No-fault continued

 All or most of the cases listed here are discussed by JT or Roy. Head over and have a read.  In the meantime I'll be doing some other stuff.

Lower Courts

Kraft v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 21413 (Civ. Ct. Queens County, 2011)

Total Equip., LLC v Praetorian Ins. Co., 2011 NY Slip Op 21398 (Nassau County Dis. Ct., First Dist. 2011)

Appellate Term, 1st Department

Dov Phil Anesthesiology Group v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51959(U) (App. Term, 1st Dept. 2011)

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of independent medical examinations (IME) to the assignor and his attorney, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [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 requests or the assignor's failure to attend the IMEs (see Unitrin Advantage Ins. Co., 82 AD3d at 560; Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]).

Socrates Med. Health, P.C. v MVAIC, 2011 NY Slip Op 51961(U) (App. Term, 1st Dept. 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law on its complaint seeking recovery of assigned first-party no-fault benefits, defendant MVAIC failed to raise a triable issue with respect to its lack of coverage defense. Defendant failed to submit any competent proof establishing that plaintiff's assignor was not qualified to receive no-fault benefits (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 did defendant show 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] [App Term, 1st Dept 2010]).

Appellate Term, 2nd Department

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 2011 NY Slip Op 21390 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is uncontroverted that plaintiff filed a certificate of readiness for trial which stated that all pretrial discovery had been completed, despite the fact that its purported owner had not appeared for a scheduled EBT and there was outstanding documentary discovery. While defendant's motion to strike the action from the trial calendar was untimely, under the circumstances presented, including the de minimis nature of the delay in moving to strike the action from the trial calendar, contrary to plaintiff's contention, it cannot be said that the Civil Court's determination to consider the motion rather than deny it as untimely was an improvident exercise of discretion (see CPLR 2004; Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing  laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded. By obtaining discovery of certain documents, such as plaintiff's financial and tax records, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

The record indicates that plaintiff objected to producing items 19 through 21 of defendant's notice to produce, which sought plaintiff's bank statements and canceled checks (item 19), plaintiff's federal and state tax returns including attachments and schedules (item 20), and plaintiff's payroll tax filings (item 21), and to providing the W-2 or 1099 forms sought in interrogatory 11 (c). We find that plaintiff's objection to the foregoing demands lacked merit. Defendant has shown that plaintiff's bank records are material and necessary (see CPLR 3101 [a]), and that special circumstances exist which warrant the disclosure of plaintiff's income tax returns and payroll tax filings (see CPLR 3101 [a]; Ava Acupuncture, P.C. v Autoone Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]). In addition, defendant is entitled to an EBT of McGee following the production of the documents (see CPLR 3101 [a]). However, as the record further reflects that plaintiff's responses to the remainder of defendant's interrogatories and defendant's notice to produce were sufficient, the Civil Court should not have ordered plaintiff to provide additional responses.

In light of the foregoing and the misstatements of material facts contained within plaintiff's certificate of readiness, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant's motion that sought to strike the action from the trial calendar and granting disclosure to the extent indicated above.

R.D.K. Med., P.C. v NY Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 51988(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 for summary judgment dismissing the complaint on the ground that a declaratory judgment, entered on default prior to the commencement of this action, barred plaintiff and its assignor from recovering no-fault benefits for claims arising from a series of automobile incidents which, the Supreme Court concluded, were staged to defraud defendant. Plaintiff cross-moved to amend the caption and for discovery. The Civil Court granted defendant's motion to dismiss the complaint and implicitly denied plaintiff's cross motion as academic.

The claims underlying the present action are based on services provided to a person alleged to have been injured in an automobile incident on February 7, 2003, which is not among the incidents listed in the declaratory judgment as having been staged to defraud. Defendant did not deny that it issued denial of claim forms, in relation to the bills at issue herein, which recite that the underlying incident occurred on February 7, 2003. Consequently, defendant's motion for summary judgment should have been denied as defendant's motion papers failed to establish, prima facie, that this action is barred by virtue of the declaratory judgment.

Accordingly, the order is reversed, defendant's motion for summary judgment dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Civil Court for a determination of plaintiff's cross motion and for all further proceedings.

