No-fault since May

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.

 

Industry custom and practice

Cassidy v Highrise Hoisting & Scaffolding, Inc., 2011 NY Slip Op 07936 (1st Dept., 2011)

The affidavit of plaintiffs' site safety expert failed to create questions of fact warranting denial of summary judgment. An expert's opinion should be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice (Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 2 [2005]). "Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place" (Hotaling v City of New York, 55 AD3d 396, 398 [2008], affd 12 NY3d 862 [2009]).

Where was I?

the no-fault

App. Term, 2nd Dept.

Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 32 Misc 3d 143(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011) 

In support of its cross motion, defendant submitted an affidavit of an employee of Allegiance which sufficiently established that the IME requests had been timely mailed in accordance with Allegiance'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 of the chiropractor/acupuncturist who was to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's litigation examiner demonstrated that the claim denial forms, which denied the claims based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claims based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]). Accordingly, defendant's cross motion for summary judgment dismissing the complaint should have been granted. In light of our determination, we need not reach the remaining contentions raised on appeal.

PSW Chiropractic Care, P.C. v Maryland Cas. Co., 2011 NY Slip Op 51719(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

At the nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the sole issue was the medical necessity of chiropractic treatment rendered to plaintiff's assignor. Defendant's expert medical witness, who had performed two independent medical examinations of plaintiff's assignor on defendant's behalf, testified that the chiropractic treatment at issue was not medically necessary. In a decision after trial, the Civil Court found in favor of plaintiff in the principal sum of $4,246.20. Defendant appeals from the decision. A judgment was subsequently entered, from which the appeal is deemed to have been taken (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 a 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 defendant's witness and the proof
adduced at trial, that defendant failed to satisfy its burden of proving that the disputed chiropractic services were not medically necessary. As we find no basis to disturb the Civil Court's findings, the judgment is affirmed.

Steinhardt, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum. 

Golia, J., dissents and votes to reverse the judgment and direct the entry of judgment in favor of defendant dismissing the complaint, in the following memorandum:

In my opinion, the Civil Court's finding that defendant failed to demonstrate that the disputed services were not medically necessary was erroneous. The mandatory personal injury protection endorsement, as set forth in the no-fault regulations, requires insurers to reimburse an eligible injured person, or his or her assignee, for necessary expenses for medical services rendered "on account of personal injures caused by an accident arising out of the use or operation of a motor vehicle" (Insurance Department Regulations [11 NYCRR] § 65-1.1). In a trial of the present case, plaintiff's prima facie case consisted entirely of stipulated facts. No witness was called to the stand. The disputed medical services for which plaintiff now seeks recovery at this trial are for treatments that were provided after June 18, 2003.

Defendant, upon presentation of its case, produced the testimony of its doctor, who had performed two independent medical examinations of plaintiff's assignor. The doctor testified that the assignor's physical condition had returned to its pre-accident status. The doctor further testified that, as of the date of his second examination, June 18, 2003, there was no need for any further chiropractic treatment.

Inasmuch as there is no testimony contradicting defendant's doctor's testimony elicited by plaintiff at trial, credibility is not at issue. Consequently, the trial court's conclusion cannot be reached under any fair interpretation of the evidence before it. I question the majority's reliance on giving deference to the determination of the trier of fact as to a witness's credibility, when plaintiff's case was entered without the benefit of actual testimony of any witnesses. As such, I give credit to defendant's doctor's testimony and find that the condition being treated did not arise out of an insured incident and was not exacerbated by an insured incident.

Consequently, defendant should not be held liable for plaintiff's chiropractic treatment of the assignor herein (see Central General Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, I would reverse the judgment appealed from and direct that judgment be entered in favor of defendant dismissing the complaint.

EBM Med. Health Care, P.C. v Amica Mut. Ins. Co., 2011 NY Slip Op 51720(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D
Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). The time within which an action must be commenced is computed "from the time the cause of action accrued to the time the claim is interposed" (CPLR 203 [a]). In this case, the claim was interposed when the summons and complaint were filed on June 27, 2007 (CCA 400). As the six-year statute of limitations for contract actions applies to the claims involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), the statute of limitations bars any claim that accrued prior to June 27, 2001.

In the no-fault context, a cause of action accrues when payment of no-fault benefits becomes "overdue" (see Insurance Law § 5106 [a]; see also Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; New Era Acupuncture, P.C. v MVAIC, 18 Misc 3d 139[A], 2008 NY Slip Op 50353[U] [App Term, 2d & 11th Jud Dists 2008]). In this case, benefits became overdue 30 days after defendant's receipt of proof of the claim (see Insurance Law § 5106 [a]; former Insurance Department Regulations [11 NYCRR] § 65.15 [g], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). The complaint alleges that a claim form in the amount of $1,707.97 was submitted to defendant on June 6, 2001. In considering a motion to dismiss a complaint as barred by the statute of limitations, the court must take the factual allegations of the complaint as true, and must resolve all inferences in favor of the plaintiff (see Island ADC, Inc., 49 AD3d 815). We note that defendant's dismissal motion was based upon an allegation that defendant had received a bill for $1,467.95 on April 3, 2001, and that this bill, along with a bill for $240.02, are the bills which are the subject of this action. However, defendant failed to demonstrate that these two bills, one of which it claims to have received on April 3, 2001, are the subject of this action, where the complaint alleges that one bill for $1,707.97 was submitted on June 6, 2001.

As the earliest date defendant could have received the $1,707.97 bill was June 6, 2001 and the earliest date that benefits could have become overdue with respect to this bill was July 7, 2001, we find that defendant failed to meet its burden of establishing, prima facie, that the time in which to sue has expired.

LVOV Acupuncture, P.C. v Geico Ins. Co., 2011 NY Slip Op 51721(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

We find that the workers' compensation fee schedule, which is required by law (see Workers' Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is "of sufficient authenticity and reliability that it may be given judicial notice" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services billed under codes 97810 and 97811 in accordance with the Official New York Workers' Compensation Chiropractic Fee Schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff did not object to the fee schedule amount set forth by the defense, nor contest the timely denial of the claims, so much of defendant's motion as sought summary judgment dismissing the complaint as to these claims is granted. 

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff's claim of $160.56 for the initial acupuncture visit on September 2, 2005, billed under fee schedule treatment code 99204 (cf. 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]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff's motion seeking summary judgment as to this claim, and which denied defendant's cross motion insofar as it sought summary judgment dismissing the complaint as to this claim.

In light of the foregoing, the order is modified by providing that plaintiff's motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on September 2, 2005 and is otherwise denied, and by further providing that defendant's cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Radiology Today, P.C. v Progressive Ins. Co., 2011 NY Slip Op 51724(U)(App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The nonjury trial of this action by a provider to recover assigned first-party no-fault benefits was limited, pursuant to CPLR 3212 (g), to the issue of the medical necessity of the billed-for services. Before defendant called any witnesses, the Civil Court precluded the admission of defendant's peer review report into evidence, precluded the testimony of defendant's expert witness and granted plaintiff's motion for a directed verdict. Defendant appeals from the judgment that was subsequently entered.

Defendant's expert medical witness, who was not the expert who had prepared the peer review report upon which defendant's denial of the subject claim was based, should have been permitted to testify (see 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]). Under the circumstances presented, we do not reach the question of whether the peer review report could have been entered into evidence.

D & R Med. Supply v American Tr. Ins. Co., 2011 NY Slip Op 51727(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is undisputed that defendant timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]; 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]). The record establishes that plaintiff's responses to defendant's verification requests failed to provide the information which defendant had requested, in that plaintiff merely stated that the supplies at issue had been provided pursuant to a doctor's prescription and did not advise defendant of the name of the doctor who had issued the prescription or where the doctor was located so that defendant could try to obtain the requested information from the prescribing doctor (see 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's cross motion for summary judgment dismissing the complaint as premature should have been granted, as defendant's time to pay or deny the claim had not begun to run (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. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). In light of the foregoing, we reach no other issue.

Pesce, P.J., and Weston, J., concur.

Steinhardt, J., dissents in a separate memorandum. 

Steinhardt, J., dissents and votes to affirm the order in the following memorandum:

Although I am in agreement with my learned colleagues regarding the timeliness of the mailings of defendant's request and follow-up request for verification, I disagree with the outcome arrived at by the majority. The information sought by defendant from plaintiff, i.e., 1) an initial report from the referring physician and 2) a letter of medical necessity from the referring physician, were never within plaintiff supply company's possession. In clear and concise language, it so advised defendant. Defendant neither revised its verification request nor paid the claim. Based on the outlined scenario, in the majority's view, the time for defendant to pay or deny the claim would never begin to run and the claim would be premature forever. In my opinion, plaintiff responded to defendant's request and follow-up request in a timely manner and defendant neither paid nor denied the claim that forms the subject matter of plaintiff's complaint within 30 days. Consequently, plaintiff is entitled to summary judgment in its favor.

Turnpike Med., P.C. v MVAIC, 2011 NY Slip Op 51717(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

On appeal, defendant contends that plaintiff was not entitled to summary judgment because plaintiff's assignor was not a qualified person since he failed to provide defendant with written proof of lack of insurance. This argument lacks merit because plaintiff's assignor's status as a qualified person is not dependent upon defendant's receipt of these documents (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]). As plaintiff established its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]), and as defendant's remaining contentions are raised for the first time on appeal and are not properly before this court (see Terranova v Waheed Brokerage, Inc., 78 AD3d 1040 [2010]; Pierre v Lieber, 37 AD3d 572, 573 [2007]; Gouldborne v Approved Ambulance & Oxygen Serv., 2 AD3d 113, 114 [2003]; Ta-Chotani v Doubleclick, Inc., 276 AD2d 313 [2000]; Gordon v Hong, 126 AD2d 514 [1987]), the judgment is affirmed.

Weston, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only in the following memorandum:

I am constrained to agree with the majority with regard to the issue of what constitutes a plaintiff's prima facie case in a no-fault action brought against the Motor Vehicle Accident Indemnification Corporation (MVAIC) in view of the Appellate Division's ruling in New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]; see also Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010] ["the burden is on MVAIC to prove its lack-of-coverage defense"]).

I nevertheless disagree with the characterization of plaintiff as a "qualified" injured party.

Although defendant MVAIC does assert that it is entitled to receive proof of a "lack of insurance," its opposition to the underlying motion in the Civil Court was predicated upon plaintiff's failure to establish its prima facie case. In order to establish its case, plaintiff must, in my opinion, first establish, as a condition precedent, that it was entitled to collect no-fault benefits from MVAIC. That is, that there is no "private" insurance available. That was not done here.

The Insurance Law, coupled with the Insurance Department No-Fault Regulations, creates a somewhat complex statutory and definitional scheme. Nevertheless, its purpose was to achieve a logical and fair result. That purpose, in cases involving MVAIC, is to provide that an individual who is injured in an automobile accident and who did not violate the mandatory-insurance law will receive no-fault benefits. Providing, that is, that there is no "private" insurance company responsible for covering the loss. This is the last line of protection for individuals who are injured by someone who has violated the financial responsibility requirements of the Insurance Law. The Law also covers those injured in a "hit and run" accident. In the normal course of events, benefits are paid by a "private" insurance carrier which bears responsibility to the "covered" individual. However, if, and only if, there is no responsible "private" insurance carrier, then the "injured" individual is eligible to receive no-fault benefits from MVAIC.

