App. Term 2nd
New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 2011 NY Slip Op 21240 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
Plaintiff argues that the "affidavit" of its psychologist, submitted in opposition to defendant's motion for summary judgment, was sufficient to raise a triable issue of fact. However, the "affidavit," which contained a notary public's stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public (cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). While there is no specific form of oath required in New York (see General Construction Law § 36), an oath is to be "calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs" (CPLR 2309 [b]). We find that inasmuch as the omissions in plaintiff's submission constituted more than a mere defect in form, plaintiff's "affidavit" failed to meet the requirements of CPLR 2309 (b). Accordingly, the judgment is affirmed.
A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21243 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by providers to recover assigned first-party no-fault benefits, the Civil Court denied plaintiffs' motion for summary judgment on the ground that plaintiffs had failed to establish their prima facie case. On appeal, this court affirmed the order, stating that, while plaintiffs had established their prima facie entitlement to summary judgment, defendant had demonstrated that there was a triable issue of fact (A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51859[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiffs then moved in the Civil Court for, among other things, an order, pursuant to CPLR 3212 (g), deeming the facts necessary to demonstrate plaintiffs' prima facie case established for all purposes in the action, arguing that they were entitled to such relief in light of this court's prior determination that plaintiffs had established their prima facie case but that defendant's papers were sufficient to raise a triable issue of fact. The Civil Court granted this branch of plaintiffs' motion, and defendant appeals.
An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court's finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing party to raise a triable issue of fact, just as a court's "denial of a motion for summary judgment establishes nothing except that summary judgment is not warranted at this time" (Siegel, NY Prac § 287, at 487 [5th ed]).
In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff's case. It follows, then, that there is nothing in this court's order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs' case. As a result, the Civil Court improperly relied upon this court's prior order in limiting the issues for trial pursuant to CPLR 3212 (g).
Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
By order entered September 10, 2009, the Civil Court denied, as premature, plaintiff's cross motion for summary judgment and granted defendant's motion to the extent of vacating the notice of trial and striking the matter from the trial calendar, and directing plaintiff to provide defendant with "written discovery including answering verified written interrogatories and combined demands (such as tax returns and management/lease agreements)." The order further directed plaintiff to produce its owners for an examination before trial within 45 days after service of the written discovery. This appeal by plaintiff ensued, and we affirm.
It is undisputed that the discovery demanded was not provided by plaintiff. Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant's motion seeking to vacate the notice of trial and strike the matter from the trial calendar (see Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As discovery was outstanding, the Civil Court also properly denied, as premature, plaintiff's cross motion for summary judgment. Moreover, since the record indicates that plaintiff made no attempt in the Civil Court to challenge the propriety of defendant's discovery demands (see CPLR 3103, 3122 [a]; 3133 [a]), plaintiff must comply with the Civil Court's direction that it provide responses to defendant's discovery demands.
Pdg Psychological, P.C. v Clarendon Natl. Ins. Co., 32 Misc 3d 130(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that "[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted." By order entered March 2, 2004, plaintiff's motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant's discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant's motion seeking to vacate the default judgment and denied the branch of defendant's motion seeking to dismiss the complaint. This appeal by defendant ensued.
Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant's conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Sutter v Rosenbaum, 166 AD2d 644, 645 [1990]; Myers v Slutsky, 139 AD2d 709, 710 [1988]). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant's motion seeking to dismiss the complaint as abandoned.
Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that the sole issue to be litigated would be whether the services rendered to plaintiff's assignor were medically necessary. At a nonjury trial, the Civil Court granted plaintiff's motion to preclude the testimony of defendant's witness, the psychologist who had prepared the peer review report upon which defendant's claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48.
In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying (see 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]; Spruce Med. & Diagnostic, P.C. v Lumbermen's Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept 2007]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Accordingly, the judgment is reversed and the matter is remitted for a new trial.
