ordered that the plaintiff’s motion (motion sequence No. 01) seeking summary judgment, pursuant to CPLR 3212, is denied; and it is further ordered that the defendant’s cross motion seeking summary judgment, pursuant to CPLR 3212, is granted, and the complaint is dismissed.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 7, 2016

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Ordered that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

Plaintiff commenced this action on May 6, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on May 5, 2011. The injured party, Latoya Payne, signed an assignment of benefits to plaintiff on May 6, 2011. Defendant purported to schedule an examination under oath (EUO) of the assignor to be held on July 29, 2011, and, upon the assignor’s alleged nonappearance, a follow-up EUO on September 12, 2011. Subsequent to the assignment of benefits and the scheduling of the EUOs, defendant commenced a proceeding against Latoya Payne, Tevin Jackson and two other individuals in the Supreme Court, Kings County, to compel them to appear at EUOs, asserting in the petition that they had failed to appear for two scheduled examinations. Defendant’s petition also sought declaratory relief in the event of their nonappearances at a future EUO. Plaintiff was not named as a respondent in the proceeding. The Supreme Court granted defendant’s motion, and defendant then purported to schedule a third EUO to be held on April 27, 2012. Thereafter, defendant moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Latoya Payne, Tevin Jackson and the two other individuals, and argued that they had failed to appear for the third EUO. By order dated December 5, 2012, the Supreme Court granted defendant’s motion and declared that all first-party coverage for no-fault benefits was disclaimed as to Latoya Payne and the three other individuals, or any assignee under the subject policy with respect to the motor vehicle collision at issue.{**54 Misc 3d at 56}

On August 21, 2013, defendant moved in the Civil Court for summary judgment dismissing the complaint on the grounds that defendant is not obligated to pay assigned first-party no-fault benefits to plaintiff in light of the Supreme Court order and that the assignor had failed to appear for scheduled EUOs. Plaintiff opposed the motion, arguing, among other things, that it is not bound by the declaratory judgment rendered in the Supreme Court proceeding and that defendant failed to establish that it had timely and properly scheduled EUOs. By order entered May 1, 2014, the Civil Court granted defendant’s motion. We reverse.

Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO. Thus, defendant failed to demonstrate entitlement to summary judgment dismissing the complaint on either ground.{**54 Misc 3d at 57}

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

Solomon, J.P., Weston and Elliot, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, November 25, 2016

APPEARANCES OF COUNSEL

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Thomas Tona, P.C., St. James (Alison Berdnik of counsel), for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

After the provider’s claim for assigned first-party no-fault benefits had been denied by the insurer due to the assignor’s failure to appear at duly scheduled independent medical examinations (IMEs), the provider submitted the claim to arbitration, pursuant to Insurance Law § 5106 (b). The IME scheduling letters that had been sent to the assignor stated that he would be reimbursed for any proven loss of earnings and reasonable transportation expenses incurred in complying with the IME request.^[FN*] The arbitrator determined that the IME scheduling letters were defective because they called for “proven” loss of earnings and did not track the language of the regulation, and found that, as a result, proper notice was not effectuated. The arbitrator awarded the provider the principal sum of $520.20. The insurer appealed the adverse decision to a master arbitrator, who vacated the arbitrator’s award in favor of the provider, upon a determination that the award “was not supported by sufficient evidence and was irrational, arbitrary and capricious and incorrect as a matter of law,” thereby, in effect, finding for the insurer.

{**54 Misc 3d at 33}The provider then commenced this proceeding to vacate the master arbitrator’s award, contending that the master arbitrator had exceeded his power, within the meaning of CPLR 7511 (b) (1) (iii), because he had performed an independent review of the evidence, assessed its [*2]credibility and made his own factual determinations. The insurer, by cross petition, sought to confirm the master arbitrator’s award. By order dated April 22, 2015, from which the insurer appeals, the District Court granted the provider’s petition and denied so much of the insurer’s cross petition as sought to confirm the master arbitrator’s award, finding that the master arbitrator had exceeded his authority by reviewing factual issues which had already been decided by the arbitrator and had impermissibly substituted his own factual determination for that of the arbitrator. We reverse.

Judicial review of a master arbitrator’s authority to vacate an award under Insurance Law § 5106 derives from CPLR 7511 (b) (1) (iii) and involves the question of whether the master arbitrator has exceeded his or her power (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 210 [1981]; see also Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]). A master arbitrator is empowered to vacate an arbitration award based upon most grounds set forth in CPLR 7511 (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 210; see also 11 NYCRR 65-4.10 [a] [1]) or based upon the ground that the arbitration award “was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65-4.10 [a] [4]; see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). The power of a master arbitrator to review factual and procedural issues (unlike substantive law issues) is limited to “whether the arbitrator acted in a manner that was arbitrary and capricious, irrational or without a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). A master arbitrator “exceeds his statutory power by making his own factual determination, by reviewing factual and procedural errors committed during the course of the arbitration, by weighing the evidence, or by resolving issues such as the credibility of the witnesses” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [1994]; see also Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). If, however, the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of{**54 Misc 3d at 34} substantive law, the determination of the master arbitrator must be upheld unless it is irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]).