MVAIC was created for the sole purpose of providing insurance coverage where there otherwise would be none. Consequently, unlike any other "private" carrier, if a claimant is seeking payment from MVAIC, that claimant must establish that it is eligible to receive payments from MVAIC in the first instance. Again, the claimant must establish prima facie, as a condition precedent, that there is no "private" insurance carrier responsible for his injuries. This fact is an immutable truth. MVAIC should not be required to raise the issue, as would be the case where the defendant is a "private" carrier. Therefore, this plaintiff should be required to plead and then prove the unavailability of any "private" insurance according to the Insurance Law. That is the requirement of any condition precedent and that requirement is supported by well- settled authority (see Katz v City of New York, 87 NY2d 241 [1995]).

In the case at bar, plaintiff did not even attempt to prove this condition precedent despite the fact that plaintiff, in its original complaint, did plead, "That at the time of the accident there was no existing insurance policy containing benefits as defined by 11 NYCRR 65.15 (K) (IV) under the New York State No Fault Law." Plaintiff here knew what was legally required of it and did plead this fact, but failed to prove it.

Accordingly, were it not for the constraint of the appellate authority to the contrary, I would hold that plaintiff failed to establish its prima facie case and would deny its motion.

Radiology Imaging of Queens v Progressive Ins., 2011 NY Slip Op 51860(U)

In support of its motion for summary judgment, defendant established that a denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was timely mailed in accordance with its standard office practices andprocedures (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, which set forth a factual basis and medical rationale for the doctor's opinion that there was a lack of medical necessity for the rendered service. 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]). Accordingly, defendant's unopposed motion for summary judgment dismissing the complaint should have been granted.

Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 51862(U)

In support of its motion, defendant submitted an affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which sufficiently established that the IME notices had been timely mailed in accordance with that service's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Inc. 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 affirmations by the medical professionals who were retained to perform the IMEs, which affirmations were sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit by defendant's examiner demonstrated the timely mailing of the claim denial forms, based on the assignor's nonappearance at the IMEs, pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claims based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 2011 NY Slip Op 51863(U) (App. Term, 9th & 10th 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 failed to pay or deny the claim within the requisite 30-day period, or that the defendant 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]). In order for a claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a plaintiff in support of its motion for summary judgment must lay a sufficient foundation to establish that the claim form annexed thereto is admissible under the business records exception to the hearsay rule, which allows a document to be used as proof of the "act, transaction, occurrence or event" recorded in the document (CPLR 4518 [a]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; King's Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55 [App Term, 9th & 10th Jud Dists 2004]).

In the case at bar, plaintiff's submission of a third-party affidavit failed to demonstrate that the NF-5 hospital facility form or the UB04, which was incorporated by reference into the NF-5 and which listed the services provided by the hospital, was plaintiff's business record and therefore admissible as proof that, for example, those services were rendered (see Matter of Carothers, 79 AD3d 864; King's Med. Supply, Inc., 5 Misc 3d 55). Accordingly, the order is affirmed.

MSSA Corp. v American Tr. Ins. Co., 2011 NY Slip Op 51864(U)

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. The Civil Court found, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff's claim and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff's assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that the supplies were not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court's CPLR 3212 (g) finding that defendant "established the issue of timely denials," a finding which plaintiff does not dispute, defendant's cross motion for summary judgment dismissing the complaint 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]).

AIM Acupuncture, P.C. v Encompass Ins., 2011 NY Slip Op 51874(U)

For the reasons stated in AIM Acupuncture, P.C. as Assignee of Alexander Kerron v Encompass Ins. (___ Misc 3d ___, 2011 NY Slip Op _____ [Appeal No. 2009-1018 Q C], decided herewith), the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.

Steinhardt, J., dissents in a separate memorandum.

Steinhardt, J., dissents and votes to reverse the judgment, vacate the order entered March 25, 2009 and deny plaintiff's motion for summary judgment in the following memorandum:

For the reasons stated in my dissent in AIM Acupuncture, P.C. as Assignee of Alexander Kerron v Encompass Ins. (___ Misc 3d ___, 2011 NY Slip Op _____ [Appeal No. 2009-1018 Q C], decided herewith), I vote to reverse the judgment, vacate the order entered March 25, 2009 and deny plaintiff's motion for summary judgment.

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 51875(U)

CPLR 3101 (a) directs "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Pursuant to CPLR 3124, the court may grant an order compelling discovery and "a trial court is given broad discretion to oversee the discovery process" (Maiorino v City of New York, 39 AD3d 601, 601 [2007], quoting Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [1999]; see also Gillen v Utica First Ins. Co., 41 AD3d 647 [2007]). Absent an improvident exercise of that discretion, the court's determination will not be disturbed on appeal (see Matter of US Pioneer Elecs. Corp. [Nikko Elec. Corp. of Amer.], 47 NY2d 914, 916 [1979]; Gillen v Utica First Ins. Co., 41 AD3d 647). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion. Accordingly, the order, insofar as appealed from, is affirmed.

Mosad Med., P.C. v Praetorian Ins. Co, 2011 NY Slip Op 51876(U)

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical services at issue. The affirmation from plaintiff's doctor failed to meaningfully refer to, let alone rebut, 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]).

In light of the foregoing, and the Civil Court's implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claim, a finding which plaintiff does not dispute, defendant's cross motion for summary judgment dismissing the complaint 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]).

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 51877(U)

After the trial of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for a directed verdict and dismissed the complaint. The court found that plaintiff had not established that the claim at issue was overdue, as the testimony of plaintiff's witness was not based upon personal knowledge. We agree. Accordingly, the judgment is affirmed.

BLR Chiropractic, P.C. v MVAIC, 2011 NY Slip Op 51878(U)

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]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the judgment is reversed, the order is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Trimed Med. Supply, Inc. v American Tr. Ins. Co., 2011 NY Slip Op 51880(U)

As defendant served discovery responses less than one week later than required by a so-ordered discovery stipulation, we find, under the totality of the circumstances presented, that the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from offering evidence in this matter and in denying the branch of plaintiff's motion seeking summary judgment (see Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2007]).

With respect to defendant's cross motion for summary judgment dismissing the complaint, we find that defendant demonstrated that its claim denial forms were 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]). As to the claims for $341.34, $195.50 and $795, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing was not rebutted by plaintiff. Consequently, defendant's cross motion for summary judgment dismissing the complaint should have been granted as to these claims (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]).

The papers submitted in support of defendant's cross motion indicate that, while plaintiff's claim for $178 was not submitted within 45 days of the provision of the equipment at issue, plaintiff offered an explanation for the claim's untimeliness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), and there is an issue of fact as to the reasonableness of that explanation (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant's cross motion for summary judgment was properly denied as to this claim.

Jamaica Med. Supply, Inc. v NY Central Mut. Fire Ins. Co., 2011 NY Slip Op 21359

In Roggio, the Court of Appeals held 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 (see also Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). However, a prior arbitration proceeding involving a different claimant provider does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even though the claims may arise from the same accident (see A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]). "Pursuant to Insurance Law § 5106 (b), each claimant provider may independently exercise the right to elect to submit their respective claims to arbitration, and the election to arbitrate by one provider does not bar another provider from resorting to the court in the first instance for resolution of disputed no-fault benefits . . . Moreover, in the absence of privity between the providers, the determination in the prior arbitration proceeding cannot be accorded res judicata or collateral estoppel effect against plaintiffs in the instant action" (id. at 23). Since plaintiff was not involved in the prior arbitration proceeding, and since there was no showing of privity between plaintiff and the provider who was a party to that proceeding, plaintiff was not barred from commencing the instant action, and it was error for the Civil Court to dismiss the complaint without prejudice to plaintiff's pursuing the matter in arbitration.

With respect to defendant's alternative ground for dismissal, we find that defendant did not establish its prima facie entitlement to summary judgment based on its lack of coverage defense "premised on the fact or founded belief that the alleged injury does not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), as the proof offered in support of this branch of its motion seeking summary judgment was not in admissible form (see LMS Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50, 52 [App Term, 2d & 11th Jud Dists 2005]). Consequently, defendant's motion should have been denied in its entirety.

Accordingly, the order is reversed, defendant's motion to dismiss the complaint is denied, and the complaint is reinstated.

Pesce, P.J., and Rios, J., concur.

Steinhardt, J., dissents in a separate memorandum.

Steinhardt, J., dissents and votes to affirm the order in the following memorandum:

Although I am in full agreement with the majority that plaintiff is not limited as to the choice of forum (A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]), I would affirm the order because I believe plaintiff's case should be dismissed with prejudice. The dismissal by the arbitrator in the prior proceeding involving the assignor herein should be binding on this court. It was previously determined that Klever Guaman was not present in the motor vehicle at the time and place of the accident that allegedly caused his injuries. The police report submitted in support of defendant's motion clearly indicates that the only people present in the respective vehicles were the drivers. In other words, Guaman's claim of being in the passenger seat of the car being driven by Joffre Gonzalez is belied by the police officer's observation at the scene. Were the police officer to testify, that portion of the report would be admissible. The arrest report, wherein Guaman admits that he was not involved in the accident for which a provider sought to recover no-fault benefits, is, in this writer's opinion, an admission against interest and, therefore, admissible evidence that may be considered on a motion for summary judgment. I would dismiss plaintiff's complaint on the theory that the assignor is a person not entitled to recover.

Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 21361

Although plaintiff contends that defendant's neurologist was not competent to give an opinion on the medical necessity of the acupuncture services rendered, we note that the Insurance Department has stated in an opinion letter, to which we must accord great deference (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]; see also Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 30 Misc 3d 90 [App Term, 2d, 11th & 13th Jud Dists 2011]), that there is no requirement that a claim denial be based upon a medical examination conducted by a health provider of the same specialty area as the treating provider (see 2004 Ops Ins Dept No. 04-03-10). As there was a factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the acupuncture services provided to plaintiff's assignor (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]), the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]).

Upon a review of the record, we find that the affidavit of plaintiff's treating acupuncturist was sufficient to raise a triable issue of fact as to whether the acupuncture services rendered to plaintiff's assignor were medically necessary (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 Dists 2010]). Accordingly, the judgment dismissing plaintiff's complaint 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 for summary judgment is denied.

Peace of Mind, Social Work, P.C. v MVAIC, 2011 NY Slip Op 51834(U)

In its decision, the Civil Court stated that although plaintiff had submitted the claim form more than 45 days after the services had been rendered, MVAIC had failed to establish that its denial of plaintiff's claim advised plaintiff that the untimely submission of the claim form would be excused if plaintiff had a reasonable excuse for the untimely submission (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). As a result, the court awarded judgment to plaintiff.

"The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]' (see Insurance Law § 5208 [a] [1], [3]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a covered person,' within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC (see Insurance [*2]Law § 5221 [b] [2]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005])" (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U], *3 [App Term, 2d & 11th Jud Dists 2006]; see also 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]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). As plaintiff did not establish that a notice of intention to make claim form was submitted to MVAIC, plaintiff failed to establish its prima facie case (Insurance Law § 5202 [b]; §§ 5208, 5221 [b] [2]). Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the complaint.

