Appellate Division, First Department
Matter of State Farm Mut. Auto. Ins. Co. v Hernandez, 95 AD3d 574 (1st Dept. 2012)
Respondent Hernandez, a New York resident, was involved in an accident in New Jersey
with a Freightliner tractor trailer driven by additional respondent Byron. Hernandez filed a
demand with the American Arbitration Association against petitioner State Farm Mutual
Automobile Insurance Company, her insurer, seeking to arbitrate her uninsured motorist claim.
State Farm reported the claim to additional respondent Lincoln General Insurance Company,
which had issued a policy to the Association of Independent Drivers of America. Byron is a
certificate holder of the policy. Lincoln General disclaimed coverage on the ground that Byron
was engaged in a business pursuit at the time of the accident. It invoked an exclusion in its
"non-trucking" policy, which excluded from coverage an insured vehicle that was being used for
a business purpose.
State Farm, relying on Royal Indem. Co. v Providence Washington Ins. Co. (92
NY2d 653 [1998]), argues that the exclusion is void as against public policy, as it violates New
York law provisions requiring owners or operators of vehicles used or operated in this state to be
financially liable for injuries or damages caused by an accident arising out of use of the vehicle
(see Vehicle and Traffic Law § 388 [1]; Insurance Law § 3420 [e]). Lincoln
General counters with an argument raised for the first time on
appeal, that New York law does not apply in interpreting the policy. Lincoln General contends
the accident occurred in New Jersey, Lincoln General is located in Pennsylvania, the Association
of Independent Drivers of America is located in Florida, the owner of the truck is located in
Texas, Byron was hauling a trailer owned by a Texas corporation, and Byron resides in Texas.
Although Lincoln General asserts on appeal that the truck is not principally garaged or used
in New York, there is no evidence in the record to support that claim. Moreover, Lincoln General
has not indicated where the policy was issued or delivered or where the truck was principally
operated or garaged. As such, the record is insufficient to determine whether New York law is
inapplicable. Accordingly, we remand the matter to Supreme Court for a determination of
Byron's insurance status (see Matter of Aetna Cas. & Sur. Co. [Bruton], 45 NY2d 871
[1978], revg on the dissenting mem at 58 AD2d 551, 553-554 [1977]; Matter of
American Intl. Adj. Co. [Walker], 111 AD2d 684 [1985]). In addition to issues it deems
necessary to make such a determination, the court is to determine whether New York law applies
in interpreting Lincoln General's policy. If New York law governs, then Lincoln General's policy
is to be interpreted in accordance with Royal Indem. Co. v Providence Washington Ins.
Co. (92 NY2d 653 [1998]). If the court determines that the laws of a state other than New
York apply, then it must also be determined whether the trucking exclusion bars coverage to
Byron under that state's law.
Appellate Division, Second Department
Matter of Government Employees Ins. Co. v Phillip, 2012 NY Slip Op 05966 (2nd Dept. 2012)
Allstate concedes that GEICO made a prima facie showing at the hearing
that Allstate had issued a policy of insurance that was in existence at
the time of the accident. As a result, the burden then shifted to
Allstate to establish that it had validly cancelled the subject policy
prior to the accident date (see Matter of Mercury Ins. Group v Ocana, 46 AD3d 561).
Vehicle and Traffic Law § 313 governs the procedures which an insurance
carrier must follow in order to properly cancel an automobile insurance
policy. Vehicle and Traffic Law § 313(2)(a) requires an insurance
carrier to file with the Commissioner of Motor Vehicles a notice of
cancellation within 30 days after the cancellation of an automobile
insurance policy. Failure to strictly comply with this provision results
in the termination of coverage being invalid as to third parties (see Matter of Progressive [*2]Northeastern Ins. Co. v Barnes, 30 AD3d 523; Matter of Progressive N. Ins. Co. v White, 23 AD3d 477).
The evidence adduced at the hearing did not demonstrate that Allstate
complied with this provision when it terminated Gaspard's policy. Thus,
the termination of coverage by Allstate was not effective with respect
to the claim made by Phillip arising out of the April 13, 2009, accident
(see Matter of Chubb Group of Ins. Co. v Williams, 14 AD3d 561).
Accordingly, the petition to permanently stay arbitration pursuant to
the uninsured motorist provisions of the GEICO policy should have been
granted.
Hasbani v Nationwide Mut. Ins. Co., 2012 NY Slip Op 05911 (2nd Dept. 2012)
While the Policy was in force the
plaintiff Sylvia Safina-Hamadani was involved in an automobile accident
while operating a vehicle owned by Hasbani, and a personal injury
action was commenced against Hasbani and Safina-Hamadani (hereinafter
together the plaintiffs). The plaintiffs filed a claim with Nationwide
for coverage under the Policy. After an investigation, Nationwide denied
coverage because the vehicle Safina-Hamadani was driving at the time of
the accident was not covered by GEICO policy number 40819642258, but
rather was covered under a different GEICO policy, number 4124247364.
Nationwide took the position that the Policy only covered vehicles
covered under GEICO policy number 40819642258. The plaintiffs then
commenced this action for a judgment declaring that Nationwide was
required to defend and indemnify them in the underlying personal injury
action.
The plaintiffs moved for summary judgment and Nationwide
cross-moved for summary judgment. The Supreme Court granted the
plaintiffs' motion for summary judgment and denied Nationwide's cross
motion. Nationwide appeals and we reverse.
The Supreme Court erred in denying Nationwide's cross motion for
summary judgment. Nationwide met its initial burden of establishing its
entitlement to judgment as a matter of law by demonstrating that the
plaintiffs are not entitled to defense and indemnification because GEICO
policy number 4124247364 was not listed as one of the "Required
Underlying Insurance Coverages" in the Policy, so vehicles covered under
that GEICO policy were not covered under the Policy (see York Restoration Corp. v Solty's Constr., Inc., 79 AD3d 861, 863; see also Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864-865). In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).
Contrary to the plaintiffs' contentions, the provisions of the
umbrella policy were clear and unambiguous, and did not apply to any and
all automobile accidents and liabilities, including those outside of
the "Required Underlying Insurance Coverages" named in the Policy (see United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232; Labate v Liberty Mut. Ins. Co., 45 AD3d 811,
812). Moreover, a disclaimer pursuant to Insurance Law § 3420(d) is
unnecessary when a claim does not fall within the coverage terms of an
insurance policy (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188). An insurer is not required to deny coverage where none exists (see Hargob Realty Assoc., Inc. v Fireman's Fund Ins. Co., 73 AD3d 856,
858). Since the Policy did not provide coverage to the plaintiffs with
regard to the vehicle involved in the accident, requiring payment of a
claim upon a failure to timely disclaim would create coverage where it
never existed (see Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d at 188).
Ramsarup v Rutgers Cas. Ins. Co., 2012 NY Slip Op 05812 (2nd Dept. 2012)
As for the plaintiffs' fraud cause of action, contrary to the Supreme
Court's determination, Lyons and Kammas failed to make a prima facie
showing of their entitlement to judgment as a matter of law, as a lack
of privity of contract between the parties does not bar recovery for
claims sounding in fraud (see e.g. Binyan Shel Chessed, Inc. v Goldberger Ins. Brokerage, Inc., 18 AD3d 590).
Additionally, the Supreme Court should not have considered the
contention that the plaintiffs failed to allege fraud with sufficient
particularity, as Lyons and Kammas raised that contention for the first
time in reply papers (see Kearns v Thilburg, 76 AD3d 705, 708).
As for the plaintiffs' negligent misrepresentation cause of
action, in order to prevail on a cause of action sounding in negligent
misrepresentation, a plaintiff is required to demonstrate "(1) the
existence of a special or privity-like relationship imposing a duty on
the defendant to impart correct information to the plaintiff; (2) that
the information was incorrect; and (3) reasonable reliance on the
information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144,
148). Here, as the Supreme Court correctly determined, Lyons and Kammas
established, prima facie, that they lacked privity of contract with the
plaintiffs, and had no special relationship with the plaintiffs which
approached privity, and the plaintiffs failed to raise a triable issue
of fact in opposition (see Parrott v Coopers & Lybrand, 95 NY2d 479, 483-484).
Utica Mut. Ins. Co. v Government Employees Ins. Co., 2012 NY Slip Op 05816 (2nd Dept. 2012)
Pursuant to Insurance Law § 3420(d)(2), an insurer seeking to deny
coverage of a claim involving death or bodily injury must give written
notice "as soon as is reasonably possible." "A disclaimer is unnecessary
when a claim does not fall within the coverage terms of an insurance
policy" (Markevics v Liberty Mut. Ins. Co., 97 NY2d 646, 648).
"Conversely, a timely disclaimer pursuant to Insurance Law § 3420(d) is
required when a claim falls within the coverage terms but is denied
based on a policy exclusion" (id. at 648-649). Here, the
defendant, Government Employees Insurance Company (hereinafter GEICO),
sought to disclaim coverage under the "business pursuits" provision of
its policy, which "constitutes an exclusion [from coverage] rather than a
limitation of coverage" (Matter of Transportation Ins. Cos. v Sellitto, 267 AD2d 462, 463; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 978, 981). Accordingly, the Supreme Court properly determined that GEICO was under a duty to disclaim coverage in a timely manner.
Further, under the circumstances of this case, GEICO's
disclaimer, issued approximately 21 months after it received notice of
the accident from its insured, was not issued as soon as was reasonably
possible (see Matter of American Express Prop. Cas. Co. v Vinci, 18 AD3d 655, 656; Moore v Ewing, 9 AD3d 484, 488; Matter of Colonial Penn Ins. Co. v Pevzner, 266 AD2d 391), and therefore GEICO is not entitled to rely on the "business pursuits" exclusion of its policy.
We also agree with the Supreme Court's determination that an
umbrella policy of insurance issued by the plaintiff Utica Mutual
Insurance Company (hereinafter Utica) is excess to the GEICO umbrella
policy at issue in this matter. "[A]n insurance policy which purports to
be excess coverage but contemplates contribution with other excess
policies or does not by the language used negate that possibility must
contribute ratably with a similar policy, but must be exhausted before a
policy which expressly negates contribution with other carriers, or
otherwise manifests that it is intended to be excess over other excess
policies" (State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369, 375-376; see Stout v 1 E. 66th St. Corp., 90 AD3d 898).
Here, the GEICO policy states that it is "excess over any insurance,"
without any reference to contribution, whereas the Utica policy states
that it "is excess over, and shall not contribute with any of the other
insurance, whether primary, excess, contingent or on any other basis."
Accordingly, since the Utica policy expressly negates contribution and
the GEICO policy does not, the Supreme Court properly determined that
the GEICO policy must be exhausted first (see State Farm Fire & Cas. Co. v LiMauro, 65 NY2d at 375-376; Vassar Coll. v Diamond State Ins. Co., 84 AD3d 942, 945).
Ural v Encompass Ins. Co. of Am., 97 AD3d 562 (2nd Dept. 2012)
Contrary to the
Supreme Court's determination, the plaintiff's third cause of action, as amplified by the affidavit
and documents he submits in opposition to the motion, states a cognizable cause of action to
recover damages for unfair practices under General Business Law § 349, including a
general practice of inordinately delaying the settlement of insurance claims against policyholders
(see Wilner v Allstate Ins. Co., 71
AD3d 155, 161 [2010]; Acquista v New York Life Ins. Co., 285 AD2d 73, 82
[2001]). Accordingly, the Supreme Court erred in granting that branch of Encompass's motion
which was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action insofar as asserted
against it. In addition, contrary to Encompass's contention, a claim for punitive damages may be
asserted in the context of a cause of action predicated upon an alleged violation of General
Business Law § 349 (see Wilner v Allstate Ins. Co., 71 AD3d at 167).
Encompass also moved for summary judgment dismissing the third cause of action insofar as
asserted against it. However, the Supreme Court did not decide that branch of Encompass's
motion. In the interest of judicial economy, we hold that the branch of Encompass's motion
which was for summary judgment dismissing the third cause of action insofar as asserted against
it must be denied. Not only was that branch of the motion premature, having been made in the
earliest phase of discovery in this action (see Elbaz v New York City Hous. Auth., 90 AD3d 986 [2011]), but
Encompass's attorney's affirmation and exhibits were insufficient to establish its prima facie
entitlement to judgment as a matter of law with respect to that cause of action (see Alvarez v
Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,
64 NY2d 851, 853 [1985]; Sellino v
Kirtane, 73 AD3d 728 [2010]; Lampkin v Chan, 68 AD3d 727 [2009]).
The Supreme Court also erred in granting that branch of Encompass's motion which was
pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action to the extent it sought to
recover damages for violations of Insurance Law § 2601. Contrary to the Supreme Court's
determination and Encompass's contention, the plaintiff did not seek to add a separate cause of
action alleging violations of Insurance Law § 2601 but, rather, sought to amplify his cause
of action to recover damages for breach of contract with allegations of such violations (see
Bristol Harbour Assoc. v Home Ins. Co., 244 AD2d 885 [1997]).
***
With respect to the parties' discovery issues, CPLR 3101 (a) broadly mandates "full
disclosure of all matter material and necessary in the prosecution or defense of an action." This
provision is liberally interpreted in favor of disclosure (see Kavanagh v Ogden Allied
Maintenance Corp., 92 NY2d 952, 954 [1998]; Allen v Crowell-Collier Publ. Co., 21
NY2d 403, 406 [1968]; Matter of
Skolinsky, 70 AD3d 845 [2010]; Riverside Capital Advisors v First Secured Capital
Corp., 292 AD2d 515 [2002]). However, the discovery sought must be relevant to the issues
at bar, with the test employed being "usefulness and reason" (Allen v Crowell-Collier Publ.
Co., 21 NY2d at 406). Regarding an entire set of discovery demands which are "palpably
improper in that they are overbroad, lack specificity, or seek irrelevant or confidential
information, the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22
AD3d 620, 621 [2005]). "The burden of serving a proper demand is upon counsel, and it is
not for the courts to correct a palpably bad one" (id. at 621 [internal quotation marks
omitted]).
Here, the plaintiff's discovery demands included production of Encompass's entire claim file
for the subject water damage. The plaintiff asserts that Encompass only produced part of the
claim file. In response, Encompass asserts that it withheld only those parts of the claim file that
were produced in anticipation of litigation and thus were protected by work product privilege (see Veras Inv. Partners, LLC v Akin Gump
Strauss Hauer & Feld LLP, 52 AD3d 370 [2008]). However, the party asserting the
privilege that material sought through discovery was prepared exclusively in anticipation of
litigation or constitutes attorney work product bears the burden of demonstrating that the material
it seeks to withhold is immune from discovery (see Koump v Smith, 25 NY2d 287, 294
[1969]) by identifying the particular material with respect to which the privilege is asserted and
establishing with specificity that the material was prepared exclusively in anticipation of
litigation (see Chakmakjian v NYRAC, Inc., 154 AD2d 644, 645 [1989]; Crazytown
Furniture v Brooklyn Union Gas Co., 145 AD2d 402 [1988]). Here, Encompass's attorney's
conclusory assertions were insufficient to satisfy this burden (see Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 648 [2004];
see also Agovino v Taco Bell 5083, 225 AD2d 569 [1996]). Accordingly, the Supreme
Court should have granted that branch of the plaintiff's motion which was to compel Encompass
to produce the documents contained in the plaintiff's claim file to the extent of directing
Encompass to provide the Supreme Court with a detailed privilege log (see CPLR 3122;
Clark v Clark, 93 AD3d 812
[2012]), and the matter must be remitted to the Supreme Court, Nassau County, for an in camera
review of the allegedly privileged documents.