Ar Med. Art, P.C. v Geico Gen. Ins. Co., 2011 NY Slip Op 51989(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is uncontroverted that defendant was informed of plaintiff's attorney's new office address in May 2008. Defendant did not present evidence of mailing sufficient to create a presumption that plaintiff received the November 2008 amended order since the affidavit of service states that the amended order was mailed to plaintiff's attorney's former office address, and the certified mail receipt and signed return receipt request card defendant submitted to show that the amended order had, in fact, been mailed to, and received by, plaintiff refer to a different certified number than the one listed on the affidavit of service (cf. New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729 [2007]). Inasmuch as plaintiff provided a reasonable explanation for its failure to appear for depositions and provide discovery responses pursuant to the amended order – – in that it alleged that it had never received the amended order – – plaintiff's failure to comply with said order cannot be said to have been willful, contumacious or in bad  faith. Accordingly, the order is reversed and defendant's motion is denied.

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co., 2011 NY Slip Op 51990(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

A review of the record indicates that defendant established its prima facie entitlement to summary judgment by the affidavit of the claims representative of its third-party administrator in which she stated that the subject vehicle was not insured by defendant until three weeks after the July 15, 2002 accident. The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to the motion, plaintiff argued that, within 14 days of the July 11, 2002 purchase of the subject vehicle, the owner directed his insurance broker, allegedly defendant's agent, to have the vehicle added to the owner's existing insurance policy that he had with defendant, which notification was a condition precedent to defendant insuring the vehicle, retroactive to the date of purchase, as a newly acquired automobile under the existing policy. In addition, plaintiff's opposition papers included defendant's own "Auto Policy Declaration" for the vehicle's owner, which lists the insurance broker as "Agency 11868." The foregoing creates an issue of fact as to whether the broker had "a general authority" (Indian Country v Pennsylvania Lumbermens Mut. Ins. Co., 284 AD2d 712, 714-715 [2001]) to represent defendant (see Rendeiro v State-Wide Ins. Co., 8 AD3d 253 [2004]). Consequently, defendant's motion for summary judgment was properly denied.

South Bronx Med., P.C. v Progressive Ins. Co., 2011 NY Slip Op 51993(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. Insofar as is relevant to this appeal, the action concerned a $3,119.44 claim of South Bronx Medical, P.C., which defendant had denied on the ground that there was a lack of medical necessity for the services rendered based upon the finding of a peer review report, and claims, totaling $6,500.12, of Altercare Acupuncture, P.C., which defendant had denied on the ground that improper fees had been charged. A nonjury trial was held and, before defendant had rested, the Civil Court granted an oral motion by plaintiffs South Bronx Medical, P.C. and Altercare Acupuncture, P.C. for a directed verdict in their favor. This appeal by defendant ensued.

An oral ruling at trial, even if memorialized into a writing, is not appealable, either as of right or by permission, unless it is incorporated into an order or judgment (see generally CCA 1702; CPLR 5512; Radford v Sheridan Prods., 181 AD2d 667 [1992]).

 MSSA Corp. v American Tr. Ins. Co., 2011 NY Slip Op 51997(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth the factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the 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]).

Jamaica Med. Supply, Inc. v MVAIC, 2011 NY Slip Op 52008(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) to vacate the default judgment entered against it. Contrary to MVAIC's contention, 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 Omega Diagnostic Imaging, P.C. v MVAIC, 31 Misc 3d 143[A], 2011 NY Slip Op 50867[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). MVAIC's moving papers did not demonstrate the existence of a reasonable excuse for its default and made no attempt to establish that MVAIC possessed a meritorious defense. MVAIC's belated attempt to establish a meritorious defense in its reply papers was not properly before the court and therefore the court was correct to disregard it (Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 355 [2005]).

Queens Brooklyn Med. Rehab, P.C. v Allstate Ins. Co., 2011 NY Slip Op 52010(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's moving 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 motion papers were sufficient to establish that special circumstances exist which warrant disclosure of plaintiff's tax documents at issue (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.

