First, the no-fault

Nevermind, first is last.  More like middle. Middle-last.  Ish.

 

Court of Appeals

Appellate Division First Department

Not quite no fault

Matter of Matter of AIU Ins. Co. v Veras, 2012 NY Slip Op 03116 (1st Dept., 2012)

On June 4, 2005, respondent Veras and additional respondent Richard, who was driving a vehicle owned by additional respondent Wynder-Ortiz and insured by State Farm, were involved in an automobile accident. State Farm was not notified and did not learn of the accident from its insured. Nearly four years later, it learned of the accident from Veras, who served it with the judgment entered in his favor in the action he had commenced against Richard and Wynder-Ortiz. Although it completed its internal investigation and prepared letters of disclaimer within two weeks, State Farm waited another 15 days before sending out the letters. It was not error for the court to find this largely unexplained delay unreasonable (see Insurance Law § 3420[d]; First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64, 66 [2003]; Travelers Ins. Co. v Volmar Constr. Co., 300 AD2d 40, 42-43 [2002]; see also George Campbell Painting v National Union Fire Ins. Co. of Pittsburgh, PA, 92 AD3d 104 [2012]).

We reject State Farm's argument that the delay was due to its investigation of other possible grounds for disclaiming. State Farm's witness testified that the investigation was completed in two weeks. In any event, however, "just as we would not permit the insured to delay giving the insurer notice of claim while investigating other possible sources of coverage, [*2]we should not permit the insurer to delay issuing a disclaimer on a known ground while investigating other possible grounds for avoiding liability" (George Campbell Painting, 92 AD3d at 115).

We have considered State Farm's remaining arguments and find them unavailing.

 

Appellate Division Second Department

Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081 (2nd Dept., 2012)

With respect to the first cause of action, in which the plaintiff sought benefits as assignee of Gregoria Young, the plaintiff made a prima facie showing that it had mailed the prescribed statutory billing form to the defendant, and did not receive payment within the requisite 30-day period. In opposition to that showing, however, the defendant insurer submitted proof that it timely issued a denial of this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendant failed to timely pay or deny the claim, the Supreme Court, upon [*2]reargument, should have adhered to its prior determination denying summary judgment to the plaintiff on this cause of action without regard to the merits of the defendant's denial of the claim (see Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 [2d Dept 2011]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]).

With respect to the second cause of action, in which the plaintiff sought benefits as assignee of Loicyra Bulado, also known as Loicyra Almeda, the plaintiff offered proof that it had mailed the prescribed statutory billing form and did not receive payment therefor within 30 days after complying with the defendant's verification requests (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In opposition thereto, the defendant failed to raise a triable issue of fact. Accordingly, upon reargument, the plaintiff was properly awarded summary judgment on the second cause of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

With respect to the third cause of action, in which the plaintiff sought benefits as assignee of Anthony Prunella, the plaintiff submitted proof that it did not receive payment of its claim within 30 days after submission thereof to the defendant. However, in opposition thereto, the defendant established that it timely requested verification of this claim, and that it paid the claim within 30 days after receipt of the requested verification (see 11 NYCRR 65-3.5 [b]; see also New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]). Accordingly, upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of the plaintiff's motion which was for summary judgment on the third cause of action.

Westchester Med. Ctr. v Lancer Ins. Co., 2012 NY Slip Op 02867 (2nd Dept., 2012)

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on its complaint to recover no-fault 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; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136; Mount Sinai Hosp. v Government Empls. Ins. Co., 85 AD3d 1135; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019). In opposition to the motion, however, the defendant established that it had made a timely request for additional verification and that it timely denied the claim within 30 days of receipt of the requested information (see 11 NYCRR 65-3.8[a][1]; 65-3.5[b], 65-3.6[b]; Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848, 849; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513; see generally Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317).

Compare those two Westchester cases with Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50685(U) (App. Term, 9th & 10th Jud. Dists., 2012), Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 2012 NY Slip Op 50589(U) (App. Term, 9th & 10th Jud. Dists., 2012), Westchester Med. Ctr. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50590(U) (App. Term, 9th & 10th Jud. Dists., 2012), Westchester Med. Ctr. v Government Empls. Ins. Co., 34 Misc 3d 155(A) (App. Term, 9th & 10th Jud. Dists., 2012), and Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 129(A) (App. Term, 9th & 10th Jud. Dists. 2011) 

 

Not quite no fault:

Mallory v Allstate Ins. Co., 90 AD3d 621 (2nd Dept., 2011)

The plaintiff commenced this action, inter alia, to recover the proceeds of a fire insurance policy. The defendant asserted several affirmative defenses based on policy exclusions. The plaintiff moved to dismiss the defendant's first, second, and third affirmative defenses on the ground that the defendant was precluded from raising those defenses as a result of the defendant's failure to comply with 11 NYCRR 216.6 (c) in processing the plaintiff's claim. The Supreme Court properly denied the motion. In De Marinis v Tower Ins. Co. of N.Y. (6 AD3d 484, 486-487 [2004]), this Court held that a failure to comply with 11 NYCRR 216.6 (c) does not preclude an insurance company from relying on a policy exclusion to disclaim coverage. We decline the plaintiff's invitation to overrule De Marinis. Accordingly, the plaintiff did not demonstrate that the defenses were without merit as a matter of law (see CPLR 3211 [b]; Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2011]).

Appellate Term, First Department

Preferred Servs. v Country Wide Ins. Co., 2012 NY Slip Op 22098 (App. Term, 1st 2012)

The parties agree that the underlying no-fault first party action was validly settled, but join issue as to the intended amount of the settlement. The facts leading up to the settlement are undisputed and may be briefly stated as follows: Plaintiff, through counsel, drafted and presented a proposed settlement agreement, dated October 21, 2008, which set forth all material terms of the settlement and provided, in paragraph 4, that "This case is not settled unless this stipulation is signed by a representative of defendant and faxed back to [plaintiff's attorney]." Upon receipt of plaintiff's proposal, defense counsel made and initialed several handwritten changes to paragraph 2 of the document — addressing the consequences of a payment default on defendant's part — with the changes designed to extend the time allotted to defendant to comply with the agreement's payment terms and, more importantly here, to reduce defendant's payment obligations in the event it failed to comply. So far as shown, plaintiff voiced no objection to the modifications proposed by defendant or took any other action in the case for a full six months after defense counsel marked up and returned the stipulation, until March 2009, when plaintiff entered judgment in accordance with the original terms of the stipulation favorable to it.

Given the particular facts and circumstances of this case, and since plaintiff itself acknowledges that the parties' correspondence yielded an enforceable settlement agreement, we conclude that plaintiff, through "acquiescent conduct" (Eldor Contr. Corp. v County of Nassau, 272 AD2d 509 [2000]) — including its election to forego any further litigation activity on its no-fault claim — accepted and is bound by the stipulation's revised terms (see Minelli Constr. Corp. v Volmar Constr., Inc., 82 AD3d 720, 722 [2011]). Accordingly, the amount of the consent [*3]judgment issued below must be reduced to the stipulated principal sum of $950, together with the stipulated attorney's fees ($196) and costs ($105) due plaintiff.