***
Under the circumstances of this case, Encompass was not entitled to a protective order
(see CPLR 3103).
Matter of Progressive N. Ins. Co. v Foss, 96 AD3d 855 (2nd Dept. 2012)
The petitioner commenced this proceeding to temporarily stay arbitration of a claim for
supplementary uninsured/underinsured motorist (hereinafter SUM) benefits pending the
completion of certain discovery permitted by the subject insurance policy. The Supreme Court
improvidently exercised its discretion in granting the petition to the extent of staying the
arbitration pending the completion of certain discovery, and denying the appellants' motion to
dismiss the petition. The petitioner had ample time to seek the desired discovery before
commencing the proceeding, and unjustifiably failed to do so (see Matter of Government Empls. Ins. Co.
v Mendoza, 69 AD3d 623, 624-625 [2010]; Matter of State-Wide Ins. Co. v Womble, 25 AD3d 713, 713-714
[2006]; Matter of New York Cent. Mut.
Fire Ins. Co. v Gershovich, 1 AD3d 364, 365 [2003]; Matter of Government Empls.
Ins. Co. v Rosenfarb, 306 AD2d 478, 478-479 [2003]).
Garnar v New York Cent. Mut. Fire Ins. Co., 96 AD3d 715 (2nd Dept. 2012)
To prevail on its motion for summary judgment dismissing the complaint, the defendant was
required to establish its entitlement to judgment as a matter of law by demonstrating that the
plaintiffs' loss was not the result of vandalism (see Wai Kun Lee v Otsego Mut. Fire Ins. Co., 49 AD3d 863, 864
[2008]; see also Lobell v Graphic Arts
Mut. Ins. Co., 83 AD3d 911, 912-913 [2011]). In construing an insurance contract, the
tests to be applied are "common speech" (Ace Wire & Cable Co. v Aetna Cas. & Sur.
Co., 60 NY2d 390, 398 [1983]) and "the reasonable expectations of the average insured upon
reading the policy" (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326-327
[1996]; see NIACC, LLC v Greenwich
Ins. Co., 51 AD3d 883, 884 [2008]; Penna v Federal Ins. Co., 28 AD3d 731, 732 [2006]). "The
common meaning of the term 'vandalism' is the 'malicious or ignorant destruction of public or
private property' " (Wai Kun Lee v Otsego Mut. Fire Ins. Co., 49 AD3d at 865, quoting
Webster's New World Dictionary [2d ed 1978]; see MDW Enters. v CNA Ins. Co., 4
AD3d 338, 338 [2004]). Moreover, even if the term "vandalism" is susceptible of two reasonable
interpretations, and is therefore ambiguous, it must be construed in favor of the insured (see
Wai Kun Lee v Otsego Mut. Fire Ins. Co., 49 AD3d at 865).
Here, the defendant failed to meet its prima facie burden
of establishing, as a matter of law, that the plaintiffs' loss resulted from a cause other than
vandalism (id.). This failure warranted the denial of the defendant's motion, regardless of
the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853 [1985]).
Fox v Allstate Ins. Co., 95 AD3d 1274 (2nd Dept. 2012)
By citing the insurance policy's two-year limitations period, the defendant satisfied its burden
of producing evidence which, if uncontroverted, was sufficient to warrant judgment in its favor
as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]). In
opposition, however, the plaintiff raised triable issues of fact as to whether the defendant, by
engaging in conduct which allegedly lulled the plaintiff into not pursuing her rights under the
insurance contract upon the belief that the defendant would satisfy her claim, waived its right to
assert, or was estopped from asserting, the period of limitations as a defense (see Greenpoint
Bank v Security Mut. Ins. Co., 247 AD2d 583 [1998]; Burke v Nationwide Ins. Co.,
108 AD2d 1098 [1985]; cf. Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988];
McGivney v Liberty Mut. Fire Ins. Co., 305 AD2d 559 [2003]; Minichello v Northern
Assur. Co. of Am., 304 AD2d 731 [2003]).
Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306 (2nd Dept. 2012)
In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact. A
presumption of receipt was created by the certified mail receipt and the signed return receipt
card, such that the defendant's mere denial of receipt was insufficient to raise a triable issue of
fact (see New York & Presbyt. Hosp. v
Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins.
Co., 40 AD3d 981, 982-983 [2007]). Further, the defendant's failure to respond to the
no-fault billing within the requisite 30-day period precluded it from raising the defenses that it
was not provided with timely notice of the underlying motor vehicle accident or proof of claim
(see Bayside Rehab & Physical Therapy,
P.C. v GEICO Ins. Co., 24 Misc 3d 542, 545 [2009]; Rockman v Clarendon Natl.
Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U] [Civ Ct, Richmond County
2008]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d
142[A], 2008 NY Slip Op 52442[U] [App Term, 2d Dept 2008]). Finally, although the defense
of lack of coverage is not precluded by the defendant's failure to pay or deny the subject no-fault
claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop.
Cas. Ins. Co., 9 NY3d [*2]312, 318 [2007]; Central Gen.
Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), here, the defendant's
submissions were insufficient to raise triable issues of fact with respect to a lack of coverage
defense (see Mercury Cas. Co. v Encare,
Inc., 90 AD3d 475 [2011]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 24
Misc 3d 138[A], 2009 NY Slip Op 51584[U] [App Term, 2d Dept 2009]).
Matter of Government Employees Ins. Co. v Allen, 95 AD3d 1322 (2nd Dept. 2012)
Contrary to Infinity's contention, the Supreme Court correctly found that Infinity did not validly disclaim coverage on the ground that it rescinded the
subject policy upon learning, after the accident occurred, that Pemberton had died in 2003.
"Vehicle and Traffic Law § 313 (1) (a) supplants an [insurer's] common-law right to cancel
a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates
that the cancellation of a contract pursuant to its provisions may only be effected prospectively.
This provision places the burden on the insurer to discover any fraud before issuing the policy, or
as soon as possible thereafter, and protects innocent third parties who may be injured due to the
insured's negligence" (Matter of Global
Liberty Ins. Co. of NY v Pelaez, 84 AD3d 803, 803 [2011] [internal quotation marks
and citations omitted]; see Matter of
Metlife Auto & Home v Agudelo, 8 AD3d 571, 572 [2004]; Matter of Integon Ins.
Co. v Goldson, 300 AD2d 396, 397-398 [2002]).
However, the Supreme Court erred in determining, as a matter of law, that Infinity did not
validly disclaim coverage on the ground that Jordan was operating the vehicle without
permission of the owner at the time of the accident. The evidence submitted by Infinity in
opposition to the petition, which included the transcript of Jordan's statement, raised a triable
issue of fact as to whether Jordan lacked express or implied permission to use the vehicle (see
Matter of Fiduciary Ins. Co. of Am. v Morris, 84 AD3d 802 [2011]; Matter of State Farm
Mut. Auto. Ins. Co. v Fernandez, 23 AD3d 480, 481 [2005]; Matter of Aetna Cas. & Sur.
Co. v Arhaniotis, 202 AD2d 497, 498 [1994]). The fact that Pemberton had died seven years
prior to the accident does not conclusively resolve this issue in favor of Infinity, since after
Pemberton's death, the vehicle could have come under the ownership of another individual who
gave Jordan express or implied permission to operate it. Accordingly, the matter must be
remitted to the Supreme Court, Queens County, for a hearing on the issue of whether the subject
vehicle was being operated without permission of the owner at the time of the accident and,
thereafter, for a new determination of the petition, and the arbitration must be temporarily stayed
pending the hearing and determination.
Appellate Term, First Department
Cliffside Park Imaging v Preferred Mut. Ins. Co., 2012 NY Slip Op 51754(U) (App. Term, 1st 2012)
Summary judgment dismissal of plaintiff's no-fault first-party
benefit claim was warranted on the full record developed below. "The
standard for determining residency for purposes of insurance coverage
requires something more than temporary or physical presence and requires
at least some degree of permanence and intention to remain" (Vela v Tower Ins. Co. of NY, 83 AD3d 1050, 1051 [2011], quoting Matter of Allstate Ins. Co. [Rapp], 7 AD3d 302, 303 [2004]). The mere intention to reside at certain premises is not sufficient (see Vela v Tower Ins. Co. of NY, 83 AD3d at 1051).
Here, defendant's moving submission, including the properly considered (see Zalot v Zieba, 81 AD3d 935, 936 [2011], lv denied
17 NY3d 703 [2011]) transcripts of the examinations under oath ("EUO")
of plaintiff's assignor and her husband, the named insured, established
prima facie that the insured fraudulently procured insurance coverage by
falsely listing a Pearl River, New York house owned by his father as
his residence on the insurance application, when the insured and his
wife (the assignor) actually resided, with their infant child, in an
apartment in Cliffside Park, New Jersey, an address listed by the couple
on their tax returns. In opposition, plaintiff, as assignee "stand[ing]
in the shoes" of its assignor (see Long Is. Radiology v Allstate Ins. Co.,
36 AD3d 763, 765 [2007]), failed to raise a triable issue of fact.
Plaintiff's reliance on a snippet of the insured's EUO testimony, in
which he stated conclusorily that he and his family merely lived
"part-time" in the Cliffside Park apartment, was plainly insufficient to
defeat summary judgment.
Darlington Med. Diagnostic, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 51756(U) (App. Term, 1st 2012)
In granting the defendant-insurer's motion for summary judgment
dismissing the within first-party no-fault action, we note that
plaintiff's third-party biller acknowledged receipt of defendant's
follow-up verification demand, but failed to explain why it took no
responsive action. Moreover, contrary to the view expressed below and as
plaintiff now expressly acknowledges, plaintiff neither claimed nor
showed that it responded in any way to defendant's properly issued
verification demands.
Darlington Med. Diagnostic, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 51758(U) (App. Term, 1st 2012)
Summary judgment dismissal of plaintiff's claim for assigned first-party
no-fault benefits is warranted on the full record now before us, which
shows that the defendant insurer timely and properly mailed its initial
and follow-up verification demands to the plaintiff medical provider at
the street address listed in its claim form. Indeed, plaintiff, in
opposing summary judgment, did not meaningfully challenge the procedures
followed by defendant in mailing the verification demands or deny its
receipt of defendant's demands; instead, plaintiff maintained that
defendant's verification demands were not received by its third-party
biller, an entity known as Spendan Service Corp., which apparently
conducts its business from a designated suite at the same street address
from which plaintiff operates its medical facility. However, the
conclusory denial of receipt of the verification demands advanced by
plaintiff's third-party biller was insufficient to raise a triable issue
as to the efficacy of defendant's mailings. Even assuming, arguendo,
that the medical biller can properly be viewed, on this record, as
plaintiff's authorized representative for the purposes of receiving and
responding to further verification requests (see 11 NYCRR 65-3.5[a],[c]; see and compare St. Vincent's Hosp. v American Tr. Ins. Co.,
299 AD2d 338, 339-340 [2002]), plaintiff failed to make any showing
that the verification demands were not received by the billing entity
due to the absence from the mailings of its (the biller's) suite number
or otherwise (see Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]).
Pomona Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 2012 NY Slip Op 51684(U) (App. Term, 1st 2012)
This action, seeking recovery of first-party no-fault benefits, is not
ripe for summary dismissal, since defendant MVAIC failed in its burden
to establish, prima facie, that plaintiff's assignor was not a
"qualified person" entitled to no-fault coverage (see Englington Med., PC v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667
[2010]. The conflicting statements as to potential insurance coverage
set forth in plaintiff's assignor's notice of intention to file a claim
against MVAIC, while perhaps sufficient to raise a triable issue as to
coverage, was insufficient to meet defendant's threshold burden to
establish that there was a policy of insurance in effect at the time of
the accident (see Pomona Med. Diagnostic v MVAIC, 30 Misc 3d 132[A],2011 NY Slip Op 50042[U][App Term, 1st Dept 2011]).
Triangle R. Inc. v Progressive Ins. Co., 2012 NY Slip Op 51685(U) (App. Term, 1st 2012)
The defendant-insurer's notice of deposition—pertaining to its defense
of provider fraud based on fraudulent billing practices—was palpably
improper (see Dhue v Midence, 1 AD3d 279 [2003]), since defendant
is precluded from raising this defense due to its failure to timely
deny plaintiff's no-fault first-party claim within the 30-day statutory
period (see Fair Price Med. Supply Corp. v Travelers Indem. Co.,
10 NY3d 556, 565 [2008]). This is so irrespective of defendant's claim
that the fraudulent billing was part of a widespread scheme to defraud
insurers (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 285 [2007], affd 10 NY3d 556 [2008]).
Bronx Expert Radiology, P.C. v Motor Veh. Acc., Indem. Corp., 2012 NY Slip Op 51617(U) (App. Term, 1st 2012)
In opposition to plaintiff's prima facie showing of entitlement to summary judgment on its
claim for assigned first-party no-fault benefits, defendant MVAIC failed to raise a triable issue of
fact. "The burden is on MVAIC to prove its lack-of-coverage defense" (Matter of MVAIC v Interboro Med. Care &
Diagnostic PC, 73 AD3d 667 [2010]). On this record, and given the denial of coverage
letter from the putative insurer – stating that the vehicle which struck plaintiff's assignor was not
insured on the date of the underlying accident – defendant failed to raise a triable issue as to
whether there was a policy of insurance in effect at the time of the accident (see Pomona Med. Diagnostic v MVAIC,
30 Misc 3d 132[A],2011 NY Slip Op 50042[U][App Term, 1st Dept 2011]).
Dover Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp., 2012 NY Slip Op 51619(U) (App. Term, 1st 2012)
This action, seeking recovery of first-party no-fault benefits, is not ripe for summary
dismissal. Defendant MVAIC failed to eliminate all triable issues with respect to whether
plaintiff's assignor filed a timely notice of intention to file a claim, since defendant's own
evidence was conflicting as to the date it received the notice (see generally Winegrad v New
York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]).
Nor did defendant meet its threshold burden to establish that plaintiff's assignor was not a
"qualified person" entitled to no-fault coverage (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d
223, 229 [2011]; Matter of MVAIC
v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). On this record,
and given that defendant'sown proof includes a denial of claim form from the putative insurer –
stating that the vehicle in which plaintiff's assignor was a passenger was not insured on the date
of the underlying accident – defendant failed to meet its threshold burden to establish that there
was a policy of insurance in effect at the time of the accident (see Pomona Med. Diagnostic v MVAIC, 30 Misc 3d 132[A],2011
NY Slip Op 50042[U][App Term, 1st Dept 2011]).