Richmond Radiology, P.C. v American Tr. Ins. Co., 2011 NY Slip Op 52012(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff's sole argument on appeal is that defendant did not establish that plaintiff's assignor had failed to appear for examinations under oath (EUOs). However, a review of the record reveals that the affidavit of defendant's investigator, who was responsible for conducting the EUOs, established that plaintiff's assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [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]; 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]). Since an appearance at an EUO 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 722), the judgment is affirmed.

Van Courtland Med. Care, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 52013(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its motion, defendant submitted, among other things, an affirmed peer review report which set forth the factual basis and medical rationale for the doctor's determination that there was a lack of medical necessity for the services at issue. Defendant's showing that such services 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, the branch of defendant's motion for summary judgment seeking the dismissal of plaintiff's claim in the amount of $1,546.20 should have been granted (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]; 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]).

Trimed Med. Supply, Inc. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 52014(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff's contention that the order denying defendant's cross motion for summary judgment should be affirmed since plaintiff was not in possession of the documents that the peer reviewer relied upon is without merit (see Urban Radiology, P.C., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U]).

Complete Radiology, P.C. v Progressive Ins. Co., 2011 NY Slip Op 52015(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The Civil Court did not improvidently exercise its discretion when it considered defendant's untimely cross motion as plaintiff submitted opposition to the cross motion and failed to demonstrate that it had suffered any prejudice as a result of defendant's delay (see A.M. Med. Servs., P.C. v GEICO Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51029 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).

In papers submitted in support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff's motion for summary judgment, defendant included 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 rendered (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d & 11th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff's motion.

Velen Med. Supply v MVAIC, 2011 NY Slip Op 52016(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

"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 was 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 § 5202 [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 as required by Insurance Law § 5202 (a) (2) (A), 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]; 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]).

Morris Park Chiropractic, P.C. v American Tr. Ins. Co., 2011 NY Slip Op 52017(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its cross motion, defendant submitted, among other things, a sworn independent medical examination (IME) report which set forth the examining chiropractor's determination that there was a lack of medical necessity for the services at issue. The affidavit from plaintiff's chiropractor failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[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 light of the foregoing, and the Civil Court's implicit CPLR 3212 (g) finding that defendant had established that it had timely denied the claims, a finding which plaintiff does not dispute, the branch of defendant's cross motion seeking summary judgment dismissing the claims for dates of service from May 22, 2006 through June 7, 2006 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]).

Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 2011 NY Slip Op 52018(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavit of defendant's claims division employee established that defendant had timely mailed its denial of claim form, which denied the claim on the ground that the assignor had not submitted proper notice of the accident to defendant within 30 days of the accident, 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]). The affidavit further stated that defendant had first learned of the accident when it had received an NF-2 form, thereby demonstrating that defendant first learned of the accident more than 30 days after it 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 receiving the NF-2 form. Despite being 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 Regulation [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.

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 52023(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff's sole contention on appeal is that defendant's motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument is without merit because the mandatory personal injury endorsement, effective April 5, 2002, contains a provision providing for EUOs (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]) and the underlying motor vehicle accident occurred in 2008. Thus, the applicable automobile insurance policy necessarily would have contained such a provision (see 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]). Even if the insurance policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103 [h]; Dover Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]). Consequently, defendant's motion to dismiss the complaint was properly granted (see Dover Acupuncture, P.C., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U]; see also Eagle Chiropractic, P.C., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]).

Park Slope Med. v Praetorian Ins. Co., 2011 NY Slip Op 52062(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In support of its cross motion, defendant submitted an affidavit of the president of Media Referral Inc., the independent medical review service retained by defendant to schedule independent medical examinations (IMEs), which affidavit sufficiently established that the IME scheduling letters had been timely mailed in accordance with her company'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 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 division employee demonstrated that after defendant had received requested verification, the denial of claim forms, which denied plaintiff's claims based
upon 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]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