South Nassau Orthopedic Surgery v Auto One Ins. Co., 32 Misc 3d 129(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
Contrary to defendant's contention, the affidavit of Dr. Parker was sufficient to establish that the documents annexed to plaintiff's motion papers were admissible pursuant 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]), and defendant conceded receipt of the claims in question (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). As plaintiff also established that its claims had not been timely paid or denied, plaintiff made a prima facie showing of its entitlement to judgment as a matter of law (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; cf. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Defendant did not raise a triable issue of fact in opposition to plaintiff's motion or establish its entitlement to summary judgment on its cross motion. In her affidavit, defendant's litigation manager stated that she had begun working for defendant after the claim denial forms at issue had allegedly been mailed by defendant. As defendant did not establish actual mailing of the claim denial forms or defendant's standard office practice and procedure for the mailing of the claim denial forms during the pertinent time period, defendant failed to show that its claim denial forms were timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant therefore failed to establish that its proferred defense in opposition to plaintiff's motion and in support of its cross motion was not precluded. Accordingly, the judgment is affirmed.
DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
A first-party no-fault cause of action accrues 30 days after the insurer's receipt of the claim (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established receipt of the claim form in question on August 29, 2002, it correctly argues that plaintiff's cause of action accrued on September 28, 2002, and this action, which was commenced on October 20, 2008, is untimely.
Contrary to the holding of the Civil Court, defendant's denial of claim form, dated February 5, 2003, did not postpone the payment due date (see Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d at 70). Moreover, defendant was not required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiff did not submit any evidence that defendant timely and properly requested verification, and therefore failed to raise a triable issue of fact as to whether defendant's time to pay or deny the claim had been tolled. Finally, there is no merit to plaintiff's contention that defendant should be collaterally estopped from asserting a statute of limitations defense.
Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claims were not paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form. Accordingly, the order, insofar as appealed from, is affirmed.
Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage due to fraudulent procurement of the insurance policy. The Civil Court granted plaintiff's motion and implicitly denied defendant's cross motion. A judgment was subsequently entered, from which we deem defendant's appeal to be taken (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).
Plaintiff demonstrated that defendant had not paid plaintiff's claims. However, with respect to the claims seeking reimbursement in the amounts of $182.18, $892.72, $463.44, $202.80 and $270.40, plaintiff failed to show that the basis for defendant's denials of these claims was conclusory, vague or had no merit as a matter of law. As a result, plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on these claims, and it is not necessary for this court to consider defendant's opposition papers with respect thereto (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). While plaintiff asserted that it had not received NF-10 forms denying claims in the amounts of $230.09 and $2,423.50, the affidavit of defendant's claims examiner, which established the timely mailing of these two 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]), was sufficient to demonstrate that plaintiff was not entitled to summary judgment on these two claims (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, plaintiff's motion for summary judgment should have been denied.
However, the Civil Court properly declined to grant defendant's cross motion for summary judgment dismissing the complaint, since defendant did not submit sufficient evidence in admissible form to establish its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Plaintiff correctly argues, as it did in the Civil Court, that the transcript of plaintiff's assignor's testimony at her examination under oath was not competent evidence as the transcript was neither signed by the witness nor certified by the court reporter (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252 [1984]; cf. Zalot v Zieba, 81 AD3d 935 [2011]). Furthermore, defendant proffered various documents which were supported by an affidavit that was notarized in the State of Indiana, but, as plaintiff properly noted in opposition to the cross motion, the affidavit was not accompanied by a certificate of conformity in accordance with CPLR 2309 (c) and Real Property Law § 299-a (1) (see Citibank, [S.D.] N.A. v Suen, 11 Misc 3d 126[A], 2005 NY Slip Op 52262[U] [App Term, 2d & 11th Jud Dists 2005]).
Accordingly, the judgment is reversed, so much of the order as granted plaintiff's motion for summary judgment is vacated and plaintiff's motion for summary judgment is denied. We leave undisturbed the Civil Court's implicit denial of defendant's cross motion for summary judgment dismissing the complaint.