Li-Elle Servs., Inc. v Motor Veh. Acc. Indem. Corp., 2012 NY Slip Op 51588(U) (App. Term, 1st 2012)
The action, seeking recovery of no-fault first-party benefits, is not
ripe for summary dismissal, since defendant MVAIC failed in its burden
to establish, prima facie, that plaintiff's assignor was not a
"qualified person" entitled to no-fault coverage (see Englingtom Med. PC v Motor Veh. Acc. Indem. Corp., 81 AD3d 223, 229 [2011]; Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A],
2010 NY Slip Op 51779[U][2010]). Given defendant's failure to meet its
initial burden of demonstrating entitlement to judgment as a matter of
law, summary dismissal of the complaint was properly denied irrespective
of the sufficiency of plaintiff's opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Premium Acupuncture, P.C. v MVAIC, 2012 NY Slip Op 51534(U) (App. Term, 1st 2012)
We agree that this first-party no-fault action is not ripe for summary dismissal. Defendant
MVAIC failed to submit any evidentiary proof in support of its defense that plaintiff's assignors
were not New York State residents and thus not "qualified person[s]" entitled to no-fault
coverage (see Insurance Law § 5202[b]). Contrary to defendant's assertion, plaintiff
is not required to establish that its assignors are qualified persons; the burden on the issue lies
with defendant (see Matter of MVAIC v
Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). In this regard, we note
that defendant's moving submission includes neither the notice of intention to make claim forms
provided by the assignors, nor a sworn denial that the forms did not set forth the assignors' New
York residence (see Insurance Law § 5208; Diaz-Ruiz v MVAIC, 33 Misc
3d 127[A], 2011 NY Slip Op 51835[U] [App Term, 2d Dept 2011]).
Hillside Surgicare Diagnostic & Treatment Ctr., LLC v Utica Mut. Ins. Co., 2012 NY Slip Op 51371(U) (App. Term, 1st 2012)
The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of
law by submitting, inter alia, an orthopedist's peer review report, setting forth in some detail a
factual basis and medical rationale for his stated conclusion that the medical services giving rise
to plaintiff's claim for first-party no-fault benefits lacked medical necessity. Notably, defendant's
peer reviewer emphasized, among other factors, that his review of the assignor's medical records
showed "no findings of instability" or "positive … orthopedic signs" in connection with the
assignor's claimed shoulder injuries and that, although the arthoscopic procedure undertaken by
plaintiff related to its assignor's left shoulder, the assignor's "chief complaint" at her initial,
post-accident consultation involved her right shoulder. Plaintiff's opposing submission,
consisting solely of an attorney's affirmation together with unsworn, and thus inadmissible
medical reports (see Migliaccio v Miruku, 56 AD3d 393 [2008]), was insufficient to
withstand summary judgment.
Canarsie Med. Health, P.C. v MVAIC, 2012 NY Slip Op 51305(U) (App. Term, 1st 2012)
Plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their
complaint seeking to recover first-party no-fault benefits (see New York Hosp. Med. Ctr. of
Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d
705 [2005]). However, defendant's submissions in opposition were sufficient to raise a triable
issue as to whether the injuries arose from a hit-and-run accident, thus triggering plaintiffs'
assignor's obligation to provide notice of the accident "to a police, peace or judicial officer"
within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]; see Matter of Pagan
v Motor Veh. Acc. Indem. Corp., 82 AD3d 1102 [2011]).
Dowd v Praetorian Ins. Co., 2012 NY Slip Op 51160(U) (App. Term, 1st 2012)
The defendant-insurer made a prima facie showing of entitlement to
summary judgment dismissing the action for first-party no-fault benefits
by establishing that it timely and properly mailed the notices for
independent medical examinations (IMEs) and examinations under oath
(EUOs) to plaintiff's assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.,
35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically
deny the assignor's nonappearance or otherwise raise a triable issue
with respect thereto, or as to the mailing or reasonableness of the
underlying notices (see Unitrin at 560).
Pomona Med. Diagnostic P.C. v Adirondack Ins. Co., 2012 NY Slip Op 51165(U) (App. Term, 1st 2012)
The defendant insurer's motion to strike the notice of trial and compel
discovery should have been denied. Insofar as defendant sought discovery
pertaining to its affirmative defense that another insurance carrier
was primarily liable, the information was immaterial and, in result, the
demands were palpably improper (see Duhe v Midence, 1 AD3d 279 [2003]), since defendant cannot properly rely on this defense as a basis to deny plaintiff's no-fault claim (see 11 NYCRR 65-3.12[b]; M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co.,
81 AD3d 541 [2011]). Nor has defendant set forth any case-specific
allegations in support of its defense that plaintiff was fraudulently
incorporated so as to justify discovery on this issue (cf. One Beacon Ins. Group, LLC v Midland Med. Care, PC,
54 AD3d 738 [2008]). Defendant "will not be allowed to use pretrial
discovery as a fishing expedition when they cannot set forth a reliable
factual basis for what amounts to, at best, mere suspicions" (Devore v Pfizer Inc., 58 AD3d 138, 144 [2009], lv denied 12 NY3d 703 [2009]).
Comprehensive Neurological Servs., PA v Tri-State Consumer Ins. Co., 2012 NY Slip Op 50950(U) (App. Term, 1st 2012)
In opposition to the defendant-insurer's prima facie showing of entitlement to judgment as a
matter of law, plaintiff failed to raise a material issue requiring a trial of its claim for no-fault
first-party benefits. The affidavit of plaintiff's medical billing supervisor, while explaining in
general terms the office procedure followed by plaintiff in "document[ing] receipt of
[verification] request[s] into our computer system," failed to set forth any facts tending to
indicate that the affiant or anyone else in plaintiff's billing department in fact checked the
"computer system" to ascertain whether the verification letters shown to have been sent by
defendant had been "documented" as received. The professed status of plaintiff's affiant as
"custodian" of the case file was insufficient, on this record and without more, to overcome the
presumption of receipt created by defendant's proof of proper mailing of its verification letters
(see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]).
Muhammad Tahir, M.D., P.C. v Travelers Prop. Cas. Ins. Co., 2012 NY Slip Op 51802(U) (App. Term, 1st 2012)
It is well settled that the 30-day period within which an insurer
must pay or deny a claim for first-party no-fault benefits is tolled
until it receives a response to properly issued verification requests (see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co.,
9 NY3d 312, 317 [2007]). Here, the defendant insurer established at
trial that it timely and properly mailed its initial and follow-up
verification requests to the plaintiff medical provider's attorney, as
authorized by plaintiff's counsel's prior correspondence to defendant (see St. Vincent's Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 339-340 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co.,
293 AD2d 588, 590-591 [2002]), and that plaintiff failed to respond. In
the absence of any countervailing evidence from plaintiff, the clear
and consistent testimony of defendant's litigation examiner as to the
substance of plaintiff's counsel's letter of representation and
defendant's standard office mailing procedure was sufficient to
establish proper mailing of the verification requests and to create an
as yet unrebutted presumption of receipt, and this despite the absence
from the record of counsel's representation letter.
We note plaintiff's failure to file a respondent's brief on appeal.
Appellate Term, Second Department
Woo Yup Kang v Mercury Cas. Co., 2012 NY Slip Op 51821(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In order to establish a prima facie entitlement to summary judgment
dismissing the complaint due to plaintiff's assignor's intoxication,
defendant was required to show that plaintiff's assignor had been
"injured as a result of operating a motor vehicle while in an
intoxicated condition" (Insurance Law § 5103 [b] [2]; Vehicle and
Traffic Law § 1192 [2], [3]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 [2010]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co.,
44 AD3d 750 [2007]). Upon a review of the record, we find that
defendant was not entitled to summary judgment as it failed to tender
sufficient proof in admissible form to establish as a matter of law
plaintiff's assignor's intoxication at the time of the accident (see generally Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014; Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769 [2000]; LaDuke v State Farm Ins. Co., 158 AD2d 137 [1990]).
Jamaica Med. Supply, Inc. v Encompass Indem. Co., 2012 NY Slip Op 51825(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to plaintiff's contentions on appeal, the affidavits submitted
by defendant established that the EUO scheduling letters and denial of
claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff's assignors had failed to appear for the duly scheduled EUOs [*2](see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A],
2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists
2009]). Plaintiff does not claim that it or its assignors responded in
any way to the EUO requests. Therefore, plaintiff's objections regarding
those requests will not be heard (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A],
2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).
Plaintiff's remaining contentions either lack merit or are not properly
before this court as they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).
Arco Med. NY, P.C. v Country-Wide Ins. Co., 2012 NY Slip Op 51815(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Upon a review of the record, we find that the affidavit in support of
plaintiffs' motion failed to establish that the bills at issue had not
been timely denied or that defendant had issued timely denials of claim
that were conclusory, vague or without merit as a matter of law. Thus,
plaintiffs failed to demonstrate their prima facie entitlement to
summary judgment (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Alfa Med. Supplies v GEICO Gen. Ins. Co., 2012 NY Slip Op 51765(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiff asserts that the peer review reports contained electronic
stamped facsimiles of the peer reviewers' signatures and, as a result,
the reports are inadmissible. However, the record indicates that the
signatures were placed on the reports by the doctors who had performed
the peer reviews or at their direction (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A],
2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists
2011]). Plaintiff's remaining contentions on appeal lack merit (see e.g. Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Hollis Med. Servs., P.C. v GEICO Ins. Co., 2012 NY Slip Op 51768(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to the determination of the Civil Court, the affidavit by
defendant's employee was sufficient to establish that defendant had
timely mailed the denial of claim forms. The affidavit established that
the denials had been mailed from defendant's Woodbury office and
described defendant's standard mailing practice and procedure for that
office (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).
Brooklyn Hgts. Physical Therapy, P.C v MVAIC, 2012 NY Slip Op 51774(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Since MVAIC established that there had been no timely filing of a notice
of claim and that leave had not been sought to file a late notice of
claim (see Insurance Law § 5208 [a], [c]), plaintiff's assignor is not a covered person (see
Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to
plaintiff's right to apply for payment of no-fault benefits from MVAIC
has not been satisfied (Five Boro Psychological Servs., P.C. v MVAIC, 35 Misc 3d 133[A], 2012 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A],
2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists
2009]). In light of the foregoing, we reach no other issue.
All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2012 NY Slip Op 51775(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
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 to compel discovery pursuant to CPLR 3124. Contrary to
plaintiff's argument on appeal, defendant properly substantiated its
allegations of fraudulent incorporation so as to warrant disclosure (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Lexington Acupuncture, P.C. v General Assur. Co., 35 Misc 3d 42
[App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, the
Civil Court did not improvidently exercise its discretion in denying
plaintiff's motion for summary judgment and granting defendant's cross
motion to compel disclosure. Plaintiff's remaining contentions on appeal
lack merit.
W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 2012 NY Slip Op 51707(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiff's argument that the assignor was not required to respond to
those IME requests because they came from a third party lacks merit, as
the letters "clearly apprised the assignor" that they "were being sent
on defendant's behalf" (Eagle Surgical Supply, Inc. v Utica Mut. Ins. Co., 27 Misc 3d 142[A],
2010 NY Slip Op 51057[U], *1 [App Term, 2d, 11th & 13th Jud Dists
2010]). As plaintiff raises no other argument with respect to its claim
for $171.36, for dates of service September 3 and 4, 2008, the branch of
defendant's motion seeking summary judgment dismissing this claim was
properly granted.
However, defendant was not entitled to summary judgment
dismissing plaintiff's claims for $728.28, for dates of service July 21,
2008 through August 14, 2008, and for $171.36, for dates of service
August 20, 2008 through August 25, 2008, because, according to the proof
submitted by defendant in support of its motion, the first IME had not
been scheduled to be held within 30 days of defendant's receipt of those
claims, as required by Insurance Department Regulations (11 NYCRR) §
65-3.5 (d).
3 Star Acupuncture, P.C. v MVAIC, 2012 NY Slip Op 51708(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which
the assignor had been a passenger at the time of the accident,
plaintiff, as assignee, was required to exhaust its remedies against the
vehicle's owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]; see also BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; BLR Chiropractic, P.C. v MVAIC,
Misc 3d , 2011 NY Slip Op 52517[U] [App Term, 2d, 11th & 13th Jud
Dists 2011]). As plaintiff did not demonstrate that it had exhausted its
remedies against the owner of the vehicle, the judgment is reversed,
the order entered July 29, 2010 is vacated, plaintiff's motion for
summary judgment is denied and defendant's cross motion for summary
judgment dismissing the complaint is granted.
Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51710(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to plaintiff's argument regarding several of defendant's
denials, the denial of claim forms and the accompanying explanation of
benefit forms were sufficient to apprise plaintiff that defendant was
partially paying and partially denying plaintiff's bills on the ground
that the claims exceeded the amount permitted by the workers'
compensation fee schedule, and that
defendant had fully paid plaintiff for the services billed for in
accordance with the workers' compensation fee schedule for acupuncture
services performed by chiropractors.
Plaintiff's remaining argument on appeal is that defendant's
cross motion should have been denied because defendant, without
explanation, paid some of the claims at issue at the rate for
acupuncture services performed by a medical doctor and paid the rest of
the claims at the rate for acupuncture services performed by a
chiropractor. This argument lacks merit. This court has held, "as a
matter of law, that an insurer may use the workers' compensation fee
schedule for acupuncture services performed by chiropractors to
determine the amount which a licensed acupuncturist is entitled to
receive for such acupuncture services" (Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23,
24 [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant was
therefore entitled to an award of summary judgment dismissing so much of
the complaint as sought to recover upon the claims that had been
reimbursed at that rate. As the remaining claims had been paid based
upon the workers' compensation fee schedule for acupuncture services
performed by a medical doctor, a rate higher than that established for
acupuncture services performed by a chiropractor, there is no reason to
disturb the portion of the order that granted defendant summary judgment
dismissing so much of plaintiff's complaint as sought to recover upon
those claims (see Raz Acupuncture, P.C. v AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Compas Med., P.C. v Delos Ins. Co., 2012 NY Slip Op 51715(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault
benefits, the Civil Court properly denied defendant's cross motion for
summary judgment dismissing the complaint, as there is a triable issue
of fact as to whether verification is outstanding.
Kamara Supplies, Inc. v Clarendon Ins. Co., 2012 NY Slip Op 51718(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
As the affirmed peer review report submitted by defendant in support of
its cross motion failed to clearly establish a sufficient medical
rationale and factual basis to demonstrate a lack of medical necessity
for the supplies at issue (compare Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]), defendant's cross motion was properly denied.
Ranbow Supply of N.Y., Inc. v MVAIC, 2012 NY Slip Op 51719(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Since MVAIC established that there had been no timely filing
of a notice of claim and that leave had not been sought to file a late
notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff's assignor is not a covered person (see
Insurance Law § 5221 [b] [2]) and, thus, a condition precedent to
plaintiff's right to apply for payment of no-fault benefits from MVAIC
has not been satisfied (Five Boro Psychological Servs., P.C. v MVAIC, 35 Misc 3d 133[A], 2012 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009])
David v MVAIC, 2012 NY Slip Op 51721(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant correctly argues that the Civil Court's prior order in this
action, which denied a motion by defendant that sought summary judgment
on the ground that plaintiff's assignor was not a qualified person (see
Insurance Law § 5202 [b]), did not bar defendant from opposing
plaintiff's instant motion for summary judgment on the ground that
plaintiff's assignor failed to exhaust her remedies against the
identified owner of the vehicle in which the assignor was a passenger at
the time of the accident before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Palin Winotaka, L.Ac. v MVAIC, 34 Misc 3d 160[A],
2012 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists
2012]). However, defendant failed to attach to its opposition papers the
documentary evidence upon which it purportedly relied and which it claimed to have annexed to such papers (cf. Palin Winotaka, L.Ac. v MVAIC, 34 Misc 3d 160[A],
2012 NY Slip Op 50391[U] [record on appeal reflects that MVAIC's moving
papers contained a copy of the notice of intention to make claim
form]). Consequently, defendant failed to demonstrate the existence of a
triable issue of fact.