Top Choice Med., P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 52063(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavit submitted by plaintiff's billing clerk was sufficient to establish that the claim forms which sought to recover the sums of $323.25 and $450.77, and which were 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]). The affidavit also established that these claims were mailed to defendant (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 defendant had failed to pay or deny the claims within the requisite 30-day period. Consequently, plaintiff established its prima facie entitlement to summary judgment on these claims (see Westchester Med. Ctr., 78 AD3d 1168), and the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Inasmuch as defendant merely stated that it had never received the claim forms, defendant failed to raise a triable issue of fact, and plaintiff should have been awarded summary judgment on these two claims (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the claims seeking reimbursement in the sums of $129.28 and $71.49, while plaintiff made a prima facie showing of its entitlement to summary judgment on these claims, the affidavit submitted by defendant in opposition to plaintiff's motion was sufficient to establish that the denial of claim forms 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). Consequently, defendant raised a triable issue of fact (see Zuckerman, 49 NY2d 557; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]), and plaintiff's motion for summary judgment was properly denied with respect to these two claims.

Finally, as to the claims seeking reimbursement in the sums of $394.73, $193.95, $531.64 and $258.56, plaintiff failed to demonstrate that defendant had not either paid or denied the claims within the requisite 30-day period, or that defendant had issued timely denials of claims that were conclusory, vague or without merit as a matter of law. Consequently, plaintiff failed to make a prima facie showing of its entitlement to summary judgment on these four claims (see Insurance Law § 5106 [a]; Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of plaintiff's motion seeking summary judgment upon the claims in the sums of $323.25 and $450.77 are granted.

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

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

While I disagree with the sufficiency of defendant's affidavit attesting to the mailing of the subject denials, I am constrained to concur based upon the Appellate Division's acceptance of a similar affidavit (St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, proof of the mailing of the denials predicated upon a lack of medical necessity constitutes a valid basis to grant defendant's motion for summary judgment. I disagree with the majority's reliance on Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (78 AD3d 1168 [2010]), as there is no evidence that a partial payment was made in this case.

Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 2011 NY Slip Op 52090(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Since the dismissal order did not "specif[y] otherwise" (CPLR 3216 [a]), the dismissal was not "on the merits" or "with prejudice" (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [1999]; see e.g. Gallo v Teplitz Tri-State Recycling, 254 AD2d 253, 254 [1998]) and does not preclude, on res judicata grounds, a new action between the same parties on the same causes of action (e.g. Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]; San Filippo v Adler, 278 AD2d 402 [2000]; see also Mudry v Giannattasio, 8 AD3d 455, 456 [2004]; Morales v New York City Hous. Auth., 302 AD2d 571 [2003]; Mays v Whitfield, 282 AD2d 721 [2001]). Consequently, the Civil Court erred to the extent that it dismissed the instant action because the Queens County action had been dismissed on default.

Defendant also failed to establish the alternate ground upon which it relied in moving for summary judgment, that the action is barred by the statute of limitations (see CPLR 213 [2]). A no-fault cause of action accrues when payment of no-fault benefits becomes "overdue" (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, in the Civil Court, defendant did not offer its denial of claims forms or any other proof of facts regarding the timeliness of the action of January 10, 2008 in relation to the denial of claims or the lapse of the 30-day "pay or deny" rule. Accordingly, defendant failed to meet its burden to establish that the cause of action accrued on any of plaintiff's seven claims more than six years prior to the commencement of this action (e.g. Island ADC, Inc. v Baldassano Architectural Group, 49 AD3d 815, 816 [2008]).

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

The decision and order of this court entered herein on June 4, 2010 (27 Misc 3d 142[A], 2010 NY Slip Op 51000[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

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

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

Although I am in agreement that defendant failed to establish the actual dates that the underlying claims were filed, I would find that plaintiff's papers similarly fail to set forth the dates when the claims were filed.

Appellate Division, Second Department

Lenox Hill Hosp. v Government Employees Ins. Co., 2011 NY Slip Op 08330 (2nd Dept., 2011)

Given the limited nature of the plaintiff's motion for summary judgment, which established the plaintiff's prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8[c]), the defendant's only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660; see generally Stukas v Streiter, 83 AD3d 18, 24). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff's additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form.

 NYU-Hospital for Joint Diseases v American Intl. Group, Inc., 2011 NY Slip Op 07821 (2nd Dept, 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).

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 (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.

 

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