East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co., 32 Misc 3d 127(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover for acupuncture services rendered to its assignor. Plaintiff billed defendant at $90 per session. Defendant paid for some of the sessions, but at a reduced rate per session, and partially denied the claims for these sessions as to the unpaid portion, basing its determination of the appropriate amount of reimbursement upon the workers' compensation fee schedule for acupuncture services performed by chiropractors. Reimbursement for other sessions was entirely denied due to plaintiff's assignor's failure to attend scheduled independent medical examinations (IMEs). Defendant moved for summary judgment dismissing the complaint, contending that it was entitled to summary judgment with respect to those bills or portions of bills for which it had denied reimbursement based upon plaintiff's assignor's failure to attend scheduled IMEs and for which it had reduced reimbursement based upon the fee schedules. The Civil Court denied defendant's unopposed motion on the ground that the motion presented "issues of credibility which the court cannot resolve on a motion for summary judgment," and stated that the supporting exhibits themselves raised triable issues of fact. This appeal ensued.
A review of the record indicates that defendant's motion papers were sufficient to establish that the letters scheduling the IMEs and that the claim denial forms had been timely mailed in accordance with defendant'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 established that plaintiff's assignor had failed to attend scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since the appearance of plaintiff's assignor at the IMEs was a "condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant was entitled to summary judgment dismissing the complaint with regard to those claims which it had denied on that basis "retroactively to the date of loss" (id.), i.e., so much of the bill dated August 14, 2006 as sought to recover the sum of $180 (dates of service July 6, 2006 – July 10, 2006), $180 (dates of service July 18, 2006 – July 31, 2006), $360 (dates of service August 4, 2006 – August 31, 2006), $180 (dates of service September 5, 2006 – September 25, 2006), and $270 (dates of service October 12, 2006 – October 23, 2006).
With respect to the unpaid portions of the remaining bills which defendant claims were timely denied based upon the fee schedules, the letters from defendant to plaintiff which were annexed to defendant's motion papers and which advised plaintiff that the processing of its bills was being delayed pending an examination under oath were insufficient to toll the 30-day period within which defendant was required to pay or deny those bills (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; see also Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Accordingly, defendant was not entitled to summary judgment with respect to those bills, albeit for a reason other than that stated by the Civil Court.
W.H.O. Acupuncture, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 132(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
Subsequent to the entry of the judgment, plaintiff, upon discovering a mathematical error, plaintiff moved to reduce the sum awarded in the December 18, 2009 order to $169.24. By order entered April 28, 2010, the Civil Court (Carmen R. Velasquez, J.) granted that motion. Contrary to plaintiff's contention on appeal, the entry of the April 28, 2010 order did not affect the appeal from the judgment, which was entered pursuant to the December 18, 2009 order, and has not been amended. We note that the April 28, 2010 order modified the December 18, 2009 order only to the extent of changing the sum awarded. It did not affect the Civil Court's findings of liability as a matter of law, which are the subject of defendant's appeal.
We find that defendant's cross motion for summary judgment dismissing the complaint should have been granted, as it was proper for defendant to use the workers' compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for services rendered by a licensed acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).
We incidentally note that the judgment in this case was improperly prepared and entered by the clerk on his own initiative and that no notice of the entry of the judgment was provided to the parties. Pursuant to CCA 1401, a judgment shall be prepared by a party's attorney and should be prepared by the clerk only upon the request of an unrepresented party, except in the case of a summary proceeding to recover possession of real property.
Accordingly, the judgment is reversed, the order entered December 18, 2009 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.
Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant's failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff's motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.
In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff's motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action to recover assigned first-party no-fault benefits, defendant failed to timely appear in the action. After more than a year had elapsed, defendant served an answer together with discovery demands on plaintiff and filed the answer with the court. About a week later, defendant served and filed an amended answer. At the same time, defendant moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned. The Civil Court denied defendant's motion, holding that, by serving its answer, defendant had appeared in the action and had waived its entitlement to such relief.
CPLR 3215 (c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." CPLR 3215 (c) applies where a defendant has not served an answer or taken any other steps which may be viewed as a formal or informal appearance (see Myers v Slutsky, 139 AD2d 709 [1988]). However, a defendant's submission of an answer and service of discovery demands act as a waiver of any right the defendant may have to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d at 710). In view of the foregoing, the Civil Court properly denied defendant's motion to dismiss the complaint as abandoned pursuant to CPLR 3215 (c).