Quality Health Prods. v Hertz Claim Mgt. Corp, 2012 NY Slip Op 51722(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant's motion was based on a claim that plaintiff's assignors had
failed to appear for duly scheduled independent medical examinations
(IMEs). Plaintiff argues on appeal that defendant's motion should have
been denied because defendant failed to prove that plaintiff's assignors
had failed to appear for the IMEs, as defendant's acupuncturist merely
stated in his supporting affidavit that, "to the best of [his]
knowledge," the assignors did not appear. However, a review of the
affidavits submitted in support of defendant's motion reveals that
defendant's chiropractor and orthopedist both stated, based upon their
personal knowledge, that plaintiff's
assignors had failed to appear for the IMEs scheduled with each of them.
Plaintiff's assertion on appeal that neither defendant's chiropractor
nor defendant's orthopedist actually had personal knowledge of the
assignors' nonappearance is conclusory and unsupported by the record.
East Gun Hill Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51723(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant failed to establish, as a matter of law, its proffered grounds
for its entitlement to summary judgment, to wit, that written notice
setting forth the details of the accident had not been submitted to
defendant within 30 days of the accident or that plaintiff had failed to
submit written proof of claim to defendant within 45 days of the
services rendered (see Insurance Department Regulations [11 NYCRR] § 65-1.1).
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51623(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The branches of defendant's cross motion seeking summary judgment dismissing so much of
the complaint as sought to recover for the three remaining claims were properly denied, as
defendant failed to conclusively establish its stated defenses that the fees charged exceeded the
amounts set forth in the workers' compensation fee schedule (see Rogy
Med., P.C. v Mercury Cas.
Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud
Dists 2009]) and that there was an unmet personal injury protection deductible.
Central Radiology Servs., P.C. v MVAIC, 2012 NY Slip Op 51624(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
On appeal, defendant contends that, although it had received a sworn notice of intention to
make claim form (see Insurance Law § 5208), plaintiff was not entitled to summary
judgment because plaintiff's assignor was not a qualified person since she had failed to provide
defendant with a household affidavit. Defendant's argument lacks merit because plaintiff's
assignor's status as a qualified person is not dependent upon defendant's receipt of a household
affidavit (see Insurance Law § 5202 [b]; Farragut Corner Med., P.C. v MVAIC,
32 Misc 3d 137[A], 2011 NY Slip Op 51529[U] [App Term, 2d, 11th & 13th Jud Dists
2011]; Liberty Orthopedics, PLLC v
MVAIC, 20 Misc 3d 136[A], 2008 NY Slip Op 51533[U] [App Term, 2d & 11th Jud
Dists 2008]; see generally New York
Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]).
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 2012 NY Slip Op 51628(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavits submitted by defendant established that the examination under oath (EUO)
scheduling letters and 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation by an
attorney who was at the time of the scheduled EUOs, the "managing no-fault attorney" of the law firm retained by defendant
to conduct the assignor's EUO, which set forth the law firm's practices and procedures in
establishing appearances at EUOs and which demonstrated that the assignor had failed to appear
at either of the duly scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d
142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an
appearance at an EUO is a condition precedent to an insurer's liability on a policy (see
Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v
Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family
Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th &
13th Jud Dists 2010]).
Brownsville Advance Med., P.C. v Kemper Independence Ins. Co., 2012 NY Slip Op 51629(U) (App. Term, 9th & 10th Jud. Dists. 2012)
In addition, annexed to defendant's motion papers was an affirmed independent medical
examination report that set forth a sufficient factual basis and
medical rationale for the doctor's determination that there was a lack of medical necessity for the
services provided (see Elmont Open
MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY
Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A],
2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), which shifted the burden
to plaintiff to rebut defendant's prima facie showing. In opposition to the motion, plaintiff failed
to submit an affidavit or affirmation from a medical professional (see Total Equip., LLC v Praetorian Ins.
Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50155[U] [App Term, 9th & 10th Jud Dists
2012]; Total Equip., LLC, 34 Misc 3d 141[A], 2012 NY Slip Op 50078[U]).
Neomy Med., P.C. v GEICO Ins. Co., 2012 NY Slip Op 51638(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its cross motion, defendant submitted an affirmed peer review report which set
forth a factual basis and medical rationale for the peer reviewer's opinion that there was a lack of
medical necessity for the services at issue. In opposition to defendant's cross motion, plaintiff
submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of
fact as to medical necessity (see Quality
Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op
50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins.
Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud
Dists 2010]). In view of the existence of a triable issue of fact as to the medical necessity of the
services in question, defendant's cross motion for summary
judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557
[1980]).
Neomy Med., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51639(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its cross motion, defendant submitted an affirmed peer review report which set
forth a factual basis and medical rationale for the peer reviewer's opinion that there was a lack of
medical necessity for the services at issue. In opposition to defendant's cross motion, plaintiff
submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of
fact as to medical necessity
Village Chiropractic v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51640(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
As the affidavit of plaintiff's treating chiropractor demonstrated the existence of a triable
issue of fact as to the medical necessity of the services at issue, we find no basis to disturb so
much of the order as denied defendant's motion for summary judgment (see Ozone Park Chiropractic v Clarendon
Natl. Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51453[U] [App Term, 2d, 11th &
13th Jud Dists 2011]). We further find that the award of motion costs to plaintiff was not an
improper exercise of discretion (CPLR 8106; CCA 1903; see Babikian v Nikki Midtown,
LLC, 60 AD3d 470 [2009]; Greenspan v Rockefeller Ctr. Mgt. Corp., 268 AD2d
236 [2000]).
Quality Health Prods. v Country-Wide Ins. Co., 2012 NY Slip Op 51641(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant demonstrated that it had not received
the requested verification, and plaintiff did not show that the verification had been provided to
defendant prior to the commencement of the action. Consequently, the 30-day period within
which defendant was required to pay or deny the claims did not begin to run and plaintiff's action
is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44
AD3d 903 [2007]; Central Suffolk
Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).
Biddle v Safeco Ins. Co., 2012 NY Slip Op 51642(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
As argued by plaintiff in opposition to defendant's motion for summary judgment, the
affidavit of defendant's claims representative did not constitute evidence in admissible form
(see Real Property Law § 299-a [1]). As a result, defendant's motion papers failed to
establish that defendant's denial of claim form was timely and that defendant's proffered defense
that plaintiff's assignor had misrepresented her residence in connection with the issuance of the
subject insurance policy, was not precluded (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d
603 [2011]; cf. Central Radiology
Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U]
[App Term, 2d, 11th & 13th Jud Dists 2011]).
First Help Acupuncture, P.C. v MVAIC, 2012 NY Slip Op 51643(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
"Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person' and thereby
have such rights as a covered person may have under [Insurance Law article 51],' an injured
person must be a qualified person,' as that term is defined in Insurance Law § 5202 (b), and
must have complied with all of the applicable requirements of Insurance Law article 52
(e.g. Insurance Law § 5208)" (Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A],
2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists
2008]). Thus, in order for someone who has allegedly been injured in a hit-and-run accident, such
as plaintiff's assignor herein, to be a "covered person" and obtain no-fault benefits, the person
must have complied with all the applicable requirements of Insurance Law article 52, including,
but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance
Law § 5208 [a] [2] [A]), unless a showing is made that it was "not reasonably possible [for
the injured person] to make such a report or that it was made as soon as was reasonably possible"
(Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95
AD2d 509, 511 [1983]).
In the instant case, MVAIC's claims examiner stated in his affidavit that despite repeated
requests for proof that plaintiff's assignor had filed an accident report, plaintiff's assignor had
never provided such proof. Plaintiff's opposing papers are devoid of any indication that plaintiff's
assignor complied with the reporting requirement set forth in Insurance Law § 5208 (a) (2)
(A). Nor does plaintiff make any showing that it "was not reasonably possible to make such a
report" (Insurance Law § 5208 [a] [2] [B]). Accordingly, the order is affirmed (see
Insurance Law § 5221 [b] [2]; Velen Med. Supply v MVAIC, 33 Misc 3d 135[a], 2011 NY Slip
Op 52016[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A],
2009 NY Slip Op 50440[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Quality Health Prods. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51645(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
It is uncontroverted that plaintiff filed a notice of trial and certificate of readiness stating that
all discovery had been completed even though plaintiff had failed to, among other things, provide
responses to defendant's demand for discovery and inspection. Consequently, defendant's timely
motion to vacate the notice of trial (see CPLR 2103 [b], [c]; Uniform Rules of the NY
City Civ Ct [22 NYCRR] § 208.17 [c]), was properly granted (see Savino v
Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt, P.C. v Country
Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th &
13th Jud Dists 2009]; First Aid
Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A],
2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General
Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).
Moreover, the Civil Court properly compelled plaintiff to provide responses to defendant's
outstanding discovery demands. We note that plaintiff was required, but failed, to challenge the
propriety of defendant's demand for discovery and inspection pursuant to CPLR 3120 within the
time prescribed by CPLR 3122. As a result, plaintiff is obligated to produce the information
sought except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17
AD3d 520 [2005]; Marino v
County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d
144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]). Inasmuch as
plaintiff did not argue that defendant's discovery demands were palpably improper or privileged,
it is required to produce all of the information sought therein.
BLR Chiropractic, P.C. v GEICO, 2012 NY Slip Op 51647(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to plaintiff's only arguments on appeal, defendant was not required to attach
plaintiff's bills to its motion (see Five
Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d
136[A], 2011 NY Slip Op 51528[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and
defendant did establish the timely mailing of the verification requests and denials at issue (see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]).
WJ Acupuncture, P.C. v Nationwide Mut. Ins., 2012 NY Slip Op 51648(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiffs, who had provided health care services to the same assignor for injuries arising out
of the same accident, commenced separate actions to recover assigned first-party no-fault
benefits. The actions were consolidated. At the commencement of a nonjury trial, defendant
moved to dismiss the complaints based on the doctrine of collateral estoppel, arguing that, at a
prior arbitration proceeding involving defendant and a third provider who had provided health
care services to the same assignor for injuries arising out of the same accident, the arbitrator had
[*2]found that the third provider had failed to establish a timely
notice of claim within 90 days of the loss, as required under former Insurance Department
Regulations (11 NYCRR) § 65.11 (m) (2) (now 30 days, see Insurance Department
Regulations [11 NYCRR] § 65-1.1). This determination, defendant argued, barred
relitigation of the issue in the Civil Court, requiring the complaints' dismissal. The Civil Court
granted the motion. We reverse.
The doctrine of collateral estoppel applies only against those who were either a party, or in
privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668
[2004]). As it has not been demonstrated that plaintiff was either a party, or in privity with a
party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Alev Med. Supply, Inc. v Allstate Prop.
& Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 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, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19
[App Term, 2d & 11th Jud Dists 2005]).
Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 2012 NY Slip Op 51649(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant admits that it received plaintiff's claims for the sums of $865 and $1,737 on
January 28, 2008 and February 6, 2008, respectively, and it is undisputed that the claims were not paid or denied within 30 days of their receipt. The letters sent
by defendant to plaintiff after the receipt of the claims informed plaintiff that defendant was
investigating the claims and was in the process of obtaining verification, which included
examinations under oath. It is well settled that an insurer's delay letters, which request no
verification, are insufficient to toll the 30-day statutory time period within which a claim must be
paid or denied (see Nyack Hosp. v
Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d
133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
Consequently, defendant failed to demonstrate that the claims had been timely denied and,
therefore, defendant has not established that its defense of lack of medical necessity is not
precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274
[1997]). Accordingly, the judgment is reversed, so much of the order as granted defendant's cross
motion for summary judgment dismissing the complaint is vacated and defendant's cross motion
is denied.
Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51655(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
However, defendant failed to establish that it had timely denied two claims, each seeking to
recover the sum of $838.95 (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123;
Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Consequently, defendant was not
entitled to summary judgment dismissing so much of the complaint as sought to recover upon
these claims.
Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 51656(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
It is undisputed that plaintiff was required to submit its claim form to MVAIC within 45 days
after the services at issue had been rendered (see Insurance Department Regulations [11
NYCRR] § 65-1.1; AAA
Chiropractic, P.C. v MVAIC, 29 Misc 3d 131[A], 2010 NY Slip Op 51896[U] [App
Term, 2d, 11th & 13th Jud Dists 2010]; Nir v MVAIC, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U] [App Term, 2d & 11th Jud Dists
2007]; NY Arthroscopy & Sports
Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [App Term, 1st Dept
2007]) and that plaintiff did not do so. MVAIC's denial of plaintiff's claim, based upon its
untimely submission, also informed plaintiff that it could excuse the delay if plaintiff provided
"written justification" for the delay (see Insurance Department Regulations [11 NYCRR]
§ 65-3.3 [e]; see also Matter of Medical Socy. of State of NY v Serio, 100 NY2d
854, 862-863 [2003]; Nir, 17 Misc 3d 134[A], 2007 NY Slip Op 52124[U]). In
opposition to MVAIC's motion for summary judgment, plaintiff did not establish that it had
provided MVAIC with a written justification for its untimely submission of the claim form.
Jamaica Med. Supply, Inc. v NY City Tr. Auth., 2012 NY Slip Op 51660(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit of defendant's claims examiner established that defendant had timely mailed
(see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]) its denial of claim form, which denied plaintiff's
claims on the ground that defendant had not received proper written notice of the accident within
30 days of the accident (see Insurance Department Regulations [11 NYCRR] §
65-2.4). The affidavit further demonstrated that defendant had
first learned of the accident on the date it had received an NF-2 form, which had been submitted
more than 30 days after the accident had occurred. As defendant established its prima facie
entitlement to judgment as a matter of law, the burden shifted to plaintiff. In opposition, plaintiff
did not proffer any proof, but merely speculated that defendant had learned of the accident prior
to defendant's receipt of the NF-2 form. Despite having been informed by the denial of claim
form that it had the opportunity to "submit[] written proof providing clear and reasonable
justification for the failure" to timely advise defendant of the accident (Insurance Department
Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff did not present any evidence
that it had availed itself of the opportunity. In light of the foregoing, plaintiff failed to
demonstrate the existence of a triable issue of fact (see Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d
135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
We note that, contrary to plaintiff's contention, the denial of claim form's referrence to the
"applicant" as the one who might provide justification for a late notice did not invalidate the
denial of claim form, since "in some instances, [the Insurance Department] regulations use the
term applicant' as a generic reference to both provider/assignees and injured persons" (East Acupuncture, P.C. v Allstate Ins.