We note finally that the judgment at issue "is not a default judgment as that term is used in pleading and practice, and [the motion court's] application of law relating to vacating default judgments was erroneous" (Furgang v Epstein, 106 AD2d 609, 610 [1984]).

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co., 34 Misc 3d 160(A) (App. Term, 1st 2012)

Defendant's motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff's complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff's no-fault claims. In this connection, plaintiff did not refute defendant's showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant's compliance with the workers' compensation fee schedules applicable to the remaining claims.

Rally Chiropractic, P.C. v MVAIC, 34 Misc 3d 153(A) (App. Term, 1st 2012)

The record shows that defendant's failure to appear at the compliance conference resulted from excusable law office failure, and that defense counsel's miscalendaring of the initial scheduled date was neither willful nor part of a pattern of delay (see The Travelers Ins. Co. v Abelow, 14 AD3d 395 [2005]). Considering the strong policy favoring resolution of cases on the merits (see Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [2011]), and in the absence of any argument by plaintiff that the delay caused it prejudice or that defendant lacks a meritorious defense, we exercise our discretion to relieve defendant of its unintended default.

Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 150(A) (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 properly mailed the notices for an examination under oath (EUO) 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], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In opposition, plaintiff failed to raise a triable issue as to the reasonableness of the requests or the assignor's failure to attend the EUOs. Contrary to plaintiff's contention, defendant was not required to demonstrate that the assignor's failure to appear for the EUOs was willful (see Unitrin at 561).

Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co., 34 Misc 3d 148(A) (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, a chiropractor's sworn peer review report, setting forth a factual basis and medical rationale for his stated conclusion that the diagnostic testing giving rise to plaintiff's no-fault claim lacked medical necessity (see generally CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In opposition, plaintiff failed to raise a triable issue of fact. The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff's medical records. Further, plaintiff's affiant did not refer to, let alone rebut, the contrary findings made by defendant's peer reviewer (see CPT Med. Servs. P.C., 18 Misc 3d at 88). Nor is the separate, unsigned medical report submitted by plaintiff properly considered (see CPLR 2106; Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

Excel Imaging, P.C. v All Car Rent A Car, Inc., 34 Misc 3d 143(A) (App. Term, 1st 2012)

We agree with Civil Court that this action seeking recovery of assigned first-party no-fault benefits is not ripe for summary disposition. The record raises triable issues as to whether the notices for examinations under oath were properly mailed by defendant and received by plaintiff (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; cf. Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [2008]).

Mian v Praetorian Ins. Co., 34 Misc 3d 131(A) (App. Term, 1st 2011)

Contrary to Civil Court's conclusion, defendant's motion for summary judgment was timely made within 120 days after the filing of the notice of trial (see CPLR 3212[a]), and served to stay the trial of this action (cf. B. Man Yoon v Fordham Univ., 249 AD2d 176 [1998], lv dismissed 92 NY2d 946 [1998]).

Pomona Med. Diagnostics, P.C. v MVAIC, 34 Misc 3d 131(A) (App. Term, 1st 2011)

The action, seeking recovery of assigned first-party no-fault benefits, arises from a hit-and-run accident in which plaintiff's assignor allegedly was injured. Defendant demonstrated entitlement to summary judgment dismissal of the action, having established that plaintiff's assignor failed to comply with the statutory requirement that notice of the accident be given "to a police, peace, or judicial officer" within 24 hours of the occurrence (Insurance Law § 5208[a][2][A]; see Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [2009]). In opposition, plaintiff failed to raise a triable issue. Plaintiff neither disputed that its assignor failed to report the accident within the requisite 24-hour period nor proffered any reasonable excuse for her failure to do so (see Insurance Law § 5208[a][2][B]).

Heights Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 130(A) (App. Term, 1st 2011)

Defendant demonstrated its entitlement to summary judgment dismissing plaintiff's assigned first-party no-fault claim in the sum of $395.69, it being undisputed on this record that plaintiff failed to respond to defendant's timely and proper verification request made in connection with this claim (see 11 NYCRR 65-3.8[b][3]; St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]). We agree that plaintiff's remaining no-fault claims are not ripe for summary disposition, since there exist triable issues with respect to defendant's verification and fraud defenses.

Appellate Term, Second Department

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50677(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2012) 

The affidavit submitted by plaintiff's billing and collection supervisor in support of plaintiff's motion for summary judgment was insufficient to establish plaintiff's prima facie case (see CPLR 4518 [a]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; 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]). Accordingly, plaintiff's motion for summary judgment was properly denied.

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50578(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2012)

MVAIC contends that there is an issue of fact as to whether plaintiff's assignor's injuries were the result of a motor vehicle accident. MVAIC's sole proof in support of its contention consisted of an uncertified copy of a police report, which merely recorded a hearsay statement. Contrary to MVAIC's contention, this showing was insufficient to demonstrate the existence of a triable issue of fact. Accordingly, the order, insofar as appealed from, is affirmed (cf. Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 [1979]).

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 50678(U) (App. Term, 2nd, 11th & 13th Jud. Dists., 2012)

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking summary judgment upon its claim for $150 for services rendered on September 6, 2007. A judgment was subsequently entered, from which the appeal, in part, is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, there is a triable issue of fact with respect to the timeliness of plaintiff's submission of the claim seeking reimbursement in the sum of $150 for services rendered on September 6, 2007 (see Insurance Department Regulations [11 NYCRR] § 65-1.1; New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822 [2007]). Consequently, neither party was entitled to summary judgment on this claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

With respect to the remaining claims at issue, in support of its motion for summary judgment, defendant submitted, among other things, sworn and affirmed peer review reports, which set forth a factual basis and medical rationale for the opinions that there was a lack of medical necessity for the services set forth in these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [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]). Plaintiff failed to rebut defendant's prima facie showing of a lack of medical necessity.

In light of the foregoing and the Civil Court's finding that defendant timely denied the claims, a finding which plaintiff does not dispute, the branches of defendant's motion seeking summary judgment on the claims for services provided from October 5, 2007 through February 21, 2008 should have been granted.

 New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co., 2012 NY Slip Op 50681(U) (App. Term, 9th & 10th Jud. Dists. 2012) 

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 that the defendant either failed to pay or deny the claim within the requisite 30-day period or 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]). The affidavit by plaintiff's billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (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 the basis for defendant's denials, i.e., that "written proof of claim was provided more than 45 days after the date these services were rendered" was "without merit as a matter of law." Contrary to defendant's contention, it is not the date of defendant's receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff's submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 ["the eligible injured person or that person's assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered"]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).

As plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr., 78 AD3d 1168), the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant failed to do so, plaintiff should have been awarded summary judgment. Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50685(U) (App. Term, 9th & 10th Jud. Dists., 2012) 

In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff's motion for summary judgment on the ground that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

However, the District Court should have denied defendant's cross motion for summary judgment dismissing the complaint as well. Defendant failed to submit any evidence from which the circumstances of the accident could be ascertained, and its proof was therefore insufficient to demonstrate that plaintiff's assignor's alleged intoxicated condition was a proximate cause of the accident (see Insurance Law § 5103 [b] [2]; Insurance Department Regulations [11 NYCRR] § 65-3.14 [b] [1]; Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 [2010]; Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]).

East-West Acupuncture v Safeco Ins. Co. of Ind., 2012 NY Slip Op 22095 (App. Term., 2nd, 11th & 13th Jud. Dists., 2012) 

Defendant denied plaintiff's claims on the ground that plaintiff's assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant's procedures for mailing EUO scheduling letters and 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]). In opposition to defendant's motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant's claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff's remaining contentions lack merit. [*2]

Accordingly, the order conditionally granting defendant's motion for summary judgment is affirmed.

We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.

Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U) (App. Term., 2nd, 11th & 13th Jud. Dists., 2012)

The appearance of a provider at a duly requested 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]). Plaintiff does not claim to have responded in any way to the EUO request. Therefore, plaintiff's objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; 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]).

VE Med. Care, P.C. v Auto One Ins. Co., 2012 NY Slip Op 50571(U) (App. Term., 2nd, 11th & 13th Jud. Dists., 2012)

Flatlands Med., P.C. v Allstate Ins. Co., 2012 NY Slip Op 50582(U) (App. Term., 2nd, 11th & 13th Jud. Dists., 2012)

As defendant's discovery demands were served with defendant's answer and plaintiff did not timely object to the discovery demands, plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 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]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a "staged accident" defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain "whether Plaintiff's assignor received the DME [durable medical equipment] at issue." Defendant's DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see 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]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor "with relevant knowledge of the claim for a deposition . . . with regard to [defendant's] staged accident defense" is denied.

 Complete Radiology, P.C. v Progressive Ins. Co., 2012 NY Slip Op 50583(U) (App. Term., 2nd, 11th & 13th Jud. Dists., 2012)

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; 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, plaintiff's affidavit failed to state unequivocally that defendant's denial of claim forms were either untimely or without merit as a matter of law.

Med-Tech Prods., Inc. v Statewide Ins. Co., 2012 NY Slip Op 50584(U) (App. Term., 2nd, 11th & 13th Jud. Dists., 2012)

We find that defendant's peer review reports, if admissible, are sufficient to demonstrate a lack of medical necessity, which showing plaintiff failed to rebut. However, plaintiff argued before the Civil Court, and again on appeal, that defendant's peer review reports are not in admissible form because they impermissibly bear a stamped facsimile of the doctor's signature. Such an allegation, when properly asserted, ordinarily raises an issue of fact that cannot be resolved solely by an examination of the papers submitted on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; Mani Med., P.C. v Eveready Ins. Co., 25 Misc 3d 132[A], 2008 NY Slip Op 52697[U] [App Term, 2d & 11th Jud Dists 2008]; see also James v Albank, 307 AD2d 1024 [2003]). While the motions for summary judgment could simply be denied due to the existence of such an issue of fact, we are of the opinion, under the circumstances presented, that the better practice would be for the Civil Court to hold a hearing pursuant to CPLR 2218 on the limited issue of the validity of the doctor's signatures appearing on defendant's peer review reports, which will determine whether the peer review reports were in admissible form (Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]) and, thus, whether defendant rebutted plaintiff's prima facie case and demonstrated defendant's entitlement to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 14, 2010 is vacated and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine the admissibility of defendant's peer review reports and for a new determination thereafter of plaintiff's motion and defendant's cross motion.

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50564(U) (App. Term, 9th & 10th Jud. Dists. 2012)

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to comply with a condition precedent to coverage in that he did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff's assignor 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]). Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established 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).

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 720). As plaintiff's remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Alev Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50568(U) (App. Term, 9th & 10th Jud. Dists. 2012)

A review of the information on the New York State Unified Court System E-Courts public Web site, of which we may take judicial notice (see Matter of L & Q Realty Corp. v Assessor, 71 AD3d 1025 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), reveals that, although no judgment has been entered, the complaint was dismissed subsequent to the entry of the order appealed from. In light of that dismissal, this appeal must be dismissed as academic (see Livny v Rotella, 305 AD2d 377 [2003]; Cherico, Cherico & Assoc. v Lamanna, 21 Misc 3d 137[A], 2008 NY Slip Op 52292[U] [App Term, 9th & 10th Jud Dists 2008]).

Neurology Group v New York City Tr. Auth., 2012 NY Slip Op 50563(U) (App. Term, 9th & 10th Jud. Dists. 2012)

Plaintiff commenced this action in 1993 to recover assigned first-party no-fault benefits. [*2]Defendant defaulted in answering, and, more than 12 years later, plaintiff moved for a default judgment in the principal sum of $2,077.55, statutory interest calculated from the action's commencement, and an award of attorney's fees. Defendant cross-moved to dismiss the complaint as abandoned (see CPLR 3215 [c]). The Civil Court denied the cross motion, and granted plaintiff's motion to the extent of awarding plaintiff a default judgment in the principal sum of $2,077.55, but limited the statutory interest to interest accruing from the date of the order and severed the claim for attorney's fees. Plaintiff appeals from so much of the order as limited the interest awarded and severed its claim for attorney's fees, and defendant cross-appeals from so much of the order as denied its cross motion and granted of the branch of plaintiff's motion seeking a default judgment in the principal sum of $2,077.55 plus statutory interest.

A party who fails to initiate a proceeding for the entry of a default judgment within a year of the default must establish a reasonable excuse for the delay and "demonstrate that the complaint is meritorious, failing which the court . . . on motion, must dismiss the complaint as abandoned" (Valentin Avanessov, M.D., P.C. v Progressive Ins. Co., 31 Misc 3d 139[A], 2011 NY Slip Op 50778[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see e.g. Giglio v NTIMP, Inc., 86 AD3d 301, 308 [2011]; Butindaro v Grinberg, 57 AD3d 932 [2008]; Staples v Jeff Hunt Devs., Inc., 56 AD3d 459, 460 [2008]).

Plaintiff submitted "neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim" (Eagle Surgical Supply, Inc. v QBE Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51455[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). The complaint, to which the claim forms at issue were not attached, was signed by an attorney without personal knowledge of the facts of the claims asserted therein (e.g. Solano v Castro, 72 AD3d 932, 933 [2010]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). The only proof in relation to those claims was a "schedule" of the dates and amounts of the bills for the services provided to each assignor, which was insufficient to establish, for purposes of the entry of a default judgment, that the claims were even "potentially" meritorious (Giglio v NTIMP, Inc., 86 AD3d at 308).