There was a Golia dissent.
Ap Orthopedic & Rehabilitation, P.C. v MVAIC, 32 Misc 3d 133(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
The record establishes that plaintiff's assignor never provided MVAIC with proof that she was a resident of the State of New York when the accident occurred. As a result, plaintiff's assignor is not a "qualified person" (Insurance Law § 5202 [b]; see RAZ Acupuncture, P.C. v MVAIC, 25 Misc 3d 138[A], 2009 NY Slip Op 52362[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) and, thus, not a "covered person" (Insurance Law § 5221 [b] [2]; see 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]). Consequently, a condition precedent to the right to apply for payment of no-fault benefits from MVAIC was not satisfied (see Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U]). In any event, since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had allegedly struck plaintiff's assignor, 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]). Accordingly, MVAIC is entitled to summary judgment dismissing the complaint. In view of the foregoing, the fact that MVAIC may be precluded from presenting evidence at trial due to its failure to comply with a so-ordered discovery stipulation is of no consequence.
Gateway Med., P.C. v Progressive Ins. Co., 32 Misc 3d 137(A)(App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In June 2005, plaintiff commenced this action to recover assigned first-party no-fault benefits by mailing a copy of the summons and complaint to defendant pursuant to CPLR 312-a. However, defendant never mailed or delivered a signed acknowledgment of receipt to plaintiff (see CPLR 312-a). Thereafter, defendant served an answer in which it asserted the affirmative defense of lack of jurisdiction. In 2008, plaintiff purchased an index number, filed the summons and complaint with the Civil Court, and filed a notice of trial, but failed to serve defendant with a copy of the summons and complaint. Defendant subsequently moved to strike the notice of trial and dismiss the complaint. By order entered November 19, 2009, the Civil Court granted the branch of defendant's motion seeking to strike the notice of trial and denied the branch of defendant's motion seeking dismissal of the complaint. This appeal by defendant ensued.
As it is uncontroverted that service of process was not effectuated in June 2005 pursuant to CPLR 312-a, the Civil Court did not acquire personal jurisdiction over defendant at that time (see e.g. Klein v Educational Loan Servicing, LLC, 71 AD3d 957, 958 [2010]). Plaintiff purchased an index number and filed its summons and complaint in 2008 (see CCA 400, eff Sept. 8, 2005), but failed to serve a copy of the summons and complaint upon defendant within 120 days after filing as required by CCA 411. Consequently, jurisdiction over defendant was never acquired (CCA 400 [2]). Accordingly, the branch of defendant's motion seeking to dismiss the complaint should have been granted without prejudice (see CCA 411).
Neomy Med., P.C. v GEICO Ins. Co., 32 Misc 3d 137(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
Defendant established that it had timely mailed the denial of claim form (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]), which denied the claim at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Contrary to the determination of the Civil Court, there was no need for defendant to annex the medical records examined by the peer review doctor (cf. Matter of State of New York v Wilkes, 77 AD3d 1451 [2010]). Furthermore, since the purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff's assignor was injured as documented in his medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (see id.; 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]). Consequently, defendant established its prima facie entitlement to summary judgment (see 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]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant's showing that the services rendered to plaintiff's assignor were not medically necessary was unrebutted by plaintiff. Accordingly, defendant's cross motion for summary judgment dismissing the complaint should have been granted.
Weston, J.P., and Pesce, J., concur.
Rios, J., concurs in a separate memorandum.
Rios, J., concurs in the following memorandum:
Contrary to the finding of the majority, in my opinion, the affidavit of defendant's representative failed to describe on personal knowledge the mailing procedure employed at GEICO by the mailroom employees.