Complete Med. Servs. of NY, P.C. v MVAIC, 2011 NY Slip Op 51835(U)

Although MVAIC contends that plaintiff's assignor failed to demonstrate that she was a resident of New York State (see Insurance Law § 5202 [b]), the record establishes that defendant  received the notarized notice of intention to make claim form, executed by plaintiff's assignor one day after the accident, which form sets forth the New York residence of plaintiff's assignor (see generally Insurance Law § 5221 [b] [2]). In addition, plaintiff's moving papers establish that plaintiff's claim form for the services at issue was mailed to MVAIC (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that the claim was not paid, that MVAIC did not timely deny plaintiff's claim and that the claim form was admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Inc. 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]). In light of the foregoing, plaintiff made a prima facie showing of its entitlement to summary judgment (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]).

Park v Zurich American Ins. Co., 2011 NY Slip Op 51836(U)

Contrary to plaintiff's contention, the affidavit of defendant's no-fault specialist sufficiently established that the denial of claim forms, which denied plaintiff's claims on the ground that they had been submitted more than 45 days after the services at issue had been rendered (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), were 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]). However, as defendant did not demonstrate that its denial of claim forms advised plaintiff that late submission of the proofs of claim would be excused if plaintiff could provide a reasonable justification for the late submissions (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]), defendant failed to establish its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]).

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co., 2011 NY Slip Op 51837(U)

Plaintiff failed to serve responses to the demands within the 60-day period provided for in the Civil Court's order of July 16, 2008. Moreover, the responses which plaintiff served after defendant had made its cross motion were incomplete. A conditional order of preclusion becomes absolute upon a party's failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional order of preclusion, plaintiff was required to demonstrate a reasonable excuse for the failure to timely comply with the order and the existence of a meritorious cause of action (see Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43  AD3d at 908). Plaintiff failed to meet this burden. As the preclusion order became absolute, plaintiff is unable to offer any evidence at trial in this action. Consequently, the Civil Court properly granted defendant's cross motion to dismiss the complaint.

Delta Diagnostic Radiology, P.C. v Autoone Ins. Co., 2011 NY Slip Op 51839(U)

In support of its motion, defendant submitted an affidavit of a manager employed by the company retained by defendant to schedule the IMEs. The affidavit established that the IME scheduling letters had been timely mailed pursuant to the affiant's employer'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 of the chiropractor who was to perform the IMEs to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the assignor at an IME is 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., 35 AD3d at 721). Consequently, the judgment is affirmed.

Fiutek v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51840(U)

Also included among defendant's moving papers was an affidavit from its claims examiner, which set forth defendant's standard office practices and procedures for mailing denial of claim forms. Among other things, he stated that, pursuant to defendant's standard office practices and procedures, denial of claims forms are mailed on the date they are generated. However, with respect to plaintiff's claim for services rendered between July 5, 2006 and July 31, 2006, while the denial of claim form pertaining to this claim is dated August 23, 2006, defendant's claims examiner averred that it was mailed on September 26, 2006. As a result, there is an issue of fact with respect to defendant's mailing of this denial of claim form (see Zuckerman v City of New York, 49 NY2d 557 [1980]). With respect to the remaining claims at issue, defendant's claim examiner established that defendant's denial of claim forms, which denied these claims based upon plaintiff's assignor's failure to appear for the IMEs, had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

Lynbrook Med., P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 51841(U)

Defendant established that the denial of claim forms, which denied plaintiffs' claims on the grounds of lack of medical necessity and that payment had been made in accordance with the workers' compensation fee schedule, 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]). Inasmuch as plaintiffs failed to show that the grounds for the denials were conclusory, vague or without merit as a matter of law, plaintiffs failed to make a prima facie showing of their entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). As a result, we need not consider the sufficiency of defendant's paper's submitted in opposition to the motion (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

Z.A. Acupuncture, P.C. v Geico Ins. Co., 2011 NY Slip Op 51842(U)

We find that the workers' compensation fee schedule, which is mandated by law (see Workers' Compensation Law § 13) and incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]), is "of sufficient authenticity and reliability that it may be given judicial notice" (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; see also CPLR 4511 [b]). Defendant demonstrated that it had fully paid plaintiff for the services rendered between November 17, 2005 and January 19, 2006 in accordance with the Official New York Workers' Compensation Chiropractic Fee Schedule and that it had issued partial denials on that ground (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is noted that defendant's submissions also demonstrate that services billed under former fee schedule treatment code 97780, which at the time the services were rendered should have been billed under the new fee schedule treatment code, 97810, were properly re-coded accordingly. Consequently, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to these claims are granted.

The claims for services rendered between January 23, 2006 and March 9, 2006, were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed a report written by the acupuncturist who had performed an independent medical examination (IME), as well as the acupuncturist's affidavit attesting to the truth of the report, which established, prima facie, a lack of medical necessity for any services rendered after the IME took place, including these services. Contrary to plaintiff's assertion on appeal, plaintiff did not submit opposition to defendant's cross motion, nor was there any admissible evidence in the record establishing the medical necessity of the services rendered in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to the claims for these services are 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]).

Points of Health Acupuncture, P.C. v GEICO Ins. Co., 2011 NY Slip Op 51843(U)

Defendant failed to establish why it changed the fee schedule treatment code for several of the services rendered between July 5, 2006 and July 17, 2006, and between July 28, 2006 and August 10, 2006. Accordingly, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to these claims were properly denied.

The claims for services rendered between August 14, 2006 and September 11, 2006 were denied on the ground of lack of medical necessity. In support of its cross motion, defendant annexed peer review reports, as well as affidavits executed by the acupuncturists who had performed the peer reviews, which set forth a factual basis and medical rationale for the conclusions that there was a lack of medical necessity for those services. Contrary to plaintiff's assertion on appeal, plaintiff did not submit opposition to defendant's cross motion, nor was there any admissible evidence in the record establishing the medical necessity of these services in order to raise an issue of fact (see CPLR 2219 [a]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the branches of defendant's cross motion seeking summary judgment dismissing the complaint as to these claims are 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]).

LVOC Acupuncture, P.C. v GEICO, 2011 NY Slip Op 51844(U)

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff's claim of $160.56 for the initial acupuncture visit on May 20, 2005, billed under fee schedule treatment code 99204 (cf. 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]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff's motion seeking summary judgment as to this claim.

We decline defendant's request that we search the record and grant defendant summary judgment as to the claims for services rendered between September 1, 2005 and September 6, 2005 (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment as to the claims for services rendered between May 20, 2005 and August 26, 2005 are granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on May 20, 2005 and are otherwise denied, and, upon searching the record, partial summary judgment is awarded to  defendant dismissing the remaining claims for these services.

LVOV Acupuncture, P.C. v GEICO Ins. Co., 2011 NY Slip Op 51845(U)

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff's claim of $160.56 for the initial acupuncture visit on October 6, 2005, billed under fee schedule treatment code 99204 (cf. Rogy Medical, 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]). Accordingly, we do not disturb so much of the order appealed from as granted the branch of plaintiff's motion seeking summary judgment as to this claim, and which denied defendant's cross motion insofar as it sought summary judgment dismissing the complaint as to this claim.

In light of the foregoing, the order is modified by providing that plaintiff's motion for summary judgment is granted only to the extent of awarding plaintiff summary judgment in the sum of $160.56 for the initial acupuncture visit on October 6, 2005 and is otherwise denied, and by further providing that defendant's cross motion for summary judgment is granted only to the extent of awarding summary judgment dismissing the remaining claims.

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 51846(U)

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form were timely mailed in accordance with its 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 affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (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]).  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., 35 AD3d at 722; 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]). Furthermore, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Alfa Medical Supplies, Inc. v Auto One Ins. Co., 2011 NY Slip Op 51851(U)

Contrary to plaintiff's assertion, the fact that the peer reviewer took into consideration medical records of other providers in formulating his opinion did not render the peer review reports inadmissible (see 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]).

PMR Physical Therapy v GEICO Gen. Ins. Co., 2011 NY Slip Op 51852(U)

"Plaintiff's motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff's business practices and procedures to establish that the documents annexed to plaintiff's motion papers constituted evidence in admissible form pursuant to CPLR 4518. As a result, plaintiff failed to make a prima facie showing of its entitlement to summary judgment" (PMR Physical Therapy v Country-Wide Ins. Co., 20 Misc 3d 127[A], 2010 NY Slip Op 51729[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 51853(U)

In support of its motion, defendant submitted an affidavit of the president of Media Referral, Inc., the independent medical review service retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME requests had been timely mailed in accordance with Media Referral, Inc.'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 affirmation of the doctor who was retained to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's claims examiner demonstrated that the claim denial form, based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claim based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). The opposing affirmation submitted by plaintiff's counsel was insufficient to raise a triable issue of fact.

S.M. LAC, LLP v Nationwide Mut. Ins. Co., 2011 NY Slip Op 51857(U)

Although plaintiff asserts that it attempted to submit opposition to defendant's motion, it acknowledges that the Civil Court rejected the papers as untimely. Thus, the order deciding the motion recites that the court considered only the moving papers (see CPLR 2219 [a]). In this posture, the judgment entered pursuant to the order must be considered as having been entered on default, and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 138 [A], 2007 NY Slip Op 50262[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the appeal is dismissed.

Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51859(U)

Contrary to defendant's contention on appeal, the claim at issue in the sixth cause of action was not denied based upon medical necessity. Since defendant failed to demonstrate that the medical necessity defense was preserved as to this claim, and further failed to establish the defense actually set forth in the denial of claim form, the branch of defendant's cross motion seeking the dismissal of this cause of action was properly denied. Furthermore, defendant did not proffer sufficient evidence to warrant the dismissal of the claim underlying the seventh cause of action, for an office visit. While defendant asserts that its partial payment was made at the proper, although reduced, rate, defendant failed to substantiate this assertion (cf. Rogy Medical, 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]).

App. Term, 1st Dept.

Pomona Med. Diagnostic, P.C. v MVAIC, 2011 NY Slip Op 51891(U) (App. Term, 1st 2011)

In this action to recover assigned no-fault benefits, Civil Court properly denied defendant's motion for summary judgment dismissing the claim. Defendant failed to meet its burden to establish, prima facie, 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]). Nor has defendant shown, on this record, that plaintiff was required to "exhaust its remedies" prior to seeking reimbursement (see 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]).

Multi-Specialty Pain Mgt. PC v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51677(U)(App. Term, 1st 2011)

In this action to recover assigned first-party no-fault benefits, defendant's submissions established prima facie that it properly mailed initial and follow-up notices of independent medical examinations (IMEs) to the assignor and her attorney, 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]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the IME requests or the assignor's failure to attend (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).

Court of Appeals

New York & Presbyt. Hosp. v Country Wide Ins. Co., 2011 NY Slip Op 07149 (2011)

Country Wide argues that the Appellate Division decision eviscerates the 30-day written notice of accident requirement and that the aforementioned regulations do not contain any language which provides that submission of a proof of claim for health care services within 45 days excuses the failure to give the threshold notice of accident within 30 days of the accident. In response, Presbyterian construes the stated no-fault regulations as exempting health care providers from the 30-day notice of accident requirement. In Presbyterian's view, its filing of the hospital facility form within 45 days of the date services were rendered constitutes both "proof of claim" and timely "notice of accident". For the reasons that follow, we agree with Country Wide's position.