Contrary to the provider’s contention, we find that the master arbitrator did not exceed the scope of his authority, as he did not weigh or independently evaluate issues of credibility or engage in any factual analysis. Rather, his legal analysis of the arbitrator’s determination was well within the scope of his authority to review and correct an error of law made by the arbitrator (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 231; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d at 211). Moreover, “applying the law to a given set of facts is well within the province of a master arbitrator, even if his conclusion differs from that of the arbitrator” (Martinez v Metropolitan Prop. & Liab. Ins. Co., 146 AD2d 610, 611 [1989]). Here, the master arbitrator determined that the use of the word “proven” in the IME scheduling letters did not render such letters ineffective, notwithstanding the fact that the word “proven” does not appear in 11 NYCRR 65-3.5 (e), and that proper notice of the scheduled IMEs was, therefore, effectuated. As the master arbitrator’s determination was not irrational (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d at 232), the District Court erred in granting the provider’s petition to vacate the master arbitrator’s award and in denying the insurer’s cross petition to confirm the master arbitrator’s award.

Accordingly, the order, insofar as appealed from, is reversed, the petition to vacate the master arbitrator’s award is denied and so much of the cross petition as sought to confirm the master arbitrator’s award is granted.

We incidentally note that a proceeding to confirm or vacate an arbitration award is a special proceeding brought pursuant to CPLR article 4, and must terminate in a judgment rather than an order (see CPLR 411).

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.

Footnotes

Footnote *:11 NYCRR 65-3.5 (e) provides: “The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request.”

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

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

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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the insurance policy covering the vehicle allegedly involved in the March 26, 2010 motor vehicle accident had been terminated on March 16, 2010, prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion for summary judgment dismissing the complaint and implicitly denied plaintiff’s motion for summary judgment.

In support of its cross motion, defendant submitted its senior field support representative’s affidavit accompanied by documents which, together, demonstrated that, on December 17, 2009, in compliance with Vehicle and Traffic Law § 313 (1), defendant had mailed a letter to the policyholder notifying it that, due to “missing information or no response to our underwriting inquiry,” the policy would terminate on March 16, 2010. However, although the affidavit referred to an annexed{**54 Misc 3d at 48} document purportedly showing a record of defendant’s March 17, 2010 notification to the Department of Motor Vehicles (DMV) of defendant’s March 16, 2010 termination of the policy, these submissions did not conclusively establish, as a matter of law, that defendant’s notice of termination had been properly filed with the DMV (see e.g. Matter of Government Empls. Ins. Co. v Barthold, 194 AD2d 724 [1993]). As defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of termination, upon which its defense is based, with the DMV within 30 days of the effective date of the policy’s termination, as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]), defendant did not show that the cancellation was effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.

With respect to plaintiff’s motion for summary judgment, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either that the claims 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 timely denials 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]). Thus, 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.

Weston, J.P., Aliotta and Elliot, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 21, 2016

APPEARANCES OF COUNSEL

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondent.

Ordered that the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion in accordance with the decision herein.

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 barred by virtue of a November 21, 2011 judgment which had been entered against plaintiff in a declaratory judgment action in the Supreme Court, Nassau County. Plaintiff cross-moved for summary judgment. By order dated April 23, 2014, the Civil Court (Robin S. Garson, J.) denied defendant’s motion and granted plaintiff’s cross motion, directing plaintiff to enter judgment in the principal sum of $556.78, plus statutory interest and attorney’s fees. In July 2014, plaintiff submitted a proposed judgment in the total sum of $988.34. A judgment was ultimately entered on September 19, 2014 in the sum of $993.34.

In August 2014, prior to the entry of judgment in this action, defendant moved for summary judgment dismissing the complaint, as the amount which was due and owing had been satisfied, or, in the alternative, in the event that a judgment had been entered while defendant’s motion was pending, for an order granting it a satisfaction of such entered judgment, pursuant to CPLR “5020 (c),”^[FN*] and plaintiff opposed the motion. By order entered April 23, 2015, the Civil Court denied defendant’s{**54 Misc 3d at 37} motion in its entirety on the ground that it was an improper successive motion for summary judgment.

Although defendant’s second motion sought summary judgment dismissing the complaint, defendant sought such relief only in the event that no judgment had been entered while its motion was pending. Since a judgment had been entered on September 19, 2014, defendant’s request for primary relief in the form of summary judgment became academic, and, thus, the branch of defendant’s motion seeking the alternative relief requested, i.e., for an order, pursuant to CPLR 5021 (a) (2), directing the entry of a satisfaction of judgment, became operative. However, in denying defendant’s motion in its entirety, the Civil Court did not consider the merits of the branch of defendant’s motion seeking the alternative relief of the entry of a satisfaction of judgment. Consequently, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is modified by vacating so much thereof as denied the branch of defendant’s motion seeking the entry of a satisfaction of judgment, and the matter is remitted to the Civil Court for a new determination of that branch of defendant’s motion.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Footnotes

Footnote *:In the appellate brief, defendant states that it had made a “scrivener’s error” in misciting the applicable CPLR provision, and had actually sought relief under CPLR 5021 (a) (2).