Co., 61 AD3d 202, 210 [2009]).
Modern Art Med., P.C. v MVAIC, 2012 NY Slip Op 51492(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
When a defendant who has failed to timely answer the complaint seeks to compel the
acceptance of his late answer, he must provide a reasonable excuse for the default and
demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34
AD3d 649 [2006]; Juseinoski v Board of Educ. of City of
NY, 15 AD3d 353, 356 [2005]). In the instant case, defendant failed to demonstrate a
reasonable excuse for its default because the affidavit executed by defendant's claim
representative made no attempt to explain why defendant had failed to timely answer. In light of
the foregoing, defendant's cross motion to open its default and compel the acceptance of its late
answer should have been denied.
Plaintiff's motion for leave to enter a default judgment was supported by an affirmation from
plaintiff's counsel and the complaint, which had been verified by an attorney. Thus, plaintiff
failed to demonstrate its entitlement to a default judgment since plaintiff's counsel did not
establish that he possessed personal knowledge of the facts (see CPLR 3215 [f];
Triangle Props. # 2, LLC v Narang, 73 AD3d 1030 [2010]; Juseinoski, 15 AD3d
353).
Accordingly, the order of the Civil Court is modified by providing that defendant's cross
motion to open its default and compel the acceptance of its late answer is denied.
Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co., 2012 NY Slip Op 51485(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault benefits, the record
establishes that Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of
plaintiff, died prior to the commencement of the action (see also Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15
Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). As the record does not demonstrate that
the commencement of this action was authorized by someone with the authority to do so
(see Business Corporation Law §§ 1507, 1511; see also Matter of
Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; Ocean Diagnostic
Imaging, P.C., 15 Misc 3d 9; 38 NY Jur 2d, Decedents' Estates §§ 53, 1510, 1513,
1521, 1532), the order of the Civil Court is reversed and the branch of defendant's motion
seeking to dismiss the complaint is granted (Deutsch v LoPresti, 272 AD2d 506 [2000];
McCormack v County of Westchester, 255 AD2d 296
[1998]).
Perfect Point Acupuncture, P.C. v Auto One Ins. Co., 2012 NY Slip Op 51486(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant's proffered defense to this action is that it timely denied the claims based upon
plaintiff's assignor's failure to appear for independent medical examinations (IMEs). However,
defendant failed to establish that the letters scheduling the IMEs had been mailed to plaintiff's
assignor (see St. Vincent's Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d [*2]& 11th
Jud Dists 2007]). Thus, defendant did not demonstrate that plaintiff's assignor had failed to
comply with a condition precedent to the insurer's liability on the policy (see Insurance
Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35
AD3d 720 [2006]). Consequently, defendant's cross motion for summary judgment
dismissing the complaint should not have been granted.
Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51489(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit submitted by defendant in support of its motion for summary judgment failed
to establish that defendant had timely denied the claim at issue (see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied
defendant's motion for summary judgment dismissing the complaint, as defendant failed to
establish that it is not precluded from raising as a defense the failure of plaintiff's assignor to
appear for an independent medical examination (see Presbyterian Hosp. in City of NY v
Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Metropolitan Med. Supplies, LLC v GEICO Ins. Co., 2012 NY Slip Op 51490(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
We reject defendant's challenge to the Civil Court's finding as to plaintiff's first cause of
action. "A decision rendered by a court after a nonjury trial should not be disturbed on appeal
unless it is clear that its conclusions could not have been reached under any fair interpretation of
the evidence" (S.J. Pahng, M.D., P.C. v
Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U], *1
[App Term, 2d & 11th Jud Dists 2008], quoting Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d
517, 518 [2004]). Although plaintiff did not put on any rebuttal witnesses, plaintiff did
cross-examine defendant's witness, and the Civil Court "was free to assess and reject [the
witness's] uncontradicted expert opinion" (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d
131[A], 2006 NY Slip Op 51871[U], *2 [App Term, 2d & 11th Jud Dists 2006]).
As to plaintiff's second cause of action, we find that the Civil Court erred in precluding the
testimony of defendant's expert medical witness. While that witness had not prepared the peer
review report upon which defendant's denial of this claim was based, he nevertheless should have
been permitted to testify as to his opinion of the lack of medical necessity for the supplies at
issue, which testimony would be limited to the basis for the denial as set forth in the peer review
report (Park Slope Med. & Surgical
Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U]
[App Term, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34
Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d, 11th & 13th Jud Dists 2011];
Radiology Today, P.C. v Progressive
Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th
Jud Dists 2011]; Psychology YM, P.C. v
GEICO Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d,
11th & 13th Jud Dists 2011]; Dilon
Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip
Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). As defendant's witness should not have
been precluded from testifying as to the second cause of action, a new trial is required on this
cause of action.
Qi-Health Acupuncture Servs., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51494(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit submitted by defendant in support of its motion for summary judgment failed
to establish that defendant had timely denied the claims at issue (see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d
16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied
defendant's motion for summary judgment dismissing the complaint, as defendant failed to
establish that it is not precluded from raising as a defense the failure of plaintiff's assignor to
appear for an independent medical examination (see Presbyterian Hosp. in City of NY v
Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Bright Med. Supply Co. v GMAC Integon Ins. Co., 2012 NY Slip Op 51495(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals
from an order of the Civil Court entered July 27, 2010 granting defendant's motion to dismiss the
complaint pursuant to CPLR 3211 (a) (1) and (4) on the ground that the action had been
commenced by the filing of the summons and complaint (see CCA 400 [a]) in violation
of a temporary restraining order (TRO) that had been issued by the Supreme Court in another
action involving numerous parties, including the parties to this action. A judgment dismissing the
complaint was subsequently entered, from which the appeal is deemed to have been taken
(see CPLR 5501 [c]).
It is undisputed that, at the time plaintiff commenced the instant action, it had not yet been
served with the TRO. In support of its motion to dismiss, defendant did not submit any proof that
plaintiff was otherwise aware of the existence of the TRO or of its terms. Defendant's contention,
made for the first time on appeal, that plaintiff's attorney was aware that a TRO was being sought
is dehors the record and will not be considered (see Chimarios v Duhl, 152 AD2d 508
[1989]).
Thus, as defendant failed to establish that plaintiff had knowledge, actual or imputed, of the
terms of the TRO, defendant did not show that plaintiff was barred by the TRO from
commencing the instant action (see Matter of McCormick v Axelrod, 59 NY2d 574, 585
[1983]; People ex rel. Stearns v Marr, 181 NY 463 [1905]; Rosado v Edmundo
Castillo Inc., 54 AD3d 278 [2008]; Lathrop v Lathrop, 271 App Div 807 [1946];
67A NY Jur 2d, Injunctions § 213; 12A Carmody-Wait 2d § 78:230, at 441-442).
Chi Point Acupuncture, P.C. v Clarendon Ins. Co., 2012 NY Slip Op 51496(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one
year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in
moving for leave to enter a default judgment, and must demonstrate that the complaint is
meritorious, failing which the court, upon its own initiative or on motion, must dismiss the
complaint as abandoned (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d
722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray
Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a
review of the facts, and plaintiff's failure to submit opposition to defendant's motion, we find that
dismissal of the complaint was required pursuant to CPLR 3215 (c).
Allstate Social Work & Psychological Svcs, P.L.L.C. v MVAIC, 2012 NY Slip Op 51498(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
MVAIC's motion for summary judgment was predicated upon its claim that plaintiff's
assignor was not a qualified person because she had failed to demonstrate that she was a New
York resident (see Insurance Law § 5202 [b]). However, annexed to MVAIC's
moving papers was a sworn notice of claim (Insurance Law § 5208) in which plaintiff's
assignor had set forth her Brooklyn residence. The assignor also set forth the same address in the
household affidavit which MVAIC had requested and received (see generally Farragut Corner
Med., P.C. v MVAIC, 32 Misc 3d 137[A], 2011 NY Slip
Op 51529[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). MVAIC's conclusory assertion that
these sworn documents are insufficient to satisfy Insurance Law § 5202 (b) and that further
documentary proof is required lacks merit (see Complete Med. Servs. of NY, P.C. v MVAIC, 33 Misc 3d
127[A], 2011 NY Slip Op 51835[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Infinity Health Prods., Ltd. v Unitrin Advantage Ins. Co., 2012 NY Slip Op 51502(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits,
the parties stipulated that the only issue for trial was the medical necessity of the services
provided, and agreed that defendant had the burden of going forward as a result of the stipulation.
Defense counsel sought to offer into evidence the deposition transcript of its medical doctor,
pursuant to CPLR 3117 (a) (4). The Civil Court refused to permit defendant to do so, and
directed that judgment be entered in favor of plaintiff. A judgment was subsequently entered,
from which defendant appeals. CPLR 3117 (a) (4) provides that "the deposition of a person
authorized to practice medicine may be used by any party without the necessity of showing
unavailability or special circumstances, subject to the right of any party to move pursuant to
section 3103 to prevent abuse." There is nothing in the trial record to indicate that plaintiff moved for a protective order pursuant to CPLR 3103.
While a trial court's exercise of discretion under CPLR 3117 is reviewable only for "clear
abuse" (see Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]), "in exercising its
discretion, the trial court may not act arbitrarily or deprive a litigant of a full opportunity to
present his case" (id. at 644). In our view, under the circumstances presented, the Civil
Court abused its discretion in sua sponte refusing to permit defendant to offer into evidence the
deposition testimony of its doctor (see Goldblatt v Avis Rent A Car Sys., 223 AD2d 670
[1996]; Long Is. Anesthesiology Serv. v Solis 114 Misc 2d 561 [Civ Ct, Kings County
1982]). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a
new trial limited to the issue of medical necessity.
Modern Art Med., P.C. v M.V.A.I.C., 2012 NY Slip Op 51503(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
When a defendant who has failed to timely answer the complaint seeks to compel the
acceptance of his late answer, he must provide a reasonable excuse for the default and
demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34
AD3d 649 [2006]; Juseinoski v Board of Educ. of City of
NY, 15 AD3d 353, 356 [2005]). In the instant case, defendant failed to demonstrate a
reasonable excuse for its default because the affidavit executed by defendant's claim
representative made no attempt to explain why defendant had failed to timely answer. To the
extent defendant's counsel attempted to do so, her affirmation was of no probative value as she
did not establish that she possessed personal knowledge of the pertinent facts giving rise to
defendant's delay in notifying counsel of the existence of this action (see Juseinoski, 15
AD3d 353). In light of the foregoing, defendant's cross motion to open its default and to compel
the acceptance of its late answer should have been denied.
Plaintiff's motion for leave to enter a default judgment was supported by an affirmation from
plaintiff's counsel and the complaint, which had been verified by an attorney. Thus, plaintiff
failed to demonstrate its entitlement to a default judgment since plaintiff's counsel did not
establish that he possessed personal knowledge of the facts (see CPLR 3215 [f];
Triangle Props. # 2, LLC v Narang, 73 AD3d 1030 [2010]; Juseinoski, 15 AD3d
353).
A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2012 NY Slip Op 51505(U) (App. Term, 9th & 10th Jud. Dists. 2012)
Plaintiffs appealed from so much of the order as denied without prejudice their motion for
summary judgment and held the action in abeyance. By decision and order dated June 18, 2009,
this court modified the District Court's order "by striking the provision denying without prejudice
plaintiffs' motion for summary judgment and by remitting plaintiffs' motion to the District Court
to be held in abeyance pending a prompt application to the Workers' Compensation Board for a
determination of the parties' rights under the Workers' Compensation Law. In the event plaintiffs
fail to file proof with the District Court of such application within 90 days of the date of the order
entered hereon, the District Court shall deny plaintiffs' motion and grant reverse summary
judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why
the complaint should not be dismissed" (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75,
76 [App Term, 9th & 10th Jud Dists 2009]; see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d
752 [2009]).
Thereafter, plaintiffs moved for, among other things, leave to renew their prior motion for
summary judgment. Defendant opposed plaintiffs' motion and cross-moved for summary
judgment dismissing the complaint pursuant to this court's June 18, 2009 decision and order. By
order dated December 7, 2010, the District Court, upon granting the branch of plaintiffs' motion
seeking leave to renew their prior motion, denied the branch of plaintiffs' motion seeking
summary judgment and granted defendant's cross motion for summary judgment dismissing the
complaint, finding that a proper application to the Board, pursuant to this court's June 18, 2009
order, had not been made.
Since plaintiffs did not demonstrate that a proper application for workers' compensation
benefits had been made in accordance with the Workers' Compensation Law (see e.g.
Workers' Compensation Law § 33) within the time provisions set forth in this court's order
dated June 18, 2009, and they otherwise did not show good cause why the complaint should not
be dismissed, the order, insofar as appealed from, is affirmed.
Promed Orthocare Supply, Inc. v Travelers Ins. Co., 2012 NY Slip Op 51441(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant argues that plaintiff, a provider of durable medical equipment, was not entitled to
bring this action as Omar Brown's assignee because, according to Omar Brown's sworn
statement, it was not plaintiff who had provided the equipment at issue directly to him. However,
plaintiff submitted an affidavit asserting that it is plaintiff's business practice for plaintiff to
disperse medical supplies directly to the patient, and that the practice was followed in this case.
On this record, accelerated judgment for either party is inappropriate (see generally
Zuckerman v City of New York, 49 NY2d 557 [1980]).
Chiemi v Redland Ins. Co., 2012 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiff's notice of motion states "Please take notice that answering affidavits, if any, are to be served upon the undersigned within seven (7) days prior
to the return date of the within application." We need not decide whether, as plaintiff argues, this
was a proper demand, pursuant to CPLR 2214 (b), that any cross motion be served seven days
before the return date of the motion since, in any event, defendant failed to even demonstrate that
the cross motion was timely and properly served pursuant to CPLR 2215.
Pursuant to CPLR 2215, if CPLR 2214 (b) has not been invoked, cross motions are to be
served three days prior to the time at which the motion is noticed to be heard. If the cross motion
is served by mailing, it must be served six days prior to the return date for the motion (CPLR
2215 [a]) and if it is served by overnight delivery, it must be served four days prior to the return
date (CPLR 2215 [b]). Defendant served the cross motion four days prior to the return date, but
its affidavit of service failed to allege that service was made by overnight delivery or to offer
sufficient facts to support such a finding (see CPLR 2103 [b] [6]).
Since plaintiff did not have an adequate opportunity to rebut the allegations contained in the
cross motion (see Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844
[1986]), including defendant's allegations that the services at issue were not medically necessary,
the cross motion should not have been considered.
Dvs Chiropractic, P.C. v Interboro Ins. Co., 2012 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant denied the claims based upon the alleged failure by plaintiff's assignor to appear at
duly scheduled examinations under oath (EUOs). However, according to the affidavit [*2]submitted by defendant, the initial EUO had twice been rescheduled
by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling,
which occurs prior to the date of that scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper
Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Therefore, as defendant
did not demonstrate that there had been a failure to appear at both an initial and a follow-up
EUO, defendant did not prove that plaintiff had failed to comply with a condition
precedent to coverage (see
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Gaba Med., P.C. v Progressive Specialty Ins. Co., 2012 NY Slip Op 51448(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The record reflects that plaintiff submitted a claim for six tests utilizing CPT code 97799 and
that defendant, upon receiving the claim, unilaterally determined that the appropriate CPT code
was 97750. Since CPT code 97750 is a "time based procedure code," and since defendant did not have sufficient documentation demonstrating how long it
took plaintiff to perform the billed-for services, defendant concluded that it would only pay for
one unit of time, i.e., 15 minutes.