 

The primary goals of New York's no-fault automobile insurance system are "to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists" (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). In furtherance of these objectives, "the Superintendent of Insurance has adopted regulations implementing the No-Fault Law (Insurance Law art 51), including circumscribed time frames for claim procedures" (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [emphasis added]).

 

11 NYCRR 65-1.1, the mandatory personal injury protection endorsement for motor vehicle liability insurance policies, provides:

 

"Conditions

"Action Against [Insurance] Company. No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage.

 

"Notice. In the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the Company, or any of the Company's authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident . . .

 

"Proof of Claim; Medical, Work Loss, and Other Necessary Expenses. In the case of a claim for health service expenses, the eligible injured person or that person's assignee or representative [e.g., a health care services provider] shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable but, in no event later than 45 days after the date services are rendered. . . ."

(emphasis added). In addition, 11 NYCRR 65-3.3 (d) states:

"The written notice required by . . . the mandatory and additional personal injury protection endorsement(s) shall be deemed to be satisfied by the insurer's receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS Form N-F 2) forwarded to the applicant pursuant to subdivision 65-3.4 (b) of this subpart or by the insurer's receipt of a completed hospital  facility form (NYS Form N-F 5)"

(emphasis added).

The "notice of accident" and "proof of claim" under 11 NYCRR 65-1.1 are independent conditions precedent to a no-fault insurer's liability (see Hospital for Joint Diseases, 9 NY3d at 317 ["These regulations require an accident victim to submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident. Next, the injured party or the assignee (typically a hospital . . .) must submit proof of claim for medical treatment no later than 45 days after services are rendered" (9 NY3d at 317 [emphasis added] [internal citations omitted])]). By ruling that the notice of accident condition was satisfied based on the plain language of 11 NYCRR 65-3.3 (d), the Appellate Division disregarded the separate and distinct nature and purpose of these requirements. Even more troubling, such a construction effectively reads the 30-day written notice of accident requirement out of the no-fault regulations. But nothing in 11 NYCRR 65-3.3 (d) explicitly dispenses with the 30-day notice of accident requirement. Rather, 11 NYCRR 65-3.3 (d) merely provides that a NF-5 form may constitute the written notice required under the notice of accident provision.

 

In other words, these regulations (read alone or in tandem) cannot be interpreted to mean that a hospital/assignee's timely submission of a proof of claim for health services within 45 days of discharge of the injured person excuses the insured/assignor's failure to give the threshold notice of accident within 30 days of the accident, or that health care service providers are exempt from the written 30-day notice of accident requirement. Neither 11 NYCRR 65-1.1 nor 11 NYCRR 65-3.3 (d) contains such language. That is, while 11 NYCRR 65-3.3 (d) allows a completed hospital facility form to satisfy the written notice of accident requirement, the regulation does not provide (or suggest) that a "proof of claim" in that form filed within 45 days of treatment satisfies the 30-day notice of accident requirement where, as here, the form was submitted to Country Wide after the 30-day period has expired.

 

Although the Department of Insurance has not issued any interpretive statements or opinions regarding the subject regulations, our case law provides some guidance as to the importance of the "notice of accident" and "proof of claim" requirements to the no-fault regulatory scheme. In Serio, the Court explained that in 2001, the Superintendent of Insurance, in response to an alarming increase in insurance fraud over the preceding nine years, amended these regulations (see 100 NY2d at 861-863). Specifically, the notice of accident requirement was reduced from 90 days to 30 days, and the time to provide proof of claim was reduced from 180 days to 45 days (id. at 860, 862) in order to, among other things, prevent the fraud and abuse the Superintendent linked to the lengthy time frames (id. at 862) — for example, there were numerous cases where individuals were "exploiting the time lag between the alleged loss and the deadline for submitting proof of the loss, coupled with the reality that insurers are given only 30  days to review and investigate claims before paying them without risk of penalties for denying or delaying a claim" (id. at 861). Thus, it is clear that the Superintendent of Insurance — the official responsible for administering the Insurance Law and promulgating the insurance regulations — viewed both the "notice of accident" and "proof of claim" as integral requirements/time periods that further the goals of the no-fault system. Moreover, Presbyterian's interpretation of 11 NYCRR 65-3.3 (d) would undercut the anti-fraud purpose of the reduced time periods, particularly in cases where treatment does not occur until months or years after the accident.

 

Based on the foregoing, the proper construction of the subject regulations is that an NF-5 form (or other form that can serve as proof of claim) may constitute timely notice of an accident, as permitted by 11 NYCRR 65-3.3 (d), only if such proof of claim is given within the 30-day period prescribed by 11 NYCRR 65-1.1. Any other construction is unwarranted and would undermine the importance of the 30-day time period to the no-fault system.

 

Presbyterian nevertheless argues that interpreting 11 NYCRR 65-3.3 (d) in Country Wide's favor "would severely impact the hospital's ability to submit a timely bill" in cases where the insurer is not readily identifiable. But the Superintendent has addressed these concerns. The regulations allow late notices of accident if there is "written proof providing clear and reasonable justification for the failure to comply with such time limitation" (11 NYCRR 65-1.1)^[FN1]. Indeed, the regulations specifically direct carriers to consider whether the injured person was a pedestrian or an occupant of a vehicle who may have difficulty identifying the proper carrier in assessing untimely notices of accident:

"The insurer shall establish standards for review of its determinations that applicants have provided late notice of claim or late proof of claim. In the case of notice of claim, such standards shall include, but not be limited to, appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer"

(11 NYCRR 65-3.5 [l]).  

Finally, as an assignee of all the rights, privileges and remedies to which Benitez was entitled under the No-Fault law, Presbyterian stood in the shoes of Benitez and acquired no greater rights than he had (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126 [1975] [Chief Judge Breitel wrote, "[i]t is elementary ancient law that an assignee never stands in any better position than his assignor."]). Here, because no written notice of accident was given, there was a failure to fully comply with the terms of the no-fault policy, which is a condition precedent to insurer liability. As a result, the assignment effectively became worthless (i.e., Benitez assigned nothing to Presbyterian) — you cannot assign your right to benefits if your right to those benefits has not been triggered, or if you had no right to those benefits in the first place.

For the foregoing reasons, the submission of the proof of claim within 45 days of the date health care services are rendered may not serve as timely written notice of accident after the 30-day period for providing such written notice has expired.

I’m back with the no-fault (bumped)

There are some more that vanished off the slip op site.  I'll check again tomorrow.

Update:  The cases that dissapeared, reapeared.  And there were a few new ones.

App. Div. 2nd

NYU-Hospital for Joint Diseases v Esurance Ins. Co., 2011 NY Slip Op 04436 (App. Div., 2nd 2011)

"A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4[c][11]) and must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated'" (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996, quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the "denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law" (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law based on the untimeliness of the denial of claim. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564).

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its "standard office practices or procedures designed to ensure that items were properly addressed and mailed" (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738).

Further, Esurance raised a triable issue of fact as to whether Cancian was "injured as a result of operating a motor vehicle while in an intoxicated condition" (Insurance Law § 5103[b][2]). Contrary to the hospital's contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518[a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).

NYU-Hospital for Joint Diseases v American Intl. Group, Inc., 2011 NY Slip Op 04437(App. Div., 2nd 2011)

The plaintiffs made a prima facie showing that the plaintiff Westchester Medical Center (hereinafter the hospital) was entitled to judgment as a matter of law on the third cause of action to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co. 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition, the insurer failed to raise a triable issue of fact as to whether it had timely denied the claim. Contrary to the insurer's contention, its letter to the hospital stating that payment of the claim was delayed "pending adjuster's review" and "investigation" did not serve to toll the 30-day statutory period (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d at 1046; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536), and, in any event, was not a timely request for verification made within 10 business days after the insurer's receipt of the hospital's claim (see 11 NYCRR 65-3.5[a]). 

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929, 930). Accordingly, the Supreme Court should have granted that branch of the hospital's motion which was for summary judgment on the third cause of action.

NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 2011 NY Slip Op 04219 (App. Div., 2nd 2011)

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff's claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "A proper denial of claim must include the information called for in the prescribed denial of claim form" (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; see 11 NYCRR 65-3.4[c][11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form "was fatally defective in that it omitted numerous items of requested information, and thus was incomplete" (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent's Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent's Hosp. & Med. Ctr v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).

For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.

The defendant's contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010, 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854). Contrary to the defendant's contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.

App Term 2nd

Active Imaging, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 50945(U) (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 that the only issue for trial would be whether the services rendered were medically necessary, as all elements of plaintiff's case had been established and defendant had timely denied the claim on the ground of lack of medical necessity. At the nonjury trial, defendant's attorney requested an adjournment to "secure the appearance of [its] witness in this matter." The Civil Court denied the application and issued a decision awarding judgment in defendant's favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court's determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant defendant an adjournment. Accordingly, the judgment is affirmed.

Queens Brooklyn Med. Rehab, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50978(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court entered June 19, 2009 as granted the branch of defendant's cross motion seeking to compel plaintiff to provide bank account information and produce copies of its corporate tax returns and its billing and management agreements, and provided that the complaint would be dismissed in the event plaintiff failed to comply with the order. Subsequent to the entry of the June 19, 2009 order, the Civil Court entered an order dismissing the action. The dismissal of the action rendered this appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 2007 NY Slip Op 50673[U], 15 Misc 3d 131[A] [App Term, 2d & 11th Jud Dists 2007]; Vista Surgical Supplies, Inc. v Lumbermans Mut. Cas. Co., 13 Misc 3d 138[A], 2006 NY Slip Op 52221[U] [App Term, 2d & 11th Jud Dists 2006]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

LDE Med. Servs., P.C. v Encompass Ins., 2011 NY Slip Op 50979(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Contrary to defendant's contention, the affidavit submitted by plaintiff's billing administrator was sufficient to establish that the documents annexed to plaintiff's moving 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]). However, as the pertinent facts concerning the failure of plaintiff's assignor to appear for an examination under oath are the same as those in LDE Med. Servs., P.C. v Encompass Ins. (29 Misc 3d 130[A], 2010 NY Slip Op 51845[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), for the reasons stated in that case, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied. We reach no other issue.

LDE Med. Servs., P.C. v Interboro Ins. Co., 2011 NY Slip Op 50946(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Contrary to the Civil Court's determination, "appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). As a result, although the first IME scheduling letter was sent to the assignor before defendant received plaintiff's claim forms, the scheduling letter was not a nullity (id.).

However, since defendant's moving papers did not contain evidence in admissible form from anyone with personal knowledge of the assignor's nonappearances at the IMEs, defendant failed to establish that the assignor had failed to appear at the IMEs (see id.; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Although defendant annexed to its reply papers affirmations from each of the doctors who were to perform the assignor's IMEs, in which they attested to the nonappearance of the assignor at the scheduled IMEs, said proof was improperly submitted for the first time in defendant's reply papers (see Bednoski v County of Suffolk, 67 AD3d 616 [2009]; Haggerty v Quast, 48 AD3d 629 [2008]; Jefferson v Netusil, 44 AD3d 621 [2007]). Consequently, defendant's cross motion for summary judgment was properly denied.