We further find that plaintiff failed to establish a reasonable excuse for the delay (e.g. DuBois v Roslyn Natl. Mtge. Corp., 52 AD3d 564, 565 [2008]). Plaintiff's affidavits asserted only that, in 1993, plaintiff's attorney neglected this and other actions, that counsel was discharged, and that "over many months in 1995 and 1996" files were transferred to new counsel, and that new counsel was unable to locate the court file. Yet another counsel was substituted in June of 2003, without any action having been taken on the claim, and there is no explanation for plaintiff's inaction in the six and one-half year period between the end of 1996 and June of 2003. Plaintiff cited the death of the principal of new counsel, in December 2003, and the necessity of new counsel to be assigned to handle the case, but offered no factual representations as to how long the instant case languished before new counsel was empowered to pursue the case. Finally, plaintiff did not reveal when the court file had finally been located, only that it had occurred "recently," and offered no accounting of the time between its discovery and the filing of the motion for entry of a default judgment in March of 2005. To the extent that these representations assert a claim of law office failure or of circumstances beyond plaintiff's control with respect to filing a motion for a default judgment, they are, for the most part, "conclusory and [*3]unsubstantiated" (Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 784 [2008]), and failed to establish sufficient cause for the delay.

Accordingly, the order, insofar as cross-appealed from by defendant, is reversed, plaintiff's motion for a default judgment is denied, and defendant's cross motion to dismiss the complaint is granted. Plaintiff's appeal is dismissed as moot.

Palin Winotaka, L.Ac. v Mvaic, 34 Misc 3d 160(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

Where a plaintiff and its assignor are aware of the identity of the owner of the vehicle in which the assignor was a passenger at the time of the accident, the plaintiff, as assignee, is 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]). In the instant case, we find that plaintiff has demonstrated the existence of an issue of fact as to whether its remedies against the vehicle's [*2]owner have been exhausted. As a result, defendant is not entitled to summary judgment dismissing the complaint.

Medical Assoc., P.C. v Interboro Ins. Co., 34 Misc 3d 154(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

The purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff's assignor was injured as documented in her medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary (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 was not required to demonstrate that the records fell within an exception to the rule against hearsay (id.). Thus, the Civil Court should have granted the branch of defendant's motion seeking summary judgment dismissing the complaint.

MIA Acupuncture, P.C. v Integon Gen. Ins. Corp., 34 Misc 3d 154(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

In support of its cross motion, defendant submitted an affidavit by its claims representative and an affidavit by an employee of a third party responsible for mailing defendant's denial of claim forms and partial payments, which together demonstrated that defendant had timely denied (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 portion of plaintiff's claims at issue based upon the workers' compensation fee schedule. Moreover, defendant demonstrated that it had fully paid [*2]plaintiff for the acupuncture services billed for, in accordance with the workers' compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). 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.

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 34 Misc 3d 155(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

While plaintiff also asserted 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 placed on the report by the doctor who had performed the peer review or at his 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]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, defendant's cross motion for summary judgment dismissing the complaint is 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]).

Perfect Point Acupuncture, P.C. v Clarendon Ins. Co., 34 Misc 3d 155(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

In support of its cross motion, defendant submitted an affidavit by its claims examiner which was sufficient to establish that defendant had timely denied (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 portions of plaintiff's claims at issue on the ground that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the amounts set forth in the workers' compensation fee schedule. That affidavit, however, was sufficient neither to warrant the dismissal of plaintiff's claim for the initial acupuncture visit of April 18, 2006 (see Raz Acupuncture, P.C. v [*2]AIG Indem. Ins. Co., 28 Misc 3d 127[A], 2010 NY Slip Op 51177[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) nor to establish defendant's contention that the amounts that had been charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers' compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the Civil Court properly denied defendant's cross motion for summary judgment dismissing the complaint, and the order, insofar as appealed from, is affirmed.

Quality Psychological Servs., P.C. v MVAIC, 34 Misc 3d 156(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

MVAIC's moving papers made a prima facie showing that MVAIC had not received the claim at issue in the instant case and that, as a result, its time to pay or deny the claim had never begun to run (Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]). In opposition, plaintiff failed to, among other things, establish that it had submitted the claim form to MVAIC (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; [*2]Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In light of the foregoing, the order is affirmed.

MSSA Corp. v Praetorian Ins. Co., 34 Misc 3d 156(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

In this action by a provider to recover assigned first-party no-fault benefits, defendant's motion for summary judgment dismissing the complaint was properly denied, as defendant failed to demonstrate that the claim had been timely denied. Defendant's denial of claim form was not issued within 30 days of receipt of plaintiff's claim form, and the affidavit of defendant's claims examiner failed to demonstrate that defendant had tolled its time to pay or deny the claim by timely mailing its request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.8 [a] [1]) 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 a result, defendant failed to demonstrate that its defense of lack of medical necessity was not precluded (see e.g. Delta Diagnostic Radiology, P.C. v [*2]Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]).

Rally Chiropractic, P.C. v Nationwide Mut. Ins. Co., 34 Misc 3d 157(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

The proof submitted by both defendant and plaintiff established that plaintiff's assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not "regularly reside[]" with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff's claim (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]) on this ground. In any [*2]event, even if defendant's denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Moreover, it is undisputed that plaintiff submitted the claim at issue to defendant more than 45 days after the dates the services were rendered (Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff's contention, defendant's timely denial of claim form adequately advised plaintiff of the basis for the denials. The denial of claim form further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Tongren Acupuncturist, P.C. v MVAIC, 34 Misc 3d 157(A) (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 [*2](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 (see e.g. Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 [2004]), the judgment is reversed, the order entered February 9, 2010 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Complete Radiology, P.C. v GEICO Ins. Co., 34 Misc 3d 157(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see 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 affirmed letter of medical necessity submitted by plaintiff's assignor's treating physician was sufficient to demonstrate that there is a triable issue 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]; cf. 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]).

Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 158(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

In the July 15, 2010 order, the Civil Court found, among other things, that, with respect to the first through third, sixth, seventh, ninth and tenth causes of action, plaintiff had established its prima facie entitlement to judgment as a matter of law, that defendant had established timely and proper denial of claim forms and that the sole issue for trial was the medical necessity of the services rendered to plaintiff's assignor. In support of the branches of its cross motion seeking to dismiss these causes of action, defendant submitted, among other things, affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor's determinations that there was a lack of medical necessity for the services rendered. As defendant's showing that the services were not medically necessary was unrebutted by plaintiff and plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment on these causes of action, the branches of defendant's cross motion seeking summary judgment dismissing the first through third, sixth, seventh, ninth and tenth causes of action 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]).