We do not pass upon whether defendant may unilaterally determine that plaintiff's services
should be compensated utilizing CPT code 97750 instead of code 97799, since even if defendant
were permitted to unilaterally apply a code different from the one applied by plaintiff, defendant's
opposition to plaintiff's motion was nevertheless insufficient to establish a triable issue of fact.
Defendant's basis for paying only part of the claim, utilizing CPT code 97750, was that in the
absence of being notified by plaintiff of the amount of time it had actually taken for the services
to be rendered, defendant arbitrarily opted to pay for the minimum amount of time designated
therefor, i.e., only one unit of time. Since this determination by defendant is without any factual
basis, as defendant never requested verification from plaintiff seeking information regarding the
amount of time it had taken plaintiff to perform the services billed for, such a reduction has not
been shown to be warranted (see A.B.
Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip
Op 50114[U] [App Term, 2d & 11th Jud Dists 2005]; see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d
132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In light
of the foregoing, defendant did not raise a triable issue of fact in opposition to plaintiff's motion.
Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 2012 NY Slip Op 22200 (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault
benefits, the Civil Court, by order entered April 28, 2008, limited the
trial to the issue of the medical necessity of the supplies provided.
At the nonjury trial, defendant proffered the testimony of Dr. Susan
Corcoran, the physician who had prepared the peer review report upon
which the denial of the claim at issue had been based. Dr. Corcoran
testified that she had obtained the facts of the case from, among other
things, the claim form, the medical records (which she listed in her
report), and the police accident report. The claim form was admitted
into evidence without objection, but the
court sustained plaintiff's objections to the admission into evidence
of other documents, including the medical records. While Dr. Corcoran
testified that she could conclude that certain items, such as the
cervical pillow or the lumbar cushion, were not medically necessary
based solely upon the information contained in the claim form—because
she had never seen such equipment used to treat an injury of any
sort—she ultimately did not attempt to proffer any testimony which would
have required her to refer to documents which the court had previously
held were inadmissible.
Defendant's employee, Jemma Keating, testified as to, among other
things, defendant's practices and procedures when it receives medical
documentation concerning an eligible injured person. When defendant
sought, for the second time, to admit the medical documentation into
evidence, the Civil Court again sustained plaintiff's objection. The
court then granted plaintiff's motion for judgment in the entire amount
sought in the complaint. A judgment was subsequently entered, from which
defendant appeals.
The question before the court is whether defendant was entitled
to have the medical records submitted to it by plaintiff (or plaintiff's
assignor or other medical professionals who had provided services or
supplies to plaintiff's assignor) admitted into evidence so as to enable
Dr. Corcoran to testify regarding her expert opinion that the medical
supplies at issue were not medically necessary—an opinion she reached
after reviewing this medical documentation. We conclude, for the reasons
set forth below, that the medical documentation should have been
admitted into evidence and, thus, we reverse the judgment and remit the
matter to the Civil Court for a new trial to afford defendant an
opportunity to establish its defense of lack of medical necessity.
The basis for this action is plaintiff's claim that it provided
medically necessary supplies to its assignor for injuries arising from a
covered accident, and that it was not paid for these supplies. In a
no-fault case, submission of a properly completed claim form is all that
is needed to establish, prima facie, that the supplies at issue were
medically necessary (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A],
2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]),
and, upon a demonstration that the claim form is admissible pursuant to
the business records exception to the hearsay rule (CPLR 4518), the
claim form will constitute sufficient prima facie evidence of the fact
and the amount of the loss sustained (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A],
2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists
2011]). Here, in limiting the trial to the issue of the medical
necessity of the supplies provided, the Civil Court implicitly found
that plaintiff had established these elements. In other words,
plaintiff, as the assignee of benefits under a no-fault insurance
policy, demonstrated its entitlement, in the first instance, to recover
payment for providing medical supplies to its assignor, without having
to proffer any specific testimony or proof as to the facts underlying
its claim, including the injury sustained or the treatment rendered by
the prescribing physician, or to affirmatively demonstrate that the
supplies were medically necessary. The burden then shifted to defendant
to establish a lack of medical necessity.[FN1]
[*3]
However, recognizing that it
would be impossible for an expert witness to proffer an opinion
regarding the medical necessity of the supplies at issue without
discussing the facts underlying the claim, plaintiff argues that
defendant must now prove those facts itself before being allowed to
present its defense that, based upon the information provided to it
regarding the injury sustained and the treatment rendered, it had
correctly denied the claim on the ground that the supplies were not
medically necessary. We reject plaintiff's argument.
A no-fault insurer cannot know with certainty, merely based upon
reviewing medical records, what injuries a patient sustained or how he
was treated—it can only act on what it has been told. The insurer is,
however, permitted to deny a no-fault claim based upon a peer review
report which opines that there was a lack of medical necessity for the
services or supplies provided (see Insurance Department
Regulations [11 NYCRR] § 65-3.8 [b] [4]). It follows that an insurer is
entitled, or even expected, to rely on the documents submitted to it by
the eligible injured person (and such person's assignees, who stand in
the shoes of the assignor [see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652
(2007)]), when determining whether to pay a claim or to deny it on the
ground that the services or supplies provided lacked medical necessity.
However, in denying a claim for a lack of medical necessity based
upon a peer review report, an insurer is not seeking to establish the
truth of the facts set forth in the medical documentation submitted to
it. Instead, as this court has previously explained, the insurer is
merely stating that, assuming the facts set forth in the medical
documentation are true, it is not required to pay for the services or
supplies at issue
because they were not medically necessary to treat the alleged injury (see Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A],
2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists
2010]). Thus, we reiterate that, in this context, the medical records
are not being used for a hearsay purpose, but rather only to demonstrate
that the information contained therein had been conveyed to defendant (see Quiroa v Ferenczi, 77 AD3d 901, 901 [2010]; Gelpi v 37th Ave. Realty Corp., 281 AD2d 392 [2001]; Urban Radiology, P.C.,
27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]). Here, there was testimony
sufficient to establish that the medical documentation reviewed by Dr.
Corcoran had in fact been submitted to defendant by plaintiff,
plaintiff's assignor, or other medical professionals who had provided
no-fault benefits to plaintiff's assignor. Accordingly, it was error to
sustain plaintiff's objection to the admissibility of the records.
We note that the holdings in Hambsch v New York City Tr. Auth. (63 NY2d 723 [1984]) and Wagman v Bradshaw
(292 AD2d 84 [2002]), where the plaintiffs' expert witnesses sought to
rely on out-of-court medical records in order to prove the fact of the
plaintiffs' injuries, are not relevant to the instant case, since
defendant is not relying on the medical documentation at issue to prove
the fact of plaintiff's assignor's injuries.
Ags Investigative Servs., Inc. v Sharma, 2012 NY Slip Op 22201 (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The evidence showed that, at the behest of defendant's attorney and with
defendant's consent, plaintiff performed investigative services for
defendant. Defendant was thus a disclosed principal of his former
attorney, who acted as defendant's agent. "An attorney who is
representing a client and who incurs litigation expenses with third
parties . . . acts as an agent for a disclosed principal and is not
personally liable for contracts made on behalf of the client unless the
attorney assumed responsibility." (Yellon v Sirlin, 27 Misc 3d 129[A], 2010{**36 Misc 3d at 66} NY Slip Op 50600[U], *2 [App Term, 9th & 10th Jud Dists 2010]; see also Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122 [2011]; Sullivan v Greene & Zinner,
283 AD2d 420 [2001].) The corollary to this proposition is that a
client, as principal, is liable on contracts entered into on his or her
behalf by an attorney acting as the client's authorized agent (see 2A NY Jur 2d, Agency and Independent Contractors § 291; see also Plymouth Rock Fuel Corp. v Leucadia, Inc.,
100 AD2d 842 [1984]). Thus, in this case, the Civil Court properly
concluded that defendant was obligated to pay plaintiff for the
investigative services plaintiff had rendered on behalf of defendant at
the request of defendant's attorney, whether or not defendant had
expressly agreed to such request for services.
W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
ORDERED that the judgment is reversed, without costs, so much of the order as
granted the branch of defendant's cross motion seeking summary judgment dismissing the claims
for which plaintiff had billed under CPT Code 97811 and for which defendant had denied all
payment is vacated, the branch of defendant's cross motion seeking summary judgment
dismissing those claims is denied, and the matter is remitted to the Civil Court for all further
proceedings. In this action by a provider to recover assigned
first-party no-fault benefits, plaintiff moved for summary judgment on all of its claims other than
its claim for dates of service from September 19, 2007 to September 28, 2007, and defendant
cross-moved for summary judgment dismissing all of plaintiff's claims other than plaintiff's claim
for dates of service from September 19, 2007 to September 28, 2007. The Civil Court, by order
entered May 24, 2010, denied plaintiff's motion and granted defendant's cross motion. A
judgment was subsequently entered, from which the appeal is deemed to have been taken
(see CPLR 5501 [c]). As the parties excepted from the Civil Court's consideration
plaintiff's claim for dates of service from September 19, 2007 to September 28, 2007, we do not
address that claim.
With respect to plaintiff's claims for acupuncture services billed under CPT Code 97810,
defendant demonstrated that it had fully paid plaintiff for those services in accordance with the
workers' compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico
Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the
Civil Court properly granted the branch of defendant's cross motion seeking summary judgment
dismissing plaintiff's claims for the unpaid portions of those bills.
With respect to plaintiff's claims for acupuncture services billed under CPT Code 97811,
defendant paid some of those claims at a reduced rate, but denied all payment for other such
claims. As to the claims for which defendant paid plaintiff at a reduced rate, defendant
demonstrated that it had fully paid plaintiff for those services in accordance with the workers'
compensation fee schedule for acupuncture services performed by chiropractors. Thus, the Civil
Court properly granted the branch of defendant's cross motion seeking summary judgment
dismissing those claims.
As to the claims for acupuncture services billed under CPT Code 97811 for which defendant
denied all payment, defendant based its denials on the ground that the CPT Code was "time
based," and that plaintiff had not provided documentation to substantiate the time for the
procedure. In support of its cross motion, defendant offered no explanation as to why in some
cases it had paid at the reduced rate, while in other cases it had denied all payment. As defendant
failed to provide an expert's affidavit to explain the discrepancy in how defendant interpreted the
fee schedule so as to permit reduced payment in some circumstances and no payment in others
(see Kingsbrook Jewish Med. Ctr. v
Allstate Ins. Co., 61 AD3d 13 [2009]), defendant did not
establish its prima facie entitlement to summary judgment with respect to the branch of its
cross motion seeking summary judgment dismissing those claims.
Note the dissent.
Five Boro Psychological Servs., P.C. v Praetorian Ins. Co., 2012 NY Slip Op 51336(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its cross motion, defendant asserted that it had timely denied plaintiff's claim
based on the failure of plaintiff's assignor to appear for two scheduled independent medical
examinations (IMEs) — an initial IME scheduled for March 9, 2007 and a follow-up IME
scheduled for March 23, 2007. In her affidavit, the president of Media Referral, Inc., the
independent medical review service retained by defendant to schedule IMEs, stated that within
48 hours prior to the IME scheduled for March 9, 2007, plaintiff's assignor called to cancel that
IME. Accordingly, Media Referral, Inc. mailed a letter on March 8, 2007, rescheduling the
March 9, 2007 IME for March 23, 2007.
Upon the record presented, we find that defendant failed
to establish that plaintiff's assignor had failed to appear for two scheduled IMEs, as defendant did
not establish, as a matter of law, that its March 8, 2007 letter did not represent a mutual
agreement to reschedule the first IME (see e.g. Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d
94 [App Term, 2d & 11th Jud Dists 2006]). Consequently, defendant's motion for summary
judgment dismissing the complaint was properly denied (CPLR 3212 [b]; see Zuckerman v
City of New York, 49 NY2d 557 [1980]).
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51337(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
While defendant's initial IME scheduling letter was timely mailed, the record reflects that,
after plaintiff's assignor had failed to appear for the IME, the follow-up IME scheduling letter
was not timely mailed (see Insurance Department Regulations [11 NYCRR] §
65-3.6 [b]; § 65-3.8 [j]). As a result, defendant failed to toll the 30-day statutory time period
in which it had to pay or deny the claims (see Insurance Department Regulations [11
NYCRR] § 65-3.5 [a]; Insurance Law 5106 [a]; Westchester Med. Ctr. v Lincoln Gen.
Ins. Co., 60 AD3d 1045, 1045-1046 [2d Dept 2009]). Consequently, defendant's denial of
claim forms were untimely and defendant was precluded from offering its defense that a policy
provision had been breached due to the assignor's failure to appear for IMEs (see Westchester
Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; but see Unitrin Advantage Ins. Co.
v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]) as well as its defense
that the fees sought were improper.
Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51347(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiff argues on appeal that defendant's motion should have been denied because
defendant failed to establish that its denial of claim forms constituted evidence in admissible
form pursuant to the business records exception to the rule against hearsay as set forth in CPLR
4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish
the truth of the matters asserted therein, but rather to show that the denials had been sent and that,
therefore, the claims had been denied. As the denial of claim forms were not offered for a hearsay
purpose, they did not need to qualify as business records (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins.
Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]
[App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d
141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 51348(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In the instant case, defendant failed to establish that the EUO scheduling letters had been
timely mailed (see St. Vincent's Hosp.
of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th
Jud Dists 2007]); thus, defendant did not demonstrate that the 30-day claim determination period
(Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. Defendant's
moving papers did not contain an affidavit from a person with knowledge attesting to the fact
that the EUO scheduling letters had actually been mailed or describing the standard office
practice or procedure used to ensure that such requests are properly mailed or addressed,
although defendant did attach copies of the certificate of mailings (cf. Delta Diagnostic
Radiology, P.C., 17 Misc 3d 16; see All Boro Psychological Servs., P.C. v State Farm
Mut. Auto. Ins. Co., ___ Misc 3d ___, 2012 NY Slip Op _____ [Appeal No. 2010-1767 K
C], decided herewith]). As a result, defendant failed to establish that its denial of claim form was
timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff's owner
to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90
NY2d 274 [1997]).
Accordingly, the order is affirmed, albeit on a ground other than the one relied upon by the
Civil Court. We note that, contrary to the court's determination, there is no requirement that EUO
scheduling letters conspicuously highlight the information contained therein by use of, among
other things, a bold font (see Insurance Department Regulations [11 NYCRR] §
65-3.5 [b], [e]; GLM Med., P.C. v State
Farm Mut. Auto. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50194[U] [App Term,
2d, 11th & 13th Jud Dists 2011]).