While defendant argues that plaintiff's motion for summary judgment should have been denied as premature since plaintiff failed to provide responses to defendant's discovery demands, defendant failed to show that discovery was needed in order to establish the existence of a triable issue of fact (see CPLR 3212 [f]; Delta Diagnostic Radiology, P.C. v Inteboro Ins Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, plaintiff's motion for summary judgment was properly granted.

Rogy Med., P.C. v Geico Ins. Co., 2011 NY Slip Op 50990(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant established that the denial of claim forms at issue were 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]). With respect to the claim at issue in plaintiff's first cause of action, which was denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor's conclusion that there was a lack of medical necessity for the services at issue. As a result, defendant demonstrated the existence of a triable issue of fact with respect to plaintiff's first cause of action (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]). Similarly, with respect to the claim at issue in the second cause of action, an issue of fact was presented as to whether plaintiff is seeking to recover in excess of the amount permitted by the worker's compensation fee schedule. Accordingly, the judgment is reversed, the order entered November 19, 2009 is vacated and plaintiff's motion for summary judgment is denied.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50867(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011) 

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it. MVAIC's proffered defense lacks merit since Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted (see Craniofacial Pain Mgt. v MVAIC, 29 Misc 3d 130[A], 2010 NY Slip Op 51843[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 25 Misc 3d 138[A], 2009 NY Slip Op 52363[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).

For more about this case, check out the comments over by JT.

Central Radiology Servs., P.C. v Commerce Ins. Co., 2011 NY Slip Op 50948(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavit submitted by defendant's claims adjuster was sufficient to establish that defendant's denial of claim forms were timely mailed in accordance with its 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]). Accordingly, defendant was not precluded from raising its defense of fraudulent procurement of the insurance policy (cf. Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]). As the affidavits annexed to defendant's motion papers established that the assignor had misrepresented his state of residence, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Plaintiff, as assignee, stands in the assignor's shoes and, thus, may not recover in this action (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the judgment is reversed, the order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 2011 NY Slip Op 50949(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, which motion was based upon, among other things, plaintiff's assignor's failure to attend independent medical examinations (IMEs), which had been scheduled by Hudson Valley Medical Consultants (HVMC).

In support of its motion, defendant submitted an affidavit of an employee of HVMC which sufficiently established that the IME requests had been timely mailed in accordance with HVMC'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 of an employee of the office manager of the psychologist who was to perform the IMEs, which was sufficient to establish that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant's no-fault specialist demonstrated that the claim denial forms, based on plaintiff's assignor's nonappearance at the IMEs, had been timely mailed pursuant to defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor's appearance at an IME "is a condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant properly denied plaintiff's claim based upon the assignor's failure to satisfy a condition precedent to coverage and, thus, was not precluded from raising such issue (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, ___ AD3d ___, 2011 NY Slip Op 01948 [1st Dept 2011]). Accordingly, the Civil Court's order granting defendant's motion for summary judgment dismissing the complaint is affirmed. In light of our determination, we need not reach the remaining contentions raised on appeal.

Yklik, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50868(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law because it did not demonstrate that defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Since plaintiff failed to establish its prima facie case, we need not consider the sufficiency of defendant's papers in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated and plaintiff's motion is denied.

Pesce, P.J., and Weston J., concur. 

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

The plaintiff provider made a prima facie showing of its entitlement to summary judgment by submitting evidentiary proof that the medical supplies had been provided to plaintiff's assignor. It further submitted irrefutable evidence that the prescribed statutory billing forms had been mailed and received by defendant insurer, and that the claims remained unpaid (Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). There is no assertion in the record that a partial payment of the claim was made (Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), therefore, it was incumbent upon defendant to demonstrate a timely denial. In opposition to the motion, defendant submitted the affidavit of an employee who had no personal knowledge of when the denial of claim forms were mailed to plaintiff (Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]), therefore, the Civil Court properly granted summary judgment to plaintiff. Accordingly, I vote to affirm the judgment.

Note the dissent.

Radiology Today, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 21161 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff contends that the discovery order was improper because, in the answer and in support of its motion to compel discovery, defendant failed to "state[] in detail" the "circumstances constituting the wrong," citing CPLR 3016 (b). There is no requirement that a defense predicated upon the failure to comply with "New York State or local licensing requirement[s]" (Insurance Department Regulations [11 NYCRR] 65-3.16 [a] [12]) be pleaded with particularity pursuant to CPLR 3016 (b) (see generally V.S. Med. Servs., P.C. v Allstate Ins. Co., 25 Misc 3d 39 [App Term, 2d, 11th & 13th Dists 2009]). In addition, while mere conclusory allegations are never sufficient to obtain discovery with respect to a Mallela-based defense, defendant's motion papers were sufficient to demonstrate that a Mallela-based defense was potentially meritorious. Plaintiff's motion for a protective order, filed nearly four months after defendant had served its supplemental discovery, was untimely (see CPLR 3122 [a]; Fair Price Med. Supply Corp. v ELRAC, Inc., 12 Misc 3d 119, 122 [App Term, 2d & 11th Jud Dists 2006]). The failure of a party to timely challenge the propriety of discovery demands normally "obligate[s] it to produce the information sought" (New Era Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U], *1 [App Term, 9th & 10th Jud Dists 2009]; see Fausto v City of New York, 17 AD3d 520, 522 [2005]), with the exception of items which are palpably improper or privileged (see Fausto, 17 AD3d at 522; Marino v County of Nassau, 16 AD3d 628 [2005]). As most of the discovery demands were not palpably improper or privileged, and in light of plaintiff's failure to provide any discovery, the judgment, insofar as appealed from, dismissing the complaint in the case at bar is affirmed.

Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff commenced this action to recover assigned first-party no-fault benefits by the service on October 17, 2006 of a summons with endorsed complaint. Defendant defaulted. Approximately two years and four months later, in February 2009, plaintiff moved for the entry of a default judgment. Defendant opposed the motion on the ground that it was supported by insufficient proof, and cross-moved to dismiss pursuant to CPLR 3215 (c). Plaintiff failed to offer any opposition to defendant's cross motion. By order entered February 18, 2010, the Civil Court granted plaintiff's motion to enter a default judgment unless defendant served and filed an answer within 30 days of the date of the order, and implicitly denied defendant's cross motion to dismiss the complaint pursuant to CPLR 3215 (c).

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 Corely, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). Upon a review of the motion papers, we find that dismissal of the complaint was required pursuant to CPLR 3215 (c).

Accordingly, the order is reversed, plaintiff's motion for the entry of a default judgment is denied, and defendant's cross motion to dismiss the complaint is granted.

We Do Care Med. Supply, P.C. v American Tr. Ins. Co., 31 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its cross motion, defendant submitted, among other things, an independent medical examination report which set forth a factual basis and a medical rationale for the doctor's determination that there was a lack of medical necessity for the medical supplies at issue. Defendant's showing that such supplies were not medically necessary was not rebutted by plaintiff.

In light of the foregoing, and the Civil Court's implicit CPLR 3212 (g) finding that defendant had timely denied the claim based on a lack of medical necessity, a finding which plaintiff does not challenge, defendant's cross motion for summary judgment dismissing the complaint 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]).

App Term 1st

Excel Radiology Serv., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 138(A) (App. Term 1st 2011) 

In this action to recover first-party no-fault medical benefits, defendant's motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant's failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The rest

R.E.G. Flushing Med. PC v Integon Natl. Ins Co, 2011 NY Slip Op 50975(U) (Nass. Dist. Ct. 2011)

In short, although Mr. Gomez's conflicting representations about his residence address raised legitimate issues for investigation, defendant's defense of "rate evasion fraud" (NCGS §58-2-164) was not proven by a preponderance of the evidence submitted. To the contrary, the evidence shows that Mr. Gomez maintained significant, provable ties to the State of North Carolina, including a long standing North Carolina residence address, a North Carolina driver's license, and close family ties with his mother in North Carolina. Accordingly, defendant's evidence fails to establish that Mr. Gomez was not "an eligible applicant" under the definitions of North Carolina law. As a result, defendant remained responsible under the policy for "medical payment coverage" of "reasonable expenses for necessary medical . . . services" that were provided to Mr. Gomez following an accident that occurred in New York State.

Turning to the second issue, the Court concludes, alternatively, that the defense of "rate evasion fraud" must be rejected on the ground that plaintiff is an "innocent third party" within the meaning of North Carolina's "rate evasion fraud" statute. Were this issue to be decided under New York law, the Court would be compelled to follow the lead of the Appellate Term, and to hold that New York's "innocent third party" doctrine protects "only innocent third parties who are injured" by someone who is guilty of fraudulent procurement of insurance. See A.B. Med. Services PLLC v. Commercial Mut. Ins. Co., 12 Misc 3d 8 (App Term, 2006). Thus, under New York caselaw, a health care provider acts "at its peril" when it accepts an assignment of no-fault benefits, and it remains equally subject to a defense that the insurance policy covering the assigned claim was "fraudulently procured" by the insured. Id.

The issue, here, is very similar, but the result ends up differently when analyzed under canons of statutory construction which require a court to give meaning to each part of a statute. As the Courts in North Carolina have recognized: "every part of the law shall be given effect if this can be done by any fair and reasonable intendment." Huntington Properties, LLC v. Currituck County, 153 NC App 218, 224 (2002), quoting In re Hickerson, 253 NC 716, 721 (1952).

Reading North Carolina's "rate evasion fraud" law as a whole, the Court cannot envision any class of persons or entities who would fall into the "innocent third party" category, except for the assignees and subrogees of the insured. The statutory "innocent third party exception" comes into play only if an insurer is asked to pay a claim "arising out of bodily injury or property damage suffered by the applicant" (emphasis added). So worded, the "innocent third party" language logically extends those entities who are involved in treating "bodily injuries" or remedying "property damage" that the insured has suffered. Plaintiff, a medical provider, clearly falls into this category. Consequently, the Court sees no basis for limiting the "innocent third party" exception to "innocent third parties who are injured" by the insured. Cf. A.B. Med. Services, PLLC v. Commercial Mut. Ins. Co., supra.

Admittedly, the issue is not free from doubt, and the Court has found no North Carolina cases in point. Nor has it found any illuminating legislative history. But in the absence of contrary authority from North Carolina, the Court believes that penalizing plaintiff would be unwarranted. The plaintiff is an "innocent third party." It provided medical services to a person who was insured by the defendant. It took an assignment in good faith, expecting to be paid. If Mr. Gomez committed a fraud, plaintiff was not a
party to it. Accordingly, the Court concludes that plaintiff, as an "innocent third party", should not be foreclosed from obtaining payment for its services solely on account of alleged "rate evasion fraud" by the insured.

For these reasons, the defense set forth in defendant's denials is rejected, upon the facts and as a matter of law. Judgment is granted to plaintiff. Submit Judgment on Notice.

Some good old fashioned No-Fault

The big one is Langan, which I posted about last week, and there is a little chatter about a footnote if you are interested.

A big change is coming to no-fault paradise.  While you are there checking for the changes click on the NYFAIR thing–you will find NYFAIR's update on the Insurance Industry's 2011 agenda.