Contrary to the Civil Court's determination, we find that defendant's cross motion demonstrated its entitlement to summary judgment upon the eighth cause of action. The record establishes that defendant 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]) the denial of claim forms pertaining to the claims at issue in the eighth cause of action and that these claims were denied on the ground of lack of medical necessity based upon affirmed IME reports. As plaintiff failed to rebut defendant's prima facie showing, defendant was entitled to summary judgment dismissing plaintiff's eighth 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]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

With respect to the portion of the fifth cause of action seeking to recover upon two claim forms, each in the sum of $309.42, we find that plaintiff established its prima facie case (see [*3]Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Since defendant did not address these two $309.42 claim forms in its motion papers submitted to the Civil Court, defendant failed to rebut plaintiff's prima facie showing, and the court properly awarded plaintiff summary judgment upon these claim forms.

With respect to the portion of the fifth cause of action which seeks to recover upon the $608.40 claim form for services rendered to the assignor from June 1, 2006 through June 22, 2006, the affidavit of plaintiff's billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff's claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff's motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant's examiner contained a detailed recitation of defendant's office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff. Plaintiff did not oppose this branch of defendant's cross motion or submit further papers in support of its motion for summary judgment upon this claim form. Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the complaint as to the $608.40 claim form is granted.

Defendant's contentions with respect to the fourth cause of action lack merit, and we do not disturb the Civil Court's determination that defendant was not entitled to summary judgment dismissing this cause of action.

Accordingly, the judgment is affirmed and the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing plaintiff's first through third and sixth through tenth causes of action and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted.

Lexington Acupuncture, P.C. v General Assur. Co., 2012 NY Slip Op 22047 (App. Term, 2nd, 11th &13th Jud. Dists. 2012) (Note the concurring opinion)

It is well settled that a party is entitled to full disclosure of all matter that is "material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). What is "material and necessary" is left to the sound discretion of the court and includes "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Young v Tierney, 271 AD2d 603 [2000]). Where, as here, an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense (see e.g. Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud [*2]Dists 2006]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). A Mallela defense is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial (see Midwood Acupuncture, P.C. v State Farm Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]).

Here, although defendant never moved to amend its answer to assert a defense based on fraudulent incorporation, it asserted sufficient allegations of fraudulent incorporation. Defendant cited to several cases against a different insurer involving corporations purportedly owned by Ms. Anikeyeva. In some of those cases, the defendant insurer had submitted an affidavit from its investigator which was sufficient to entitle the insurer to discovery on the issue of fraudulent incorporation (see e.g. Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90). Defendant included, as part of its motion papers, copies of the investigator affidavits from those cases, which set forth Ms. Anikeyeva's close connection with individuals and corporations charged with insurance fraud. Since defendant presented adequate allegations of fraudulent incorporation, the Civil Court did not abuse its discretion in granting those branches of defendant's motion seeking to compel disclosure on that issue and in denying plaintiff's cross motion for a protective order and the imposition of sanctions (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U]).

Astoria Wellness Med., P.C. v Autoone Ins. Co., 34 Misc 3d 153(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, by an amended cross motion, defendant cross-moved for, among other things, leave to amend its answer to assert the additional affirmative defense to the effect that plaintiff was not entitled to receive no-fault benefits because it failed to comply with applicable state or local licensing laws. Defendant's cross motion also sought an order, pursuant to CPLR 3104, directing plaintiff "to disclose management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records, or in the alternative, granting . . . leave to serve supplemental demands for same." By order dated November 18, 2009, the Civil Court denied plaintiff's motion. By order entered December 17, 2009, the Civil Court granted the branch of defendant's amended cross motion seeking to amend the answer and directed plaintiff to "provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer."

Leave to amend pleadings should be freely granted absent prejudice or surprise resulting from the delay (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220, 225 [2008]; see also Worthen-Caldwell v Special Touch Home Care Servs., Inc., 78 AD3d 822 [2010]). As plaintiff was neither prejudiced nor surprised by defendant's delay in asserting the foregoing affirmative [*2]defense, the Civil Court did not improvidently exercise its discretion in granting the branch of defendant's amended cross motion seeking leave to amend its answer (see e.g. New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52217[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

A review of the record indicates that defendant's initial discovery demands had not requested any "management agreements, lease agreements, corporate records, tax returns and other tax records, and bank records," and were merely comprised of a "Demand for Disclosure of Witness(es)," a "Notice Pursuant to CPLR 3101" for, among other things, the identities of expert witnesses intended to be called at trial, and a "Declination of Service by Electronic Means." Since defendant had not served any supplemental discovery demands upon plaintiff prior to making its cross motion, and did not submit any proposed supplemental discovery demands with its cross motion, so much of the order as states that "the plaintiff shall provide verified responses to defendant's discovery demands within 60 days after defendant serves its amended answer" is stricken.

We note that, contrary to plaintiff's contention, there is no requirement that a CPLR 321 change or withdrawal of attorney form be notarized. We further note that nothing in our decision herein is intended to preclude defendant from serving supplemental discovery demands.

Medical Polis, P.C. v Progressive Specialty Ins. Co., 34 Misc 3d 153(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012) (Note the concurring opinion)

It is well settled that a party is entitled to full disclosure of all matter that is "material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). What is "material and necessary" is left to the sound discretion of the court and includes "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Young v Tierney, 271 AD2d 603 [2000]). Where, as here, an insurer requests discovery concerning a Mallela defense, the request should be granted as long as there are sufficient allegations supporting such a defense (see e.g. Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d & 11th Jud Dists 2006]). A Mallela defense is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial (see Midwood Acupuncture, P.C. v State Farm [*2]Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]).

Here, although defendant never moved to amend its answer to assert a defense based on fraudulent incorporation, it did submit an affidavit containing sufficient allegations of fraudulent incorporation. Defendant included an affidavit from its Senior Special Investigator, who set forth, in detail, plaintiff's close connection with another medical provider whose owner was convicted of, among other things, fraud and falsifying business records. Since defendant made adequate allegations of fraudulent incorporation, the Civil Court did not abuse its discretion in granting those branches of defendant's motion seeking to compel disclosure on that issue, and in denying plaintiff's cross motion for a protective order (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U]).

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 34 Misc 3d 153(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012) (Note the dissent)

In support of its motion, defendant submitted an affidavit by its biomechanical engineer, which affidavit was in admissible form, as it was accompanied by a certificate of conformity pursuant to Real Property Law § 299-a, and was therefore in compliance with CPLR 2309 (c) (cf. Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51629[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The engineer concluded that the injuries of plaintiff's assignors could not have arisen out of the accident in question, after he reviewed, among other things, the photographs of the vehicle involved in the accident, the medical records of plaintiff and other providers regarding their treatment of the assignors, and copies of the transcripts of plaintiff's assignors' testimony at their examinations under oath, all of which defendant attached to its moving papers.