The affidavit alleges in conclusory terms that the envelopes containing the denials are placed in a mail bin for collection by mailroom employees and that they are:
"routinely collected by GEICO's mail department personnel at least twice daily and delivered to the GEICO mailroom, located within the building at the Woodbury location. These envelopes are postmarked with that day's date by a GEICO mailroom employee. Proper postage due is also affixed by GEICO's mail personnel through a United States Post Office authorized postage machine. On that same day, a GEICO mailroom employee brings these postmarked, postage paid envelopes to the United States Post Office, Woodbury location, at 217 Woodbury Road, Woodbury, New York, 11797. This GEICO employee then personally relinquishes these envelopes to a United States Postal Service employee."
In my view, the affidavit fails to establish a procedure sufficient to demonstrate that the mailing is forwarded to the claimant, especially where no certificate of bulk mailing from the postal service is offered (see Residential Holding Corp. v Scottsdale Ins. Co.,286 AD2d 679 [2001]; Hospital For Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]).
Notwithstanding the apparent flaw in defendant's proof, the majority points to the holding in St. Vincent's Hosp. of Richmond v Government Employees Ins. Co. (50 AD3d 1123 [2008]), which held that a similar affidavit established a general office procedure sufficient to ensure that documents were properly addressed and mailed. In St. Vincent's, the appellate court credited a statement by the insurer's representative that
"the contents of this mail pick-up bin are collected by GEICO's mail department personnel . . . Within 48 hours of its arrival in the GEICO mail room, the mail is delivered to the local United States Postal Service location and mailed."
Accordingly, I am constrained to concur with my colleagues in their determination.
Farragut Corner Medical, P.C. v MVAIC, 32 Misc 3d 137(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
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]; 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]). Accordingly, the judgment is affirmed.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 32 Misc 3d 136(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant's motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.
Next, plaintiff correctly argues that defendant could not rely on defendant's denial of claim forms "for the purposes of asserting the information contained within them," such as "the dates of services, the services performed, the fees charged per service provided, etc." However, defendant was not relying on them for that purpose. It is plaintiff's burden, not defendant's, to prove the elements of plaintiff's cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (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]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility (see Five Boro Psychological Servs., P.C., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]; Quality Health Prods., Inc., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U]).
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant's motion to strike the action from the trial calendar was untimely, under all of the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff's contention, it cannot be said that the Civil Court's determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]).
Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff's financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).
The record indicates that plaintiff objected to producing items 19 through 21 of defendant's notice to produce, which sought plaintiff's bank statements and canceled checks (item 19), plaintiff's federal and state tax returns including attachments and schedules (item 20), and plaintiff's payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff's objection to the foregoing demands lacked merit. Defendant has shown that plaintiff's bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff's income tax returns and payroll tax filings (see CPLR 3101 [a]; Ava Acupuncture, P.C. v Autoone Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff's responses to the remainder of defendant's interrogatories and defendant's notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.
In light of the foregoing and the misstatements of material facts contained within plaintiff's certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant's motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.
Baldwin Acupuncture, P.C. v Allstate Ins. Co., 32 Misc 3d 137(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement following the entry of a default judgment against defendant. After defendant paid plaintiff the amount called for in the stipulation of settlement, defendant moved to compel plaintiff to execute and file a satisfaction of judgment pursuant to CPLR 5020 or, in the alternative, for the court to direct the clerk to make an entry that the judgment had been satisfied pursuant to CPLR 5021. Plaintiff opposed the motion and cross-moved to vacate the stipulation of settlement, alleging that it had been entered into by mistake or through fraudulent inducement. The Civil Court granted defendant's motion to the extent of vacating the default judgment and deeming the action settled. The court also denied plaintiff's cross motion, holding that the stipulation had been signed by the principal owner of plaintiff's firm and that the checks which defendant had issued in payment of the amount called for in the settlement had been cashed by plaintiff's firm. Plaintiff appeals, contending that the stipulation of settlement should have been vacated and, in any event, that there was no basis for the Civil Court to have vacated the default judgment, as this relief was never requested by defendant.
Stipulations of settlement are favored by the courts and not lightly cast aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Galasso, 35 NY2d 319, 321 [1974]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d 875 [2008]). Pursuant to CPLR 2104, when a stipulation is reduced to a writing and signed by a party or its attorney, it is binding upon that party. Furthermore, strict enforcement of a stipulation of settlement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and the integrity of the litigation process (see Hallock v State of New York, 64 NY2d at 230; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876). Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v State of New York, 64 NY2d at 230; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876; Nigro v Nigro, 44 AD3d 831 [2007]; Davidson v Metropolitan Tr. Auth., 44 AD3d 819 [2007]).
Contrary to plaintiff's contentions, plaintiff did not establish that the stipulation of settlement had been entered into through mutual mistake, nor has there been a sufficient showing that there existed a unilateral mistake on the part of plaintiff of a nature that would warrant the vacatur of the stipulation (see Matter of Marquez, 299 AD2d 551 [2002]). Moreover, we do not find that there has been a sufficient showing to demonstrate that defendant fraudulently induced plaintiff to enter into the stipulation of settlement (see Matter of Kaplan, 141 AD2d 545 [1988]). We, however, agree with plaintiff that neither the stipulation nor defendant's motion called for the vacatur of the default judgment. Accordingly, the order is modified by striking the provision thereof vacating the default judgment and by providing that defendant's motion for an order directing entry of a satisfaction of the judgment pursuant to CPLR 5021 is granted.
MSSA Corp. v Redland Ins. Co., 2011 NY Slip Op 51606(U)(App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
The affidavit submitted by defendant in support of its motion for summary judgment was sufficient to establish that defendant's denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, had been timely mailed in accordance with defendant'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, among other things, an affirmed peer review report, as well as an affirmation executed by the physician who had performed the peer review, which set forth a factual basis and medical rationale for the conclusion that there was no medical necessity for the medical supplies at issue. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), defendant's motion for summary judgment should have been granted (see 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]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Golia and Rios, JJ., concur.
Steinhardt, J.P., dissents in a separate memorandum.
Steinhardt, J.P., dissents and votes to affirm the order in the following memorandum:
It is undisputed that plaintiff did not submit medical opposition to defendant's motion for summary judgment, which was based on lack of medical necessity. However, I am of the opinion that the documentation submitted by defendant in support of its motion is insufficient to shift the burden to plaintiff.
"Lack of medical necessity is a defense to an action to recover no-fault benefits, which an insurer may assert pursuant to a timely claim denial, based on . . . a sufficiently detailed peer review report" (Amaze Med. Supply v Eagle Ins., 2 Misc 3d 139[A], 2004 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists 2004]). To support a motion for summary judgment, a peer review report must set forth a factual basis and medical rationale sufficient to establish, prima facie, the lack of medical necessity (see Urban Radiology, P.C. v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52157[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).
In the instant matter, the peer review report of Dr. Ross did not "shed any light" on the assignor's condition, nor did it state, in any sufficiently detailed manner, the reason the medical equipment at issue was not needed. The reader of the report is at a total loss to determine what actually happened to the assignor and what parts of her anatomy are amiss and in what way. "Bilateral shoulder and left elbow" injuries may range from a complicated fracture to a minor contusion. Without more, the report is conclusory and vague, and insufficient to shift the burden to plaintiff. I therefore vote to affirm the order denying defendant's motion for summary judgment.
Jesa Med. Supply, Inc. v Progressive Ins. Co., 2011 NY Slip Op 51603(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action, insofar as it pertained to plaintiff's claims seeking to recover the sums of $1,205.50 and $1,675, was premature because it was commenced before defendant had received responses to its outstanding verification requests, and on the ground of lack of medical necessity as to plaintiff's claim for $502.63. The Civil Court granted the branches of plaintiff's motion seeking summary judgment on the $1,205.50 and $1,675 claims, and denied defendant's cross motion for summary judgment, finding that a triable issue of fact exists as to the medical necessity of plaintiff's $502.63 claim. This appeal by defendant ensued.
The affidavit of defendant's litigation representative established that defendant had timely mailed its request and follow-up request for verification in accordance with its standard office practices and procedures to plaintiff and to the doctor who had prescribed the medical supplies 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]). 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 the $1,205.50 and $1,675 claims did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]), and, thus, plaintiff's action with respect to the $1,205.50 and $1,675 claims is premature.
With respect to the branch of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover the sum of $502.63, defendant demonstrated that it had timely denied the $502.63 claim on the ground of lack of medical necessity based upon an affirmed independent medical examination (IME) report (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d at 17-18). The IME report set forth a factual basis and medical rationale for the doctor's opinion that there was a lack of medical necessity for the supplies at issue (see 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]). As plaintiff failed to submit any medical evidence to rebut defendant's showing of lack of medical necessity, the branch of defendant's cross motion seeking summary judgment dismissing the $502.63 claim should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Nat. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; 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]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
App. Term 1st
Devonshire Surgical Facility v American Transit Insurance Company, 2011 NY Slip Op 51660(U) (App. Term, 1st Dept. 2011)
We agree with Civil Court that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law on their claims for first-party no-fault benefits by submitting proof that the prescribed statutory billing forms had been mailed and received by defendant on January 22, 2001, and that payment was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]). In opposition, defendant failed to raise a triable issue. Thus, plaintiffs were properly granted summary judgment (see Devonshire Surgical Facility v American Tr. Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50512[U] [2011]), and are entitled to statutory interest from the date the claim became overdue, viz. "30 days after the claim[s] w[ere] presented to the defendant for payment" (Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]; see Insurance Department Regulations [11 NYCRR] § 65.15[h][1] [now 65-3.9(a)]). We remand the matter to Civil Court for calculation of the appropriate interest due plaintiff on these claims, taking into account the applicability, if any, of the tolling provisions of Insurance Law § 5106(a) (see 11 NYCRR 65.15[h][3] [now 65-3.9(c)]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [2007]).
Triangle R Inc. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51663(U) (App. Term, 1st Dept. 2011)
In this action by plaintiff to recover assigned first-party no-fault benefits, defendant's submissions sufficed to establish prima facie that the medical supplies provided by plaintiff to its assignor were not medically necessary (see Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52267[U] [2010]; Innovative Chiropractic, P.C. v Travelers Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52447[U] [2009]). In opposition, plaintiff failed to raise a triable issue of fact. The undated medical report relied upon by plaintiff was not properly sworn (see CPLR 2106, 2109), and should not have been considered (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Moreover, even if considered, the report was insufficient to defeat summary judgment (id.).
Pomona Med. Diagnostic, P.C. v MVAIC, 32 Misc 3d 140(A) (App. Term, 1st Dept. 2011)
In this action to recover assigned first-party no-fault benefits, defendant MVAIC failed to establish its entitlement to summary judgment dismissing the complaint (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]). As has been repeatedly held, "the burden is on MVAIC to prove its lack-of-coverage defense" in support of its motion for
summary judgment (Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d at 667; see Socrates Med. Health, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51780[U] [2010]; Socrates Med. Health, P.C. v MVAIC, 28 Misc 3d 141[A], 2010 NY Slip Op 51606[U] [2010]).
Here, MVAIC's submissions are insufficient to establish, prima facie, its defense that plaintiff's assignor was not a "qualified person" or lacked MVAIC no-fault coverage (see Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d at 229; Omega Diagnostic Imaging, P.C. v MVAIC, 30 Misc 3d 145[A], 2011 NY Slip Op 50432[U] [2011]; Omega Diagnostic Imaging, P.C. v MVAIC., 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Accordingly, MVAIC's motion for summary judgment of dismissal was properly denied.
Bronx Expert Radiology, P.C. v NYC Tr. Auth., 32 Misc 3d 140(A) (App. Term, 1st Dept. 2011)
In this action to recover first-party no-fault benefits, Civil Court erred in granting plaintiff's motion for summary judgment on the complaint, since plaintiff failed to establish as a matter of law a "reasonable justification" for its untimely submission of the proof of claims to defendant (see 11 NYCRR 65-1.1; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [2007]). Accordingly, plaintiff's motion should have been denied.
Defendant's cross motion for summary judgment dismissing the complaint was properly denied as defendant failed to establish that it gave "due consideration" to the explanation offered by plaintiff for the late submission of its no-fault claims as required by the insurance regulations (see 11 NYCRR 65-3.5[l]; Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854, 863 [2003]; Bronx Expert Radiology v Clarendon Natl. Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50747[U] [2009]).
Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51597(U) (App. Term, 1st Dept. 2011)
In this action to recover assigned first-party no-fault benefits, defendant's documentary submissions established prima facie that it mailed the notices of the independent medical examinations (IME) to the assignor and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 27 Misc 3d 139[A], 2010 NY Slip Op 50911[U] [2010]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignor's failure to attend the IMEs (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).
Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51634(U) (App. Term, 1st Dept. 2011)
An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of the information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569, 570 [2005]). In support of its motion for summary judgment, defendant established that its initial and follow-up verification letters were timely mailed and received by plaintiff (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]; Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]). It being undisputed on the record that plaintiff failed to respond to defendant's verification requests, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).
In opposition, plaintiff's conclusory denial of receipt of the initial verification letter was insufficient to raise a triable issue (see Nassau Ins. Co. v Murray, 46 NY2d at 829-830; Pardo v Central Coop. Ins. Co., 223 AD2d 832, 833 [1996]; Abuhamra v New York Mut. Underwriters, 170 AD2d 1003, 1004 [1991]).
Omega Diagnostic Imaging, P.C. v MVAIC, 32 Misc 3d 128(A) (App. Term, 1st Dept. 2011)
Following a motor vehicle accident in 2004, plaintiff provided medical services to its assignor. On November 30, 2004, plaintiff submitted its bills to defendant for payment of assigned first-party no-fault benefits. Within days of receipt, on December 8, 2004, defendant sent plaintiff a timely verification request regarding the medical bills, but did not satisfy the follow-up verification provisions of 11 NYCRR 65-3.6(b). More than one year later, on January 18, 2006, plaintiff responded to the verification request and, on February 1, 2006, defendant issued a denial of plaintiff's claim.
In April 2008, plaintiff commenced the instant action against defendant to recover the unpaid first-party no-fault benefits. Defendant moved for summary judgment dismissing the complaint on the ground that the action was time-barred under the applicable three-year statute of limitations, arguing that the accrual date of plaintiff's claim, i.e. the date payment became "overdue," was 30 days after defendant's initial receipt of plaintiff's claim in 2004. In effect, defendant posited that its timely verification request was invalid, and hence, ineffective to extend the accrual date of the claim due to its own failure to comply with the follow-up provision.
Civil Court properly denied defendant's motion for summary judgment dismissing plaintiff's claim as time-barred (see CPLR 214[2]; Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996]). Defendant's timely verification request "tolled the defendant's time within which to pay or deny the claim," until its receipt of all the requested information (New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]; see 11 NYCRR 65-3.8[a][1]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]). Indeed, an insurer "shall" not issue a denial of claim "prior to its receipt of verification of all the relevant information requested pursuant to" its verification forms (11 NYCRR 65-3.8[b][3]; see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d at 904; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]).
We therefore find, on this record, that plaintiff's claim accrued for statute of limitations purposes on the date that defendant issued its denial, following its receipt of plaintiff's response to the verification requested. Defendant may not be permitted to rely on its own failure to comply with the follow-up provisions of the no-fault regulations (see 11 NYCRR 65-3.6[b]), to invoke the statute of limitations as a defense.
To the extent that Acupuncture Works, P.C. v MVAIC (27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term 2d 2010]) may be read as contrary to this conclusion, we decline to follow it under the extant circumstances.
Lower Court
Westchester Med. Ctr. v Hereford Ins. Co.
East 75th St. Diagnostic Imaging v Clarendon Natl. Ins. Co.
Altercare Acupuncture, P.C. v Utica Mut. Ins. Co.
New York Hosp. Ctr. of Queens v QBE Ins. Corp.
Mount Sinai Hosp. v State Farm Mut. Auto. Ins. Co.
thecplrblog 