The Appellate Term, First Department published a slew of interesting cases, indicating a very sharp division between how the First and Second Department address peer review defenses, among other things.

Devonshire Surgical Facility Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50511(U) (App. Term, 1st 2011)

Since the plaintiffs' motion was based upon an alleged "change in the law that would change the prior determination," it was, in actuality, a motion for renewal (CPLR 2221[e][2]; see Daniels v Millar El. Indus., Inc., 44 AD3d 895 [2007]). While there is no time limitation in which to make a motion for leave to renew (see CPLR 2221[e]; Ramos v City of New York, 61 AD3d 51, 54 [2009], app withdrawn 12 NY3d 922 [2009]; Luna v Port Auth. of NY & N.J., 21 AD3d 324, 326 [2005]), plaintiffs failed to demonstrate that their delay in seeking renewal for over four years was, in fact, due to a change in the law.

Contrary to plaintiffs' contention, appellate authority in their favor long preceded the motion court's decision in 2005 (see Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]; Quality Med. Healthcare, P.C., v Lumberman's Mut. Cas. Co., 2002 NY Slip Op 50098[U] [2002]), and the case cited by plaintiffs does not represent a change in decisional law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 n 5 [2007]). Moreover, plaintiffs failed to present a reasonable justification for their lengthy four-year delay in seeking renewal (see Levy v New York City Health & Hosps. Corp., 40 AD3d 359, 360 [2007], lv dismissed 9 NY3d 1001 [2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50512(U)(App. Term, 1st 2011)

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant's documentary submissions established its receipt of plaintiffs' claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs' motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.

This is the first time I've seen anyone try SJ on the complaint (CPLR 3213)

Devonshire Surgical Facility, Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50513(U)(App. Term, 1st 2011)

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs' claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs' claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50514(U)(App. Term, 1st 2011)

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to grant (1) summary judgment in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000 and (2) partial summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $7,835.29; and, as so modified, order affirmed without costs. The Clerk is directed to enter judgment accordingly (see Devonshire Surgical Facility v American Tr. Ins. Co., Cal. No. 11-012, decided simultaneously herewith).

Another SJ on the complaint.

Stephen Matrangalo, DC, PC v Allstate Ins. Co., 2011 NY Slip Op 50517(U)(App. Term, 1st 2011)

Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a "financial relationship" with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.

Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a "financial relationship" with the health care provider (Public Health Law § 238-a[1][a]). A "financial relationship" is defined in section 238(3) of the Public Health Law as "an ownership interest, investment interest or compensation arrangement." Critically, a "compensation arrangement" means "any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider" (Public Health Law § 238-a[5][a]), but does not include "payments for the rental or lease of office space" if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).

The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any "financial relationship" between plaintiff and the referring practitioner. No allegation is made that there was any "ownership interest" or "investment interest" between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant's limited submission failed to establish that there was any "compensation arrangement" in general or any "payments for the rental or lease of office space" in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

The Appellate Term, Second Department put out a few decisions as well.

A.M. Med. Servs., P.C. v Allstate Ins. Co., 2011 NY Slip Op 50436(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011) 

In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a nonjury trial, awarded plaintiff "the sum of $10,196 plus statutory interest and attorney's fees." Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney's fees.

On October 24, 2006, defendant filed a "Rejection of Proposed Judgment." In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney's fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney's fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney's fees. Thereafter, plaintiff submitted the judgment to the marshal's office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant's motion. This appeal by plaintiff ensued.

A review of defendant's moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney's fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the Court of [*2]Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 [2007]), which had held that attorney's fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney's fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney's fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney's fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney's fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney's fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk's mistake in entering a judgment which included attorney's fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879 [1995] cf. Bank of NY v Carlucci, 289 AD2d 349 [2001] [where attorney's fees are not statutorily fixed, an award of attorney's fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney's fees in the sum of $850.

Alur Med. Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50438(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit submitted by defendant's claims examiner in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the equipment provided was not medically necessary, were 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]; 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]). The fact that there were handwritten notations on the claim denial forms did not [*2]affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.

In addition, the affirmed peer review reports submitted by defendant's doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the medical equipment 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]; 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]). Contrary to plaintiff's assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see 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]).

Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see 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 2009]; cf. 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]). In view of the foregoing, plaintiff's motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant's cross motion.

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit of defendant's litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) 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]). The mere denial by plaintiff's medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant's time to pay or deny the claims had not begun to run (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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

And there was a very interesting decision from a lower court.

Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 2011 NY Slip Op 50500(U) (Dist Ct Nassau County, Second Dist)

In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor's opinion, carte blanche, without scrutinizing the report's contents. As plaintiff's counsel cogently argues, "[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale." The Court agrees that such scrutiny is necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor's opinion lacks a sufficient "factual basis" and/or "medical rationale" because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant's motion should be denied regardless of whether plaintiff submits expert proof of its own.

In the instant matter, plaintiff's opposition points to such shortcomings in the peer review report. The peer review doctor's opinion rests, in large part, upon his factual assumption that the medical records failed to document "persistent radicular symptoms". However, as plaintiff's counsel demonstrates, this assertion is contradicted by the very medical records that defendant's expert reviewed.

Notably, the reports of claimant's treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant's neck and back. Several weeks after claimant's accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of "cervical radiculopothy." Upon Dr. Grigoran's referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from "frequent" neck and back pain, accompanied by "numbness". A cervical compression test was "positive" for "radicular symptomology." So, too, the results of a Spurling test were reported as "positive".

In light of theses symptoms and test results, Dr. Kahn's diagnosis included findings of "Cervical/Lumbar radiculopothy," and "Cervical radiculitis." His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities "to elucidate the degree and location of compression on existing nerve roots and peripheral nerves." Not surprisingly, the electro-diagnostic test results revealed "an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy."

When such test results are viewed together with claimant's well documented medical history, it is difficult to accept, at face value, the peer review doctor's factual assumption that he found no evidence of "persistent radicular symptoms" which may have justified Dr. Kahn's decision to recommend electro-diagnostic testing. Moreover, in the peer doctor's description of the accepted standards and protocols for electro-diagnostic testing, defendant's peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms "are persistent or unresponsive to initial conservative treatments."

In the face of the medical record evidence, cited above, and the absence of proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff's opposition makes a convincing case that defendant's moving papers fail to meet its burden. To a significant extent, the peer review doctor's opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant's entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.

 

The No-Fault (most of March 2011)

I just realized that I haven't posted a no-fault case in over a month.

Appellate Division, Second Department

Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 2011 NY Slip Op 02379 (App. Div., 2nd 2011)

The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against the defendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefits under a contract of insurance entered into between the plaintiff's assignee and the defendant. The defendant thereafter moved to modify the judgment pursuant to CPLR 5015(a), belatedly asserting that the judgment exceeded the coverage limit of the subject policy due, in part, to payments previously made under the policy to other health care providers. In the order appealed from, the Supreme Court properly denied the defendant's motion to modify the judgment.

The defendant failed to specify on which of the five subdivisions of CPLR 5015(a) its motion was based, much less establish its entitlement to relief on any of the enumerated grounds. To the extent that the defendant sought modification pursuant to CPLR 5015(a)(2) based upon "newly-discovered evidence," the defendant failed to demonstrate that the evidence offered in support of the motion, i.e., an affidavit of an employee setting forth the policy limits and the amount of benefits paid for alleged prior claims, "was not available at the time of the prejudgment proceedings" (Jonas v Jonas, 4 AD3d 336, 336; see Sicurelli v Sicurelli, 73 AD3d 735).

Moreover, although courts possess inherent discretionary power to grant relief from a judgment or order in the interest of justice, this "extraordinary relief" is not appropriate under the circumstances presented (Jakobleff v Jakobleff, 108 AD2d 725, 726-727; see Selinger v Selinger, 250 AD2d 752). The plaintiff previously moved for summary judgment on the complaint, seeking a certain amount of benefits, in accordance with the no-fault billing statement sent to the defendant, and this Court reversed the denial of that motion and granted the plaintiff's motion for summary judgment on the complaint (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045). Only after the plaintiff obtained, upon this Court's order, a judgment from the Clerk of the Supreme Court, Nassau County, representing, inter alia, the amount of benefits sought in the complaint, did the defendant raise the issue of exhaustion of the policy limits. Under these circumstances, modification of the judgment in the interest of justice is not warranted.

Manuel v New York City Tr. Auth., 2011 NY Slip Op 02362 (App. Div., 2nd 2011) ("Alighting")

For the no-fault statute to apply, the vehicle must be a proximate cause of the injury (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215). To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643). Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665; Duroseau v Town of Hempstead, 117 AD2d 579).

Here, the negligent operation of a motor vehicle was the proximate cause of the plaintiff's injuries. The plaintiff's theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop. Moreover, this is not a case in which the plaintiff was completely outside of the vehicle when the accident occurred (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 215; Santo v Government Empls. Ins. Co., 31 AD3d 525; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643), or in which the plaintiff was the victim of an intentional tort (see Lancer Ins. Co. v Peterson, 175 AD2d 239; Locascio v Atlantic Mut. Ins. Co., 127 AD2d 746; Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 AD2d 1004).

This case is analogous to Hill v Metropolitan Suburban Bus Auth. (157 AD2d 93). In Hill, the plaintiff fell while descending the stairs of the rear exit of a bus, when she tripped on a nail or tile on the bus staircase and fell into a hole in the sidewalk. This Court agreed with the defendant's assertion that the no-fault law applied, because the accident arose from the use or operation of a bus (see Matter of Celona v Royal Globe Ins. Co., (85 AD2d 635).

NYCTA was not estopped from arguing that the accident arose from the use or operation of the insured vehicle, as NYCTA never did anything to lead the plaintiff to believe that it would not argue that the accident arose from the use or operation of a motor vehicle (see Walsh v Prudential Ins. Co. of Amer., 101 AD2d 988). NYCTA stated at trial that first-party benefits had been denied because it had no record of the accident.

Appellate Division, FIrst Department

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 2011 NY Slip Op 01948 (App. Div., 1st 2011)

The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants' assignors' failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). The failure to appear for IMEs requested by the insurer "when, and as often as, [it] may reasonably require" (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Fogel, 35 AD3d at 721-22).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).

There is likewise no merit to defendants' contention that the IME request notices were invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time-frames set forth in the No-Fault implementing regulations, and that defendants' assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 [2007]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).

Defendants' argument that plaintiff was required to demonstrate that the assignors' failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]), applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).

I think this is an absolutely terrible decision.  The language of the decision permits an insurance policty to be voided ab initio as a result of the actions of someone other than the insured.  So if the insured has an accident and a passenger gets hurt, but does not attend an IME, the insured's policy goes bye bye.  It also expands the scope of a coverage defense beyond the Court of Appeal's definition.  And the decision is in conflict with longstanding law from the Second Department.  Hopefully the Court of Appeals will take this one.

For a much longer discussion of this decision and what it spells for the future of no-fault, head over to No-Fault Defender where there are 60 comments and counting.