As defendant established its entitlement to judgment as a matter of law by submitting proof in admissible form showing the lack of a causal connection between the accident and the injuries claimed by plaintiff's assignors, the burden shifted to plaintiff to rebut defendant's showing. Plaintiff, in its opposition papers, failed to do so. Defendant's motion for summary judgment dismissing the complaint should therefore have been granted.

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

Golia, J.P., and Weston, J., concur. [*2]

Rios, J., dissents in a separate memorandum.

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

I respectfully dissent and vote to affirm the order.

Contrary to the finding of the majority, the affidavit of defendant's biomechanical engineer was insufficient to establish as a matter of law that the injuries claimed by plaintiff's assignors could not have arisen from the accident. Instead, the affidavit merely demonstrated a "founded belief" that the alleged injuries did not arise out of the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, defendant's motion for summary judgment dismissing the complaint was properly denied.

Quality Psychological Servs., P.C. v Clarendon Ins. Co., 34 Misc 3d 153(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

As the affidavit of plaintiff's psychologist submitted in opposition to defendant's motion was sufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services at issue, the order, insofar as appealed from, is affirmed (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]).

Superior Oxygen & Ortho Supplies, Ltd. v Auto One Ins. Co., 34 Misc 3d 154(A)  (App. Term, 2nd, 11th &13th Jud. Dists. 2012) (Note the dissent)

Plaintiff established its prima facie entitlement to summary judgment by proof of the submission to defendant of the claim forms, proof of the fact and the amount of the loss sustained, and proof that defendant had failed to pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, the burden shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff's motion and in support of its own cross motion for summary judgment, defendant failed to establish that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that the 30-day claim determination period (see Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising the failure of plaintiff's assignors to appear at the EUOs as a defense (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive [*2]Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, the order is reversed, plaintiff's motion for summary judgment is granted, defendant's cross motion for summary judgment dismissing the complaint is denied and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012) (Note the concurring opinion)

The 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. At the nonjury trial, the Civil Court essentially 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 as to her opinion as to the medical necessity of the supplies at issue in this case, which testimony would be limited to the basis for the denial as set forth in the original peer review report (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]; 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]; see also 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]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the limited issue.

Weston and Rios, JJ., concur.

Golia, J.P., concurs in a separate memorandum.

Golia, J.P., concurs in the following memorandum:

While I concur in the result, I would like to briefly clarify two issues about which I am concerned.

First, I am concerned that the majority's finding that the testimony of defendant's expert [*2]medical witness "be limited to the basis for the denial as set forth in the original peer review report" risks interpretations which could impose unduly restrictive limitations upon the expert witness's ability to offer testimony regarding issues properly before the trier of fact. "The admissibility and scope of expert testimony is a determination within the discretion of the trial court" (Christoforatos v City of New York, 90 AD3d 970 [2011]). A defendant insurer in a no-fault case is limited to those defenses properly asserted within the time limits imposed by the rules of New York's no-fault scheme. The facts at issue in a particular trial may also be limited by a judge's ruling pursuant to CPLR 3212, as was done here. However, medical experts at trial should be able to bring their expertise to bear in a manner which amounts to more than simply regurgitating those facts included in the original peer review report.

I do not believe the majority intends this directive to result in the undue restriction of expert testimony. However, in the interest of avoiding conflicting interpretations of this opinion, I choose to briefly address this issue. In short, I do not believe that this opinion should be read to prevent expert witnesses from expressing their opinions as to the content and conclusions contained in a properly admitted peer review report written by a doctor other than the testifying doctor. Additionally, when testifying in regard to such peer review reports, expert witnesses should be permitted to form and express their own expert opinions based upon the medical facts contained in the record, including a properly admitted peer review report.

An expert is permitted to testify as to his or her opinion based upon facts properly in evidence and that expert's particular area of expertise, so long as such testimony does not unduly trod upon the province of the trier of fact as the ultimate arbiter of the question in controversy (see generally People v Cronin, 60 NY2d 430 [*3]
[1983]). For example, an expert should not be prohibited from answering relevant, probative hypothetical questions, a common occurrence at trial.

Second, while not directly addressed in the majority opinion, I wish to briefly discuss the implications of the Civil Court's ruling pursuant to CPLR 3212 (g) whereby the court held that the issue of medical necessity would be the sole issue of fact to be determined at trial. A claim that billed-for services were not medically necessary is a defense available to a defendant insurer. However, in the present matter, both defendant and plaintiff presented arguments regarding the issue of medical necessity in reciprocal motions for summary judgment. In denying both motions and finding that a determination as to medical necessity required a trial, the Civil Court established that questions existed as to the medical necessity of the billed-for services, as well as defendant's contrary claim.

Medical necessity is presumed upon the timely submission of a no-fault claim (see All County Open MRI & Diagn. Radiology P.C. v. Travelers Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50318[U] [App Term, 9th & 10th Jud Dists 2006]). Thus, ordinarily it falls to the defense to establish that the billed-for services were not medically necessary. Here, the motion court denied both plaintiff's and defendant's motions for summary judgment and set the only trial issue as to medical necessity. Thus, the presumption of medical necessity no longer exists in the present matter, and, as such, the rationale for burdening the defense with the argument no longer exists. As the law of this case has established that questions of medical necessity exist, it is only reasonable that plaintiff establish at trial that the billed-for services were medically necessary.

To the extent that I may have previously held otherwise, I no longer follow those tenets.

Raz Acupuncture, P.C. v Praetorian Ins. Co., 34 Misc 3d 152(A)  (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

Defendant, however, did not proffer sufficient evidence to warrant the dismissal of plaintiff's claim for the initial consultation on August 29, 2007 (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]; 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]), nor did it establish as a matter of law that the amounts sought by plaintiff for acupuncture treatment rendered from August 30, 2007 through October 25, 2007 were in excess of the amounts permitted by the workers' compensation fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; see also Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51175[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied the branch of defendant's cross motion seeking the dismissal of these claims.

In support of its cross motion, defendant submitted a sworn report of the licensed acupuncurist/chiropractor who had conducted an independent medical examination of plaintiff's assignor on October 16, 2007. The report set forth a factual basis and medical rationale for the examiner's determination that there was no need for further acupuncture treatment. Since defendant's showing that the services rendered from October 30, 2007 through January 30, 2008 were not medically necessary was unrebutted by plaintiff, defendant was entitled to summary judgment dismissing plaintiff's claims for these dates of service (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, the order of the Civil Court is modified by striking the provision thereof finding that plaintiff established a prima facie case and by providing that the branch of defendant's cross motion for summary judgment seeking to dismiss plaintiff's claims for dates of service from October 30, 2007 through January 30, 2008 is granted.