Village Med. & Rehab v Travelers Indem. Co., 2012 NY Slip Op 51349(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The June 3, 2010 stipulation was not "so-ordered" and, thus, did not function as a conditional order of preclusion which becomes absolute upon a
failure to comply (see e.g. Panagiotou v
Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908
[2007]; Midisland Med., PLLC v NY
Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d,
11th & 13th Jud Dists 2010]). However, it was subscribed by the parties' attorneys (see
CPLR 2104). It is well settled that stipulations are independent contracts that are subject to the
principles of contract law (see Hallock v State of New York, 64 NY2d 224, 230 [1984];
Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d
551 [2002]). The record does not demonstrate that the stipulation was entered into through fraud,
collusion, mistake or accident, or that the stipulation was unjust or inequitable, or would provide
anyone with an unconscionable advantage (see Hallock, 64 NY2d at 230; Malvin v
Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]). The parties voluntarily
entered into the stipulation, and it is uncontroverted that plaintiff violated its terms by failing to
timely respond to defendant's discovery demands. Contrary to the determination of the Civil
Court, we find that plaintiff's 38-day delay in providing its responses was not de minimis. Since,
by the terms of the stipulation, plaintiff is "precluded from offering evidence at trial," plaintiff
cannot establish its prima facie case.
Natural Therapy Acupuncture, P.C. v Interboro Ins. Co., 2012 NY Slip Op 51350(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit by defendant's claims representative established that the denial of claim forms
at issue had been timely mailed (see St.
Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to
plaintiff's first cause of action, defendant demonstrated that plaintiff's assignor's insurance policy
contained a $200 deductible (see Insurance
Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of
the claim form at issue in the first cause of action due to said deductible (see Innovative Chiropractic, P.C. v
Progressive Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50148[U] [App Term, 2d,
11th & 13th Jud Dists 2010]). As to the remaining unpaid portions of the claim form at issue in
the first cause of action, defendant demonstrated that the amounts sought by plaintiff exceeded
the amounts permitted by the workers' compensation fee schedule and that defendant had fully
paid plaintiff for the services billed for in accordance with the fee schedule (see Great Wall Acupuncture, P.C. v GEICO
Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). As to plaintiff's
third and fourth causes of action, defendant likewise demonstrated that it had fully paid plaintiff
for the services billed for in accordance with the fee schedule (id.). Although the denial
of claim forms offered by defendant in support of its motion did not include every page of these
forms, the forms sufficiently apprised plaintiff "with a high degree of specificity of the ground or
grounds on which the [denials were] predicated" (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664
[2004]) and the omitted pages "did not pose any possibility of confusion or prejudice to . . .
[plaintiff] under the circumstances" (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d
1190, 1191 [2011]).
With respect to plaintiff's second cause of action, the affidavit by defendant's claims
representative contained more than a mere conclusory denial of receipt of the claim form
allegedly mailed to it (cf. Top Choice
Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U]
[App Term, 2d, 11th & 13th Jud Dists 2011]) and sufficiently established that defendant had not
received that claim form (see Matter of Government Empls. Ins. Co. v Morris, __ AD3d
__, 2012 NY Slip Op 03448 [2012]). In the absence of a sworn statement by someone with
personal knowledge attesting to plaintiff's submission of the claim form at issue in the second
cause of action, defendant was entitled to summary judgment dismissing the second cause of
action as well (see Fiveborough
Chiropractic & Acupuncture, PLLC v American Employers' Ins. Co. Div. of Onebeacon Am. Ins.
Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists
2009]; cf. Top Choice Med., P.C., 33 Misc 3d 137[A], 2011 NY Slip Op
52063[U]).
Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 2012 NY Slip Op 51294(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
A prior arbitration proceeding involving one claimant provider seeking reimbursement of
assigned first-party no-fault benefits does not preclude another provider from commencing its
own action seeking reimbursement of assigned no-fault benefits, even where the claims have
been assigned by the same individual and have arisen from the same accident (see Jamaica Med. Supply, Inc. v NY Cent.
Mut. Fire Ins. Co., 34 Misc 3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen.
Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66
NY2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party
no-fault benefits waived the right to commence an action to litigate subsequent claims arising
from the same accident]). Since the arbitration proceeding upon which the court relied had been
commenced by a different provider, Alexander Berenblit, M.D., not plaintiff herein, the
complaint was improperly dismissed on the ground that arbitration was the proper forum for this
dispute.
We reject defendant's alternative ground for its motion as well. Defendant failed to
demonstrate that it had timely denied the claims at issue based upon plaintiff's assignor's failure
to appear for an EUO, and therefore that it is not precluded from asserting its proffered defense
that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen.
Ins. Co., 60 AD3d 1045 [2009]). Furthermore, the doctrine of collateral estoppel applies
only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins.
Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was a party, or
in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is
inapplicable (see Magic Recovery Med.
& Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d,
11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc
3d at 23).
3 Star Acupuncture, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 51295(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court
properly denied the branches of defendant's cross motion seeking summary judgment dismissing
the sixth through tenth causes of action as there is a triable issue
of fact regarding the medical necessity of the acupuncture services at issue (see
Zuckerman v City of New York, 49 NY2d 557 [1980]).
Tsatskis v State Farm Fire & Cas. Co., 2012 NY Slip Op 51268(U) (App. Term, 9th & 10th Jud. Dists. 2012).
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial
was held, limited by stipulation to defendant's defense that plaintiff's assignor had failed to
appear for duly scheduled examinations under oath (EUOs) and to the issue of whether
defendant's denials of plaintiff's 16 claims on that ground had been timely. In a decision after
trial, the District Court awarded judgment in favor of defendant. Plaintiff moved, pursuant to
CPLR 4404 (b), to set aside the decision and to direct the entry of judgment in favor of plaintiff
or, in the alternative, for a new trial. The District Court granted the motion and directed the entry
of judgment in favor of plaintiff on all 16 claims on the ground that defendant had failed to
demonstrate that the insurance policy at issue contained an endorsement permitting EUOs.
As plaintiff essentially concedes on appeal, the District Court's basis for its determination
lacks merit. Effective April 5, 2002, the mandatory personal injury endorsement contains a
provision providing for EUOs (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1 [b]). The accident in question occurred on March 29, 2008. Since the policy in this
case would have been issued after 2002, it would necessarily have contained a provision for
EUOs, and, thus, defendant was not required to produce the policy to establish the existence of
such a provision (see Mega Supplies
Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op
52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d
140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem.
Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud
Dists 2008]). Indeed, "[e]ven if the insurance policy did not contain an EUO provision, the policy
would be construed as though it did" (Mega Supplies Billing, Inc., 33 Misc 3d 136[A],
2011 NY Slip Op 52023[U], *1).
However, for the reasons set forth in plaintiff's motion papers and again in its brief on
appeal, plaintiff is entitled to judgment on its first 14 claims. It is undisputed that the first request
for an EUO was sent more than 30 days after defendant had received the first 13 claims at issue
here. Thus, there was no tolling as to those claims and defendant's denials of those claims were
untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; St. Vincent Med. Care, P.C. v Travelers
Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U] [App Term, 2d, 11th & 13th
Jud Dists 2010]). As to the 14th claim, while the request for the EUO was made within 30 days
of the receipt of the claim, the denial of claim form was untimely (see Insurance
Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [j]). Consequently, as to
the first 14 claims, defendant is precluded from asserting the defense of noncompliance with its
requests for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-3.5
[b]; § 65-3.8 [j]; St. Vincent Med.
Care, P.C. v Travelers Ins. Co., 26 Misc 3d 144[A], 2010 NY Slip Op 50446[U]).
Therefore, we leave undisturbed so much of the order as granted the branches of plaintiff's
motion seeking to set aside the portion of the decision that awarded defendant judgment
dismissing the first 14 claims, and for judgment in plaintiff's favor on those claims (see
Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539 [1983]).
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51270(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant's cross motion for summary judgment was properly denied. Defendant failed to
establish that the initial verification and follow-up verification requests were timely mailed to
plaintiff's assignor (see St. Vincent's
Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Since defendant
did not prove that the 30-day claim determination period was tolled (see Insurance
Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of
claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of
plaintiff's assignor to appear at an independent medical examination (see Presbyterian Hosp.
in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive
Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th
Jud Dists 2010]).
A.M. Med., P.C. v General Assur. Co., 2012 NY Slip Op 51272(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The March 2009 stipulation was not "so-ordered" so as to function as a conditional order of
preclusion which became absolute upon plaintiff's failure to comply (cf. Panagiotou v Samaritan Vil., Inc.,
66 AD3d 979 [2009]; State Farm
Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Midisland Med., PLLC v NY Cent. Mut.
Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th
Jud Dists 2010]). However, it was subscribed by the parties' attorneys (see CPLR 2104).
While defendant violated the terms of the stipulation by taking more than 60 days to respond to
plaintiff's discovery demands, defendant substantially complied with the stipulation by providing
responses which were, at most, four days late. Although discovery determinations rest within the
sound discretion of the trial court, an appellate court is vested with corresponding power to
substitute its own discretion even when there is no abuse by the trial court (see Andon v
302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; Staten v City of New York, 90 AD3d 893 [2011]). Upon the
exercise of our discretion, we find that plaintiff's motion for an order of preclusion should have
been denied.
A review of the record indicates that plaintiff failed to establish its prima facie entitlement to
summary judgment since the affidavit it submitted in support of its motion was insufficient to
establish that the documents annexed thereto were admissible purusant to CPLR 4518 (see Art of Healing Medicine, P.C. v
Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut.
Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result,
plaintiff is not entitled to summary judgment. With respect to defendant's amended cross motion,
since the affidavit by defendant's litigation examiner did not establish when the denial of claim
form was mailed to plaintiff, defendant did not show that it had timely denied the claims.
Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing
the complaint.
Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 51276(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
While plaintiff maintains that an
insurer must advise an applicant that its failure to appear for an EUO will be excused where the
applicant provides reasonable justification for the nonappearance, we find no basis in the
regulations for imposing such a requirement (cf. Insurance Department Regulations [11
NYCRR] § 65-3.3 [e]).
Eagle Surgical Supply, Inc v Mercury Cas. Co., 2012 NY Slip Op 51286(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its motion, defendant submitted, among other things, an affirmed peer review
report, which did not establish a factual basis and medical rationale for the doctor's determination
that there was a lack of medical necessity for the supplies provided inasmuch as the doctor
merely asserted that he had insufficient documentation and information (see Midisland Med., PLLC v Allstate Ins.
Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51861[U] [App Term, 2d & 11th Jud Dists
2008]). Moreover, defendant did not demonstrate that it had sought to obtain such information by
means of a verification request. Thus, defendant failed to establish its entitlement to summary judgment dismissing the complaint as a
matter of law (see id.; A.B. Med.
Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op
50114[U] [App Term, 2d & 11th Jud Dists 2005]).
Horizon Med., P.C. v Travelers Prop. Cas. Ins. Co., 2012 NY Slip Op 51288(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The May 2010 stipulation was not "so-ordered" and, thus,
did not function as a conditional order of preclusion which becomes absolute upon a failure to
comply (see e.g. Panagiotou v Samaritan
Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908
[2007]; Midisland Med., PLLC v NY
Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d,
11th & 13th Jud Dists 2010]). However, it was subscribed by the parties' attorneys (see
CPLR 2104). Stipulations of settlement are independent contracts that are subject to the
principles of contract law, and a party will be relieved from the consequences of a stipulation
made during litigation only where there is cause sufficient to invalidate a contract, such as fraud,
collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230
[1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez,
299 AD2d 551 [2002]). The courts will generally deny enforcement of a stipulation where its
enforcement would be unjust or inequitable, or would permit the other party to gain an
unconscionable advantage (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48
NY2d 693 [1979]).
Defendant's discovery demands included, among other things, a request for a declaration as
to whether plaintiff had submitted any no-fault claims and, if so, copies of those claims. As
plaintiff failed to respond to this demand, we find no basis to deny enforcement of the
stipulation, pursuant to which plaintiff is precluded from offering evidence of its claims.
Consequently, plaintiff cannot make out its prima facie case.
Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 51289(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
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 pursuant to CPLR 3211 (a)
(5) to dismiss the complaint on the ground of collateral estoppel.
Collateral estoppel is a specific form of res judicata which bars "a party from relitigating in a
subsequent action or proceeding an issue clearly raised in a prior action or proceeding and
decided against that party or those in privity, whether or not the tribunals or causes of action are
the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "In order to invoke
the doctrine, the identical issue must necessarily have been decided in the prior action or
proceeding and be decisive of the present action or proceeding, and the party to be precluded
from relitigating the issue must have had a full and fair opportunity to contest the prior
determination" (Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d
777, 778 [2008]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v
Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Furthermore, the party seeking to
rely on collateral estoppel has the burden of establishing that the issue actually litigated and
determined in the prior action is identical to the issue on which preclusion is sought (see
Forcino v Miele, 122 AD2d 191, 193 [1986]; Concord Delivery Serv., Inc. v Syossot Props., LLC, 19 Misc 3d
40, 43 [App Term, 9th & 10th Jud Dists 2008]). The party attempting to defeat the
application of collateral estoppel has the burden of establishing the absence of a full and fair
opportunity to litigate (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659,
664 [1990]; Uptodate Med. Servs., P.C.
v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d, 11th & 13th Jud
Dists 2009]).
In the case at bar, defendant established that the issue whether the assignor's injuries arose
"out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d
195, 199 [1997]) was identical to the issue previously decided by the jury in an earlier personal
injury action which plaintiff's assignor had commenced against defendant's insured. In support of
its motion, defendant submitted a copy of the verified complaint from the prior action, in which it
was alleged that defendant's insured "struck" plaintiff's assignor with her car, a transcripted copy
of the jury verdict, in which the jury determined that the vehicle of defendant's insured never
made "contact" with plaintiff's assignor, and a copy of the judgment dismissing the prior action.
Thus, defendant demonstrated that plaintiff was ineligible to receive reimbursement of no-fault
benefits because the assignor's injuries did not result from an insured incident (see Central
Gen. Hosp., 90 NY2d at 199).
Richmond Radiology, P.C. v State Farm Ins. Co., 2012 NY Slip Op 51293(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
We note
that defendant's objection on appeal to the fact that plaintiff's submission was affirmed, not
sworn, was waived, as defendant failed to raise that objection in the Civil Court (see Delta Diagnostic Radiology, P.C. v
Interboro Ins. Co., 29 Misc 3d 137[A], 2010 NY Slip Op 52022[U] [App Term, 2d, 11th
& 13th Jud Dists 2010]; Continental
Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App
Term, 2d, 11th & 13th Jud Dists 2009]).
Vista Surgical Supplies, Inc. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51056(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits,
plaintiff's owner testified that he had mailed the claim form in question by certified mail, return
receipt requested. However, the certified mail receipt and domestic return receipt which he
offered as proof of mailing lacked certain material information. Significantly, the certified mail
receipt did not contain amounts for postage and fees, and did not have a clerk identification and
date, and the return receipt was not signed by a recipient and did not indicate a date of delivery.
Defendant's witness testified that defendant had not received the claim form in question until
after the commencement of the action, some three years after the purported mailing.
In a decision after trial, the Civil Court found that
plaintiff had not established a prima facie case as it had not proved a timely mailing of the claim
form in question. A judgment dismissing the complaint was subsequently entered. We deem the
notice of appeal from the decision to be a premature notice of appeal from the judgment
(see CPLR 5520 [c]).
The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious
that the court's conclusions could not be reached under any fair interpretation of the evidence
(see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of
fact as to issues of credibility is given substantial deference, as the trial court's opportunity to
observe and evaluate the testimony and demeanor of witnesses affords it a better perspective
from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564
[1992]; Kincade v Kincade, 178 AD2d 510 [1991]).
In the present case, the record supports the determination of the Civil Court, based upon its
assessment of the credibility of the witnesses and the proof adduced at trial, that plaintiff failed to
satisfy its burden of proving that the claim form in question had been timely and properly mailed
to defendant. Accordingly, as we find no basis to disturb the Civil Court's findings, the judgment
is affirmed.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51057(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit executed by defendant's claims examiner was sufficient to establish that
defendant's NF-10 forms, which denied plaintiff's claims on the ground of lack of medical
necessity, had been timely mailed (see
St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008];
Delta Diagnostic Radiology, P.C. v
Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Plaintiff
argues on appeal, as it did in the Civil Court, that the peer
review reports defendant submitted in support of its cross motion for summary judgment were
not in admissible form. We agree, as the peer review reports were affirmed by a psychologist,
which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d
145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins.
Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud
Dists 2010]). We note that, although one of the peer review reports contained a notary public's
stamp and signature, it did not include an attestation that the psychologist had appeared before
the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d
145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins.
Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75
AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]).
Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).
Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 2012 NY Slip Op 51058(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The record establishes that, on December 2, 2008, defendant requested that plaintiff's
assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff's assignor
failed to appear for the EUO. However, defendant did not mail a second request until February
12, 2009. As this follow-up request was untimely (see Insurance Department Regulations
[11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period
(Insurance Department Regulations [11 NYCRR] §
65-3.8 [a] [1]), and, as a result, defendant's denial of plaintiff's claim was untimely.
Consequently, the Civil Court properly denied defendant's cross motion for summary judgment,
which was based upon the defense that plaintiff's assignor had failed to appear for an EUO.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we
do not pass upon the propriety of the Civil Court's determination with respect thereto.
Queens Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51060(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
On a motion by a defendant insurance company for summary judgment based on a claim that
the insurance policy had been cancelled, the initial burden is on the insurer to demonstrate a valid
cancellation of the insurance policy. Once the insurance company makes a prima facie showing
that it had timely and validly cancelled the policy in compliance with Vehicle and Traffic Law § 313, the burden shifts to the party claiming
coverage to establish noncompliance with the statutory requirements as to form and procedure
(see Matter of Auto One Ins. Co. v Forrester, 78 AD3d 1174 [2010]; GEICO Indem. v
Roth, 56 AD3d 1244, 1245 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v
Cherian, 202 AD2d 434, 435 [1994]). The papers submitted in support of defendant's cross
motion were sufficient to demonstrate, prima facie, that defendant had timely and validly
cancelled the insurance policy in question (see Matter of Auto One Ins. Co. v Forrester,
78 AD3d at 1175; GEICO Indem. v Roth, 56 AD3d at 1245; Montefiore Med. Ctr. v
Liberty Mut. Ins. Co., 31 AD3d 724, 725 [2006]; Matter of State Farm Mut. Auto. Ins.
Co. v Cherian, 202 AD2d at 435), thereby shifting the burden to plaintiff. In opposition to
the motion, plaintiff did not raise a triable issue of fact as to the validity of the cancellation
(see Matter of Auto One Ins. Co. v Forrester, 78 AD3d at 1175; Tobias v Liberty Mut.
Fire Ins. Co., 78 AD3d 928 [2010]).
Infinity Health Prods., Ltd. v Travelers Ins. Co., 2012 NY Slip Op 51063(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
We find that the Civil Court improperly granted plaintiff summary judgment on the first and
second causes of action. While the court accepted defendant's allegation that the medical
equipment at issue in this case was not delivered directly to plaintiff's assignor, plaintiff
submitted an affidavit which squarely contradicts that allegation. Since the key to summary
judgment is issue finding, not issue determination (see Sillman v Twentieth Century-Fox
Film Corp., 3 NY2d 395 [1957]), neither party should have been granted summary judgment
on the first and second causes of action. Accordingly, the judgment is reversed, so much of the
order as granted the branches of plaintiff's motion seeking summary judgment on the first and
second causes of action is vacated, and the branches of plaintiff's motion seeking summary
judgment on the first and second causes of action are denied.
The Civil Court correctly denied the branch of defendant's motion seeking summary
judgment dismissing the third cause of action, as defendant proffered only conclusory allegations
that plaintiff had submitted insufficient responses (see A.B. Med. Servs., PLLC v Country-Wide Ins. Co., 23 Misc 3d
140[A], 2009 NY Slip Op 51016[U] [App Term, 9th & 10th Jud Dists 2009]). However,
there is no basis in the record for the Civil Court's finding of the existence of a triable issue of
fact as to whether defendant's verification requests were proper. Accordingly, the order, insofar
as reviewed on direct appeal, is modified by providing that the only triable issue of fact
remaining as to the third cause of action is whether verification is still outstanding.
Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 2012 NY Slip Op 51064(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In our opinion, the Civil Court improvidently exercised its discretion in granting the branch
of defendant's motion, pursuant to CPLR 3126, seeking to preclude plaintiff from offering
evidence at trial related to the discovery requested (see Castor Petroleum, Ltd. v
Petroterminal de Panama, S.A., 90 AD3d 424 [2011]; Allen v Calleja, 56 AD3d 497
[2008]), particularly in light of the fact that, at the time the motion was heard by the court,
plaintiff had already responded to defendant's discovery requests, which had first been served on
plaintiff only six weeks before the motion was brought. The drastic remedy of preclusion is
inappropriate absent a clear showing that a party's failure to comply with discovery demands was
willful or contumacious (see Polsky v Tuckman, 85 AD3d 750 [2011]; Mazza v
Seneca, 72 AD3d 754 [2010]; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654
[2010]; Dank v Sears Holding Mgt. Corp., 69 AD3d 557 [2010]). Here, defendant failed
to make such a showing. Moreover, with respect to the Civil Court's determination to preclude
plaintiff from presenting evidence at trial related to the discovery requested because a mere
employee of plaintiff's corporation had responded to the discovery requests, we note that it is not
improper for an employee who has the requisite knowledge and data to respond on behalf of his
or her corporation (see Necchi S.P.A. v Nelco Sewing Mach. Sales Corp., 23 AD2d 543
[1965]; Southbridge Finishing Co. v Golding, 2 AD2d 430 [1956]; Siegel, NY Prac
§ 345, at 573; § 361, at 613 [5th ed]). Accordingly, we reverse the order and deny the
branch of defendant's motion seeking to preclude plaintiff from presenting evidence at trial
related to the discovery requested.
Yklik, Inc. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 51066(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its motion for summary judgment, defendant submitted an affidavit by its
no-fault litigation examiner, who stated, among other things, that defendant had requested that
"National Claim Evaluations, Inc. . . . schedule an acupuncturist/ chiropractic IME of Plaintiff's
assignor." Defendant did not submit an affidavit by an
employee of National Claim Evaluations, Inc. to establish that the IME had been scheduled.
Rather, defendant submitted an affidavit by an employee of Transcion Corporation, which
managed all of the administrative requirements of Transcion Medical, P.C., who stated, among
other things, that defendant had hired Transcion Medical, P.C. to schedule IMEs of the assignor.
In view of the foregoing discrepancy, the Civil Court properly determined that defendant had
failed to establish its defense based upon the failure of plaintiff's assignor to appear at an IME.
PDG Psychological, P.C. v State Farm Mut. Ins. Co., 2012 NY Slip Op 51067(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court
(Diane A. Lebedeff, J.), by order entered September 30, 2009, granted the branch of a motion by
defendant seeking to compel plaintiff to provide responses to defendant's outstanding discovery
demands. The order required plaintiff to produce, among other things, the personal tax returns of
its principal owner within 30 days of the date of the order, and provided that plaintiff's
noncompliance would "result in dismissal of plaintiff's complaint with prejudice by filing an
affidavit of noncompliance and settle [sic] order." Thereafter, defendant served plaintiff
with a proposed order with notice of settlement and an affirmation of noncompliance alleging
that plaintiff had failed to produce the aforementioned tax
returns. By order entered May 13, 2010, the Civil Court (Richard G. Latin, J.) dismissed the
complaint with prejudice. Plaintiff contested neither the affirmation of noncompliance nor the
proposed order.
Plaintiff then moved, pursuant to CPLR 5015 (a) (3), to, in effect, vacate the order
dismissing the complaint on the ground that defendant had misrepresented plaintiff's
noncompliance with the order entered September 30, 2009. By order entered September 15,
2010, the Civil Court (Maureen A. Healy, J.) denied the motion.
Plaintiff's contention on appeal, in effect, that defendant did not timely submit the proposed
order with notice of settlement for court approval in accordance with Uniform Rules for New
York City Civil Court (22 NYCRR) § 208.33 (a) is unpreserved for appellate review
because plaintiff failed to raise the issue in the Civil Court (see Peerless Ins. Co. v Casey,
194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596, 597
[1992]; cf. Mora v Mora, 39 AD3d 829 [2007]).
Furthermore, plaintiff failed to satisfy its burden of establishing the existence of any
misrepresentation on the part of defendant because plaintiff did not demonstrate that it had, in
fact, produced the personal tax returns of its principal owner in compliance with the order
entered September 30, 2009 (see CPLR 5015 [a] [3]; see generally Welz v Welz,
83 AD3d 696, 697 [2011]).
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co., 2012 NY Slip Op 51071(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
As the affirmed peer review report submitted by defendant failed to clearly establish a
sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the
services at issue (compare Delta
Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip
Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d
128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]), defendant's
motion was properly denied.
Leica Supply, Inc. v Encompass Indem. Co., 2012 NY Slip Op 50890(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Plaintiff's argument
that its assignor's failure to appear for the duly scheduled EUOs permitted only the denial of
pending claims is without merit (see
ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op
52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51013(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to plaintiff's argument on appeal, defendant was not required to annex to its motion
papers copies of the medical records which were reviewed by defendant's peer reviewer (see
Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30
Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State
Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d,
11th & 13th Jud Dists 2010]).
Midwood Total Rehabilitation Med., P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50931(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
The affidavit
by an employee of Independent Physical Exam Referrals, the entity which had scheduled the
independent medical examinations (IMEs) involved herein on behalf of defendant, established
that the IME scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 [2008]; Delta
Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d &
11th Jud Dists 2007]).
Alfa Med. Supplies v GEICO Gen. Ins. Co., 2012 NY Slip Op 50934(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Contrary to plaintiff's argument on appeal, defendant was not required to annex to its motion
papers copies of the medical records which had been reviewed by defendant's peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent.
Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th &
10th Jud Dists 2010]; Urban Radiology,
P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]
[App Term, 2d, 11th & 13th Jud Dists 2010]). Furthermore, while plaintiff argues that the peer
review report contained an electronic stamped facsimile of the peer reviewer's signature and, as a
result, the report was inadmissible, the record indicates that the facsimile signature was
permissibly placed on the report by the chiropractor who had performed the peer review (see Quality Health Prods. v Geico Gen. Ins.
Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud
Dists 2011]; Eden Med., P.C. v
Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th
& 13th Jud Dists 2010]).
Exclusive Physical Therapy, P.C. v MVAIC, 2012 NY Slip Op 50862(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant did not establish the actual mailing of the denial of claim forms or defendant's
standard office practice and procedure for the mailing of the denial of claim forms during the
pertinent time period. We note that, in his affidavit, defendant's claims representative stated that he had begun working for defendant after the denial of claim
forms at issue had allegedly been mailed by defendant. Consequently, defendant failed to show
that its denial of claim forms had been timely mailed (South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d
129[A], 2011 NY Slip Op 51300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see St. Vincent's Hosp. of Richmond v
Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and, thus, that it was not precluded
from asserting the ground raised in support of its motion for summary judgment. Defendant,
therefore, failed to establish its entitlement to summary judgment dismissing the complaint. In
light of the foregoing, we reach no other issue.
Medical Polis, P.C. v Progressive Ins. Co., 2012 NY Slip Op 50864(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Notwithstanding defendant's failure to assert in its answer a defense pursuant to State Farm Mut. Auto. Ins. Co. v
Mallela (4 NY3d 313 [2005]), it was not precluded from seeking discovery related to
that defense, since defendant made sufficient allegations in its moving papers that plaintiff, a
professional service corporation, is ineligible to recover no-fault benefits because it fails to
comply with applicable state or local licensing requirements (Lexington Acupuncture, P.C. v
General Assur. Co., ___ Misc 3d ___, 2012 NY Slip Op 22047 [App Term, 2d, 11th & 13th Jud Dists 2012]; Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d
153[A], 2012 NY Slip Op 50342[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).
Consequently, the court did not improvidently exercise its discretion in granting the branches of
defendant's motion seeking to compel disclosure and thereafter to produce plaintiff's owner,
Nikolai Lagoduke, for an examination before trial. In light of the foregoing, the court properly
denied plaintiff's cross motion for a protective order and summary judgment (see CPLR
3212 [f]).
Mike Supply, Inc. v Progressive Ins. Co., 2012 NY Slip Op 50872(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
Defendant moved for summary judgment dismissing the complaint on the ground of lack of
medical necessity. In opposition to the motion, plaintiff demonstrated that there was a triable issue of fact as to whether the supplies at issue were
medically necessary (see generally Zuckerman v City of New York, 49 NY2d 557
[1980]). Accordingly, the judgment is reversed, the order granting defendant's motion for
summary judgment dismissing the complaint is vacated and the motion is denied.
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50880(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
In support of its motion for summary judgment, defendant submitted an affidavit by an
employee of National Claim Evaluations, Inc. (NCEI), an entity which had scheduled
independent medical examinations (IMEs) of plaintiff's assignor on behalf of defendant. The
affidavit established that the IME scheduling letters had been timely mailed in accordance with
NCEI's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50
AD3d 1123 [2008]; Delta
Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d &
11th Jud Dists 2007]). Defendant also submitted an affidavit from its examining
chiropractor/acupuncturist, who stated that plaintiff's assignor had failed to appear for the
scheduled IMEs. An affidavit executed by defendant's litigation examiner demonstrated that
denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth
causes of action based upon the failure of plaintiff's assignor to appear for the IMEs, had been
timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta
Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim
at issue in the third cause of action.
W.H.O. Acupuncture, P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 50884(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2012)
While defendant demonstrated, prima facie, that it had timely denied the claims at issue, by
submitting an affidavit of an employee of its claims division setting forth defendant's standard
office practices and procedures for mailing denial of claim
forms (see St. Vincent's Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb
Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), plaintiff's
employee's affidavit, submitted in support of plaintiff's motion for summary judgment, created a
triable issue of fact as to whether the claim for services rendered from August 2, 2007 to August
9, 2007 had been timely denied. As a result, defendant's motion for summary judgment
dismissing the complaint should not have been granted as to that claim.
Lower Courts
You're lucky I get this far. I'll post the lower court decisions at my leisure. Probably never.
thecplrblog 