Appellate Term, Second Department

The Appellate Term denied leave for Belt Parkway Imaging, P.C. v State Wide Ins. Co., 2010 NY Slip Op 52229(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Gateway Med., P.C. v Progressive Ins. Co., 2011 NY Slip Op 50336(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2011).

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant's motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. "If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner" (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant's motion to dismiss the complaint should have been granted.

JT had an interesting take on the case.

W & Z Acupuncture, P.C. v Allstate Ins. Co., 2010 NY Slip Op 52385(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Subsequent to that [discovery] order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

The bracketed word is mine.

Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 50315(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

The billing records submitted by plaintiff in support of its motion for summary judgment do not assert that the supplies at issue had been delivered to plaintiff's assignor. Nor did plaintiff's affiant state that he had delivered the supplies to plaintiff's assignor. Indeed, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or to (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff's moving papers failed to demonstrate its prima facie entitlement to summary judgment. 

We note that the holding in Fair Price Med. Supply Corp. v Travelers Indem. Co. (10 NY3d 556 [2008]) does not impact our decision in this case because, in that case, the issue of whether the plaintiff had made out a prima facie case was not dealt with by either the Appellate Division (42 AD3d 277 [2007]) or the Court of Appeals (10 NY3d 556). The Court of Appeals held that a defense that the billed-for services or supplies were never provided is precluded if the insurer fails to timely deny the claim, and both courts limited their discussions to the preclusion issue. Here, we are asked to consider whether plaintiff's moving papers made out a prima facie case in the first instance so as to even shift the burden to defendant to raise a non-precluded defense (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and we conclude that they did not.

The Court distinguishes Fair Price in a way that renders the Court of Appeals' decision meaningless.

Quality Health Prods. v Country-Wide Ins. Co., 2011 NY Slip Op 50328(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Plaintiff established that defendant did not pay plaintiff's claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant's denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff's papers. Moreover, plaintiff's affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant's denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant's paper's submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on a different ground.

Westchester doesn't quite say what they cite it to say.

Exoto, Inc. v Progressive Ins. Co., 2011 NY Slip Op 50329(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

On appeal, plaintiff asserts that it provided defendant with the NF-3 form it requested as additional verification. Plaintiff did not subsequently respond to defendant's follow-up request seeking the same verification because defendant failed to clearly state why the previously submitted NF-3 form was insufficient. Consequently, plaintiff argues, it is not in default in providing the requested verification.

A review of the record indicates that each of defendant's requests for NF-3 forms states, in pertinent part, that "Every box must be fully completed, blank boxes will not be accepted." It is uncontroverted that the box on the NF-3 form plaintiff provided in response to defendant's initial verification request – – wherein the provider's signature should be placed – – was left blank. Therefore, when defendant issued its follow-up request which, again, informed plaintiff that "Every box must be fully completed, blank boxes will not be accepted," defendant clearly apprised plaintiff of why the submitted NF-3 form did not satisfy its request for verification.

Since plaintiff did not demonstrate that it had provided defendant with the requested verification prior to the commencement of the instant action, the 30-day period within which defendant was required to pay or deny the claim 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]). Consequently, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint as premature and denied plaintiff's cross motion for summary judgment. Accordingly, the judgment is affirmed.

If you knew the facts of this case you would cringe after reading this decision.

CPLR R. 2219 Time and form of order.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50331(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Contrary to the determination of the Civil Court, MVAIC defaulted because it failed to submit written opposition to plaintiff's motion for summary judgment (see CPLR 2219 [a]; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, MVAIC's motion properly sought to vacate the default judgment entered against it.

In support of its motion, under the circumstances presented, MVAIC established both a reasonable excuse for its default and the existence of a potentially meritorious defense. Accordingly, MVAIC's motion to vacate the default judgment entered against it should have been granted (see Strauss v R & K Envtl., 66 AD3d 766 [2009]; New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511 [2006]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]).

Go here for some background on this appeal.

Appellate Term, First Department

Now take a look at how the First Department approaches and MVAIC appeal.  Same attorneys.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50432(U) (App. Term, 1st 2011)

[A]ffirmed, with $10 costs.

In this action by plaintiff-provider to recover assigned first-party no-fault benefits, defendant MVAIC's motion for summary judgment dismissing the claim based on plaintiff's failure to establish that its assignor qualified for MVAIC coverage, was properly denied (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (___AD3d ___, 2011 NY Slip Op 00176 [2011]). Nor has defendant established that plaintiff was required to "exhaust its remedies" prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Defendant's argument, raised for the first time on appeal, that it is entitled to dismissal of the action as premature based on outstanding verification requests is without merit (id.).

Kind of a big deal (below).  I forgot whether I posted this before and I don't feel like checking.

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 30 Misc 3d 141(A) (App. Term, 1st 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

Combine this decision with Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010), Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and you have something interesting.

no fault gets curiouser and curiouser

M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., 2011 NY Slip Op 01525 (App. Div. 1st 2011)

It is well settled that "the No-Fault Law does not codify common-law principles; it creates new and independent statutory rights and obligations in order to provide a more efficient means for adjusting financial responsibilities arising out of automobile accidents" (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]). Since it is undisputed that there existed no contract between plaintiff's assignor and the NYCTA, the common carrier's obligation to provide no-fault benefits arises out of the no-fault statute. Therefore, the three-year statute of limitations as set forth in CPLR 214(2) is applicable here.

What does this mean for self-insureds?

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 2011 NY Slip Op 50276(U) (App. Term, 1st 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

I’m having an existential crisis

In the meantime, here are the recent no-fault decisions.

Appellate Term 1st

Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 50040(U) (App. Term, 1st Dept)

Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.'s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers' Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding [*2]defendant's interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant's motion for summary judgment dismissing Spring's claims — which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule — should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [2009]).

Defendant's motion for summary judgment dismissing the claim of plaintiff Right Aid Diagnostic Medicine, P.C. based on lack of medical necessity was properly denied, since defendant did not demonstrate as a matter of law that it timely denied the claim within the statutory 30-day period (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). We note in this connection that the reply affirmation submitted by Right Aid could not be considered for the purpose of showing a prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006]). 

Pomona Med. Diagnostic v MVAIC, 2011 NY Slip Op 50042(U) (App. Term, 1st Dept.)

Defendant's motion for summary judgment dismissing the complaint was properly denied, albeit for reasons other than those stated by Civil Court. In support of its contention that plaintiff's assignor was not a "qualified" person entitled to payment of first-party no-fault benefits by defendant (see Insurance Law § 5221[b]), defendant relied on inadmissible hearsay — an uncertified computer printout of an "insurance activity expansion" (see Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). In any event, the expansion does not establish that there was a policy of insurance in effect at the time of the accident (see generally id.; cf. Matter of Commercial Union Ins. Co. (Kim), 268 AD2d 296 [2000], lv denied 95 NY2d 762 [2000]). Defendant's submissions are also insufficient to establish as a matter of law that plaintiff's assignor did not comply with the notice of claim requirements (see Insurance Law § 5208). 

Appellate Term 2nd

Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21010 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is uncontested that defendant established that the IME requests were timely mailed in accordance with HVMC's standard office practices and procedures and that the assignors failed to appear for the IMEs (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). However, plaintiff contends that defendant's insurance policy, which incorporates the language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires that IMEs of eligible injured persons (EIPs) be conducted only by physicians, to the exclusion of other healthcare providers, even when the health services for which first-party no-fault benefits are sought were provided by non-physicians. In rejecting [*2]plaintiff's contention, the Civil Court relied on an opinion letter of the State Insurance Department, dated March 12, 2004 (see 2004 Ops Ins Dept No. 04-03-10). We find that the Insurance Department Regulations (11 NYCRR part 65), read as a whole, in accordance with the rules of construction, and the State Insurance Department's opinion letter, to which we accord great deference, lead to the conclusion that the requirement that an EIP submit to medical examinations, as set forth in the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), should not be limited strictly to examinations by physicians. Thus, in the instant matter, we find that the psychologist retained by defendant could properly have conducted the IMEs of plaintiff's assignors, who had received psychological treatment (see generally Stephen Fogel Psychological, P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31 AD3d 509 [2006]). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of healthcare providers who can perform IMEs to physicians, thereby delaying the processing of no-fault claims (see also Stephen Fogel Psychological, P.C., 35 AD3d at 722). Therefore, we find that defendant properly denied plaintiff's claims based on its assignors' failure to satisfy a condition precedent to coverage.

Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc., 2011 NY Slip Op 21012 (App. Term, 9th & 10th Jud. Dists. 2011)

With very limited exceptions, an insurer's failure to pay or deny a claim within the 30-day claim determination period (see Insurance Law § 5106) precludes the insurer from interposing most defenses to payment of no-fault benefits, including the fact that medical services or medical [*2]equipment billed for were never actually provided (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556[2008]). If an insurer is precluded from asserting a defense due to its failure to pay or deny a claim within the 30-day claim determination period, it may not later seek to recover amounts it paid on the claim based on a theory of unjust enrichment (see e.g. Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). However, where, as here, an insurer timely pays a claim within the 30-day claim determination period, the insurer is not foreclosed from affirmatively commencing an action to recover the amounts paid on the claim when the insurer later discovers that the claim is fraudulent (see State Farm Mut. Auto Ins. Co. v Grafman, 655 F Supp 2d 212, 223-224 [ED NY 2009]; State Farm Mut. Auto Ins. Co. v James M. Liguori, M.D., P.C., 589 F Supp 2d 221 [ED NY 2008]; see also Carnegie Hill Orthopedic Servs. P.C. v GEICO Ins. Co., 19 Misc 3d 1111[A], 2008 NY Slip Op 50639[U] [Sup Ct, Nassau County 2008, Austin, J.]; Progressive Northeastern Ins. Co. v Advanced Diagnostic & Treatment Med., NYLJ, Aug. 2, 2001, at 18, col 2 [Sup Ct, NY County, Gammerman, J.]). The fact that the insurer chose to pay first-party no-fault benefits within the 30-day claim determination period, at a point when the insurer had no reason to deny the claim, "cannot in any sense be taken as a concession that the claim is legitimate" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]). Indeed, an opinion letter issued by the New York State Department of Insurance specifically states that the No-Fault Law "is in no way intended and should not serve as a bar to subsequent actions by an insurer for the recovery of fraudulently obtained benefits from a claimant, where such action is authorized under the auspices of any statute or under common law" (Ops Gen Counsel NY Ins Dept [Nov. 29, 2000]). The rationale behind this interpretation is that "payment of fraudulently obtained No-Fault benefits, without available recourse, serves to undermine and damage the integrity of the No-Fault system, which was created as a social reparations system for the benefit of consumers. To conclude that the No-Fault statute bars the availability of other legal remedies, where the payment of benefits [was] secured through fraudulent means, renders the public as the ultimate victim of such fraud, in the form of higher premiums based upon the resultant increased costs arising from the fraudulent actions" (id.). Moreover, "[t]here is nothing in the legislative history or case law interpretations of the statute or in Insurance Department regulations, opinions or interpretations of the statute that supports the argument that the statute bars such actions" (id.).

Accordingly, contrary to the conclusion of the District Court, plaintiff is not barred from bringing this action seeking recovery of the amount it paid to defendant. As plaintiff demonstrated its compliance with CPLR 3215 (f) and CPLR 3215 (g) (4) (i), the District Court should have granted plaintiff's motion for leave to enter a default judgment.