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149(A)  (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

After plaintiff had commenced this action to recover assigned first-party no-fault benefits for medical services provided to its assignors, defendant commenced a declaratory judgment action in Supreme Court, Queens County, against various medical providers and their assignors, including plaintiff and its assignors herein. By order dated October 26, 2007, the Supreme Court granted defendant's motion for entry of a declaratory judgment, on default, declaring that defendant had "no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage" to the parties named as defendants in the declaratory judgment action. In December 2007, plaintiff herein moved to compel certain discovery from defendant or, in the alternative, to strike defendant's answer. Defendant cross-moved for summary judgment [*2]dismissing the complaint, contending that this action was barred by virtue of the October 26, 2007 order of the Supreme Court. The Civil Court denied plaintiff's motion and granted defendant's cross motion.

Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff's contention, the Supreme Court's order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Furthermore, based on the Supreme Court's order, plaintiff's motion to compel discovery or, in the alternative, strike defendant's answer was rendered moot, and, thus, properly denied. Plaintiff's remaining contentions lack merit.

Ava Acupuncture, P.C. v GEICO Gen. Ins. Co., 34 Misc 3d 149(A)  (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

Plaintiff does not deny that the underlying insurance contract contains a deductible or that defendant's timely NF-10 denial of claim forms asserted the existence of the deductible (see e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U] [App Term, 2d & 11th Jud Dists 2005]). Although there was a lengthy period of time between the joinder of issue and the making of the motion to amend, lateness alone is not a barrier to amendment absent a showing of "significant" prejudice to the opposing party (Rodriguez v Panjo, 81 AD3d 805, 806 [2011]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [*2][1983]), or that the proposed defenses are "patently devoid of merit" or "palpably insufficient to state a . . . defense" (Lucido v Mancuso, 49 AD3d 220, 229 [2008]; see also Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51570[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion's merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant's claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion's denial is not established (e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U]).

Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2011]; see Ops. Gen. Counsel NY Ins. Dept. No 08-04-16 [April 2008] [assignee-provider "may pursue all of the remedies that would have been available to the patient"]). Upon the record before us, we find that the Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer to interpose the aforementioned affirmative defenses (CPLR 3025 [a]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Second Med., P.C. v GEICO, 34 Misc 3d 149(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

To establish its prima facie entitlement to summary judgment, a no-fault provider must show, among other things, proof of the fact and the amount of the loss sustained
(see Insurance Law § 5106 [a]; 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]). 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, [*2]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 sought to lay the requisite foundation for the admission of its claim forms by demonstrating, through an affidavit executed by the owner of its third-party billing company, that plaintiff's medical records had been incorporated into its billing company's records and that its billing company had relied upon the medical records in the regular course of its business (see Matter of Carothers, 79 AD3d 864; see also People v DiSalvo, 284 AD2d 547 [2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727 [1986]). We find that plaintiff failed to make the necessary showing that its billing company had incorporated plaintiff's medical records into its own and had relied upon them (see Viviane Etienne Med. Care, P.C., 31 Misc 3d 21).

Plaintiff also submitted an affidavit of its owner, which did lay the requisite foundation for the admission of certain documents, such as "symptom checklists," which were also submitted to the court. However, while the claim forms in this case bill for specific procedures, the documents submitted by the owner do not reflect that those particular procedures had been performed. Nor is there anything in the record showing that the third-party biller could have established that the specific procedures billed for were reflected in those documents.

Thus, neither the claim forms nor the other documents submitted by plaintiff proved that the billed-for treatment had actually been rendered. Accordingly, since plaintiff failed to submit proof of the fact and the amount of the loss sustained, the order, insofar as appealed from, is reversed and plaintiff's motion for summary judgment is denied.

Eastern Star Acupuncture, P.C. v Allstate Ins. Co., 2012 NY Slip Op 22029 (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

This action by providers to recover assigned first-party no-fault benefits was "marked off" the trial calendar on September 25, 2009. On May 26, 2010, plaintiffs moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In a supporting affirmation, plaintiffs' counsel stated that plaintiffs were "prepared to proceed to trial, and . . . to present proof . . . that payment of no-fault benefits [was] overdue." In opposition, defense counsel argued that prosecution of the claims of plaintiff Painless Medical, P.C. could not be pursued because Dr. Ronald Collins, the sole shareholder, officer and director of Painless Medical, P.C., had passed away on September 15, 2008, and Anna Val, Esq., who had been appointed as the administrator of the estate of Dr. Collins on September 9, 2009, had no authority over Painless Medical, P.C. Defendant argued, among other [*2]things, that Ms. Val lacked the capacity to administer or become a shareholder of Painless Medical, P.C. because she did not possess a license to practice medicine, which is a requirement of Business Corporation Law §§ 1507 and 1508, and, therefore, she was not entitled to pursue pending litigation or collect settlements and judgments involving this provider.

"A corporation can only act through its officers and agents" (14A NY Jur 2d, Business Relationships § 616; see also 14A NY Jur 2d, Business Relationships § 603). Upon Dr. Collins' death, Painless Medical, P.C. continued to exist (see Business Corporation Law § 1510), but was powerless to continue prosecuting its claims in this action until there was someone with authority who could authorize proceeding with this litigation (see Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). After her appointment by the Surrogate's Court to act as the administrator of Dr. Collins' estate, Ms. Val had the authority and power to, among other things, recover property belonging to Dr. Collins' estate, prosecute an action to recover assets belonging to the estate, and settle claims for money owed to the estate (see e.g. 38 NY Jur 2d, Decedents' Estates §§ 1442, 1513, 1521 and 1532). It was not necessary that she be a member of the profession in which the professional corporation is authorized to practice, because Ms. Val was not acting in a professional capacity, i.e., as a director or officer of the professional corporation, but rather as an administrator, whose role is to preserve the value of, and prevent loss to, the estate.

The motion to restore was made within one year after the action had been "marked off" the trial calendar, and counsel's supporting affirmation satisfactorily explained the reason that the action was "marked off" and showed a readiness to proceed to trial (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.14 [c]). Accordingly, the order is affirmed.

A.B. Med. Servs., PLLC v Travelers Indem. Co., 34 Misc 3d 150(A) (App. Term, 9th & 10th Jud. Dists. 2012)

In this action by three providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on various substantive grounds and plaintiffs cross-moved for partial summary judgment. The District Court did not address the merits of the motions. Rather, it sua sponte, among other things, dismissed plaintiffs' complaint without prejudice to plaintiffs filing an amended complaint within 30 days of the order.

There is no appeal as of right from an order entered sua sponte (see Sholes v Meagher, 100 NY2d 333 [2003]; Northside Studios v Treccagnoli, 262 AD2d 469 [1999]; Village of Savona v Soles, 84 AD2d 683 [1981]), and leave to appeal has not been granted. We note, [*2]however, that plaintiffs could have properly moved to vacate the order and appealed as of right had that motion been denied (see UDCA 1702 [a] [3]; CPLR 222 Sholes, 100 NY2d at 335; Village of Savona, 84 AD2d at 684), which they failed to do. Accordingly, plaintiffs' appeal is dismissed.

First Help Acupuncture, P.C. v General Assur. Co., 34 Misc 3d 144(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

"An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case" (Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., 25 Misc 3d 130[A], 2009 NY Slip Op 52114[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Uniform Rules for the New York City Civil Court [22 NYCRR] § 208.14 [c]; Leitner v Goldstein, 31 Misc 3d 133[A], 2011 NY Slip Op 50612[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Sawak v Brown, 20 Misc 3d 136[A], 2008 NY Slip Op 51536[U] [App Term, 2d & 11th Jud Dists 2008]; Ambrose v Rudzewick, 19 Misc 3d 143[A], 2008 NY Slip Op 51100[U] [App Term, 2d & 11th Jud Dists 2008]; LoFredo v CMC Occupational Health Servs., 189 Misc 2d 781 [App Term, 2d & 11th Jud Dists 2001]). As plaintiff failed to make the requisite showing, the order, insofar as appealed from, is affirmed.

Intuitive Chiropractic, P.C. v MVAIC, 34 Misc 3d 144(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

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 a household affidavit or 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]), the judgment is affirmed.

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

Defendant established that it had timely denied the claim for $498 (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]) on the ground of lack of medical necessity. In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. Contrary to the determination of the Civil Court, 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]). 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]; [*2]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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant's peer reviewer, and that these documents were needed in order to oppose defendant's motion (see CPLR 3212 [f]), plaintiff "failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact" (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]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition, plaintiff submitted only an affirmation from its counsel and failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 should have been granted.

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

The affidavit executed by defendant's litigation representative was sufficient to establish that defendant's NF-10 forms, which denied plaintiff's claims on the ground of lack of medical necessity, were 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]). However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; 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]). Although one of the peer review reports contained a notary public's stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see 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). Moreover, even if the documents submitted by defendant's chiropractor had been in proper form, the affidavit of plaintiff's osteopath submitted in opposition to defendant's motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.

As defendant failed to make a prima facie showing of its entitlement to judgment as a [*2]matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is affirmed.

A.B. Med. Servs., PLLC v National Grange Mut. Ins. Co., 34 Misc 3d 145(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2012)

On appeal, plaintiff's sole argument is that it is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to the revocation of its owner's license. We agree (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Thus, both plaintiff's motion for summary judgment should not have been denied and defendant's cross motion for summary judgment dismissing the complaint should not have been granted on that ground.

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

B.Y., M.D., P.C. v Global Liberty Ins. Co. of N.Y., 34 Misc 3d 146(A) (App. Term, 9th & 10th Jud. Dists. 2012)

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs' claims based upon the assignor's eligibility for workers' compensation benefits, and that there was an issue as to whether plaintiffs' assignor had been injured during the course of employment, thereby requiring that the matter be submitted to the Workers' Compensation Board (Board). The District Court denied the motion and cross motion without prejudice and held the action in abeyance pending a determination by the Board. The court found that a question of fact exists as to whether the accident occurred during the course of the assignor's employment, which issue must be resolved by the Board. Plaintiffs appeal from so much of the order as denied without [*2]prejudice their motion for summary judgment and held the action in abeyance.

Defendant's proof was sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved by the Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiffs' motion should not have been denied without prejudice. Instead, the District Court should determine plaintiffs' motion after final Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties' rights under the Workers' Compensation Law.

A.B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141(A) (App. Term, 9th & 10th Jud. Dists. 2012)

"A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion" (Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR 2221 [e]; Keyland Mech. Corp. v 529 Empire Realty Corp., 48 AD3d 755 [2008]). Such a motion " is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]). The District Court granted leave to renew based on plaintiffs' purported "new facts." However, the "new facts" offered in support of renewal were in the form of a letter from plaintiffs' counsel to the Board, requesting that the Board schedule a hearing pursuant to the District Court's July 21, 2008 order, and a letter from the Board's General Counsel to plaintiffs' counsel which was not responsive to plaintiffs' counsel's letter, did not refer to the instant case, and, in fact, referred to a different letter from plaintiffs' counsel. There was nothing in plaintiffs' submissions to indicate any personal knowledge that a proper application for workers' compensation benefits had been made by plaintiffs' assignor, or that the Board had actually rejected such application. Accordingly, leave to renew should have been denied, and the District Court improvidently exercised its discretion in granting plaintiffs' motion.

We note that, contrary to the conclusion of the District Court, it is the Board which has primary jurisdiction to resolve the question of coverage (see Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Woodward Med. Rehabilitation, P.C. v State Farm Fire & Cas. Co., 34 Misc 3d 138(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, defendant, by notice of motion dated December 28, 2007, moved for summary judgment dismissing the complaint. The return date of the motion was adjourned several times and ultimately scheduled for June 12, 2009. In the interim, by notice of motion dated July 25, 2008, defendant had made an amended motion for summary judgment, returnable January 9, 2009, which was adjourned to be heard on June 12, 2009. Nowhere in the papers in support of defendant's amended motion did defendant set forth why it concluded that the amended motion was necessary, nor did defendant seek to withdraw the original motion. On the return date, the Civil Court denied both the original motion as defective and the amended motion as having been made "more than one year after the original motion without leave of court." Defendant's sole argument on appeal is [*2]that the Civil Court improperly refused to consider its amended motion.

"A party who concludes that a motion is defective or insufficient should apply for and obtain leave to withdraw or amend it" (60 CJS, Motions and Orders § 4 see generally Hoover v Rochester Print. Co., 2 App Div 11 [1896]). As the record in this case does not indicate that defendant either sought leave to withdraw the original motion or to amend it, and as defendant did not set forth any reason why an amended motion was necessary, the Civil Court did not improvidently exercise its discretion in refusing to entertain the amended motion. Accordingly the order, insofar as appealed from, is affirmed.

ARCO Med. N.Y., P.C. v Lancer Ins. Co., 34 Misc 3d 134(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Since defendant raises no issue on appeal with regard to plaintiff's establishment of a prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). [*2]

Defendant demonstrated that it had properly requested that plaintiff's principals appear for an EUO, that they failed to appear for scheduled EUOs and that defendant issued a denial of claim form on April 11, 2007, within 30 days after their failure to appear (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No. 2009-2201 K C], decided herewith). However, the claims at issue in this case were submitted to defendant after it had issued that denial of claim form, and, thus, the April 11, 2007 denial is ineffective as to these claims (cf. Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant attached denial of claim forms to its opposition to plaintiff's cross motion which purport to address the claims at issue here, and which appear timely on their face, but defendant