 

62-41 Woodhaven Med., P.C. v Adirondack Ins. Exch., 2011 NY Slip Op 50026(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's cross motion papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). As defendant's cross motion papers were sufficient to establish that special circumstances exist which warrant [*2]disclosure of plaintiff's corporate tax returns and its professional employees' tax records (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; 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]), the order, insofar as appealed from, is affirmed.

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v MVAIC, 2011 NY Slip Op 50028(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff, as assignee, is required to exhaust its remedies against the owner of the vehicle in which plaintiff's assignor was riding 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 Dists 2008]; see also Knight v Motor Veh. Acc. Indem. Corp., 62 AD3d 665, 666 [2009]; cf. Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Until plaintiff [*2]exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]). Accordingly, the order is reversed and MVAIC's motion for summary judgment dismissing the complaint is granted.

Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50033(U) (App. Term, 9th & 10th Jud. Dists. 2011)

In support of its cross motion and in opposition to defendant's motion for summary judgment, plaintiff did not assert that it had never received the initial and follow-up verification requests nor did it assert that it had fully complied with these requests. Plaintiff's attorney merely argued that since the affidavit of the hospital biller, taken together with the copy of the certified return receipt card, established that defendant had received the bill on December 22, 2008, defendant's initial verification request, sent on November 26, 2008, pre-dated defendant's receipt of the bill and was therefore a nullity. However, the record establishes that defendant's initial verification request was sent to plaintiff after plaintiff had sent, and defendant had received, a UB-04 form, which specified the treatment rendered. The UB-04 form is the successor to the UB-92 form and the functional equivalent of the NF-5 form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [f]). Accordingly, defendant's initial verification request was not untimely (cf. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

Since plaintiff has not rebutted defendant's prima facie showing that defendant's initial request and follow-up request for verification were timely and that plaintiff failed to respond to same, defendant established that its time to pay or deny the claim was tolled. Consequently, defendant's motion for summary judgment dismissing the complaint, on the ground that the action was premature, should have been granted (see 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]; 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]). Accordingly, the order is reversed, defendant's motion is granted and plaintiff's cross motion for summary judgment is denied.

Radiology Today, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 50035(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In light of the subsequent order granting defendant's motion to dismiss the complaint (Rudolph Greco, J.) and the judgment entered thereon on November 16, 2009, the right of direct appeal from the order entered September 25, 2009 terminated (see Matter of Aho, 39 NY2d 241, 248 [1976]).

B.Y., M.D., P.C. v GEICO Indem. Co., 2011 NY Slip Op 50036(U) (App. Term, 9th & 10th Jud. Dists. 2011)

Thereafter, the parties participated in mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28) and, after the arbitration hearing, the arbitrator found in favor of plaintiffs. Defendant served and filed a demand for a trial de novo (seeRules of the Chief Judge [22 NYCRR] § 28.12), and plaintiffs moved to strike defendant's demand. In support of plaintiffs' motion, plaintiffs' attorney asserted that, while defendant had appeared at the arbitration by its attorney, defendant's attorney's participation had been minimal, and, thus, defendant should have been deemed to be in default. As a result, plaintiffs contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). Defendant submitted opposition papers, and the District Court denied plaintiffs' motion. The instant appeal ensued.

The Rules of the Chief Judge (22 NYCRR) § 28.12 (a) provides that a demand for a trial de novo "may be made by any party not in default." A party's failure to appear at an arbitration hearing constitutes a default (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]). Even where a defendant has appeared by counsel at an arbitration hearing, if such appearance is "without his client[]" and the defendant's counsel "refus[es] to participate in the hearing," the defendant is [*2]similarly deemed to have defaulted (Bitzko v Gamache, 168 AD2d 888, 888 [1990]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426 [1989]). However, where, as here, a defendant's attorney appears on behalf of his client at the arbitration hearing without any witnesses, but otherwise participates in the hearing by attempting to refute the plaintiff's case, the defendant has not defaulted (see e.g. Tripp v Reitman Blacktop, 188 Misc 2d 317 [App Term, 9th & 10th Jud Dists 2001]; San-Dar Assoc. v Adams, 167 Misc 2d 727 [App Term, 1st Dept 1996]). Accordingly, the District Court properly denied plaintiffs' motion to strike defendant's demand for a trial de novo.

Appellate Division

Westchester Med. Ctr. v Allstate Ins. Co., 2011 NY Slip Op 00377 (App. Div., 2nd 2011)

The order entered December 21, 2009, did not decide the plaintiff's motion to hold the defendant in contempt for failure to comply with an information subpoena dated March 30, 2009, or the defendant's cross motion to quash the information subpoena, but instead, held that motion and cross motion in abeyance and referred them for a hearing. Accordingly, no appeal lies as of right from that portion of the order (see CPLR 5701[a][2][v]; Evan S. v Joseph R., 70 AD3d 668; Quigley v Coco's Water Café, Inc., 43 AD3d 1132), and we decline to grant leave.

A defendant seeking to vacate a judgment entered on default must demonstrate a [*2]reasonable excuse for its delay in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677). The defendant established through an employee's affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons and complaint to its attorney, a reasonable excuse for the short period of time following service of the complaint in which it failed either to appear or answer the complaint (see Perez v Travco Ins. Co., 44 AD3d 738; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743). Furthermore, the defendant demonstrated that it has a potentially meritorious defense to the action. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate its default and to compel acceptance of its answer in light of the strong public policy that actions be resolved on their merits, the brief delay involved, the defendant's lack of willfulness, and the absence of prejudice to the plaintiff (see Perez v Travco Ins. Co., 44 AD3d 738; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442). 

Almost related to no-fault.

Quinones v Ksieniewicz, 2011 NY Slip Op 00270 (App. Div., 1st 2011)

However, defendants failed to establish prima facie that plaintiff did not sustain a medically determined injury "of a non-permanent nature" that prevented him from performing substantially all of his customary and daily activities for 90 of the 180 days immediately following the accident (see Toussaint v Claudio, 23 AD3d 268 [2005]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). The reports of defendants' medical experts were based on examinations of plaintiff conducted nearly two years after the subject accident, and addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident. The MRI studies that the defense experts reviewed were performed 10 months after the accident.

Black Tie Optional: Formal and Informal Judicial Admissions

Zegarowicz v Ripatti, 2010 NY Slip Op 07163 (App. Div., 2nd 2010)

Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81 & 3 of Watertown, 288 AD2d 890, 891; Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusive of the facts admitted in the action in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655).

Here, HVT made a formal judicial admission that it was listed as owner on the certificate of title. A certificate of title is prima facie evidence of ownership (see Vehicle and Traffic Law § 2108[c]; Switzer v Aldrich, 307 NY 56; Corrigan v DiGuardia, 166 AD2d 408; Salisbury v Smith, 115 AD2d 840) and, thus, the Supreme Court erred in, upon reargument, adhering to its original determination [*3]granting the motion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. Since this presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question (see Aronov v Bruins Transp., 294 AD2d 523; Dorizas v Island Insulation Corp., 254 AD2d 246), the matter must be remitted to the Supreme Court, Westchester County, for a new trial on the issue of liability, a trial on the issue of damages, if warranted, and the entry of an appropriate amended judgment thereafter.

Roxborough Apts. Corp. v Kalish, 2010 NY Slip Op 20402 (App. Term. 1st 2010)

Statements made in a pleading verified by a person with personal knowledge of the content of the statements are formal judicial admissions, which dispense with the production of evidence and concede, for the purposes of the litigation in which the pleading was prepared, the truth of the statements (see People v Brown, 98 NY2d 226, 232 n2 [2002]; see also CPLR 3020[a], 3023). However, statements made in a pleading "upon information and belief" do not [*2]constitute judicial admissions (see Empire Purveyors, Inc. v Weinberg, 66 AD3d 508 [2009]; Scolite Intern. Corp. v Vincent J. Smith, Inc., 68 AD2d 417 [1979];see also Rosar Realty Corp. v Leavin, 7 AD3d 295 [2004]; cf. Bogoni v Friedlander, 197 AD2d 281 [1994], lv denied 84 NY2d 803 [1994]; Hirsch, Inc. v Town of N. Hempstead, 177 AD2d 683 [1997]; but see Ficus Investments, Inc. v Private Capital Mgt., LLC, 61 AD3d 1 [2009]).

Here, the statements in the underlying holdover petition were verified by landlord's attorney upon information and belief. Therefore, those statements do not constitute formal judicial admissions (cf. Riverside Syndicate, Inc. v Richter, 26 Misc 3d 137[A], 2010 NY Slip Op 50183[U] [2010]; East Egg Assoc. v Diraffaele, 158 Misc 2d 364 [1993], affd 160 Misc 2d 667 [1994]). Moreover, none of the other documents submitted by tenants on their motion contain formal judicial admissions by landlord regarding the existence of a lease containing an attorneys' fees provision. We note in this connection that many of the documents were generated in other judicial proceedings and would constitute, at most, informal judicial admissions, which do not conclusively bind landlord (see Matter of Liquidation of Union Indem. Ins. Co. of New York, 89 NY2d 94 [1996]; Baje Realty Corp. v Cutler, 32 AD3d 307 [2006]).

The bold is mine.

Civil Court and Counterclaims and Cross claims

It's a jurisidctional thing

51 W. 86th St. Assoc. LLC v Fontana, 2010 NY Slip Op 51602(U) (App. Term, 1st 2010)

Civil Court should not have adjudicated Degala's cross claim against tenants seeking to recover the rent overcharge and related treble damages. By that cross claim, Degala sought to recover approximately $23,000 in compensatory damages and, after the trebling of those damages, a total of approximately $69,000 in damages. Since Degala asserted a single cross claim beyond the monetary jurisdiction of the Civil Court — $25,000 — the court lacked subject matter jurisdiction over that claim (see 1443 York Ave. Realty Co. v Ronning, 12 Misc 3d 142[A], 2006 NY Slip Op 51401[U] [2006]; see also Herbert v Jerome, 14 Misc 3d 141[A], 2007 NY Slip Op 50351[U] [2007]). We note in this connection that, while Civil Court has subject matter jurisdiction to hear and adjudicate counterclaims without regard to the amount sought (CCA 208[b], 211; see PRAPL 743), it has no similar jurisdiction with respect to cross claims (see 125 Church St. Dev. Co. v Grassfield, 170 Misc 2d 31 [1996]; Scherer & Fisher, Residential Landlord-Tenant Law in NY §§ 7:56, 10:11 [2009 ed]; Siegel, NY Prac § 19 [4th ed]). For similar reasons, Civil Court lacked subject matter jurisdiction over tenants' cross claims sounding in tort against Degala — each of which sought damages in excess of Civil Court's monetary jurisdiction. Therefore, we vacate those portions of the order addressing the merits of Degala's and tenants' respective cross claims, and dismiss said claims without prejudice (see CPLR 205; see generally Bing v Fairfield Presidential Mgt. Corp., 5 Misc 3d 130[A], 2004 NY Slip Op 51297[U] [2004]).

So, in short:  Counterclaims over $25,000.00 (OK); Cross claims over $25,000.00 (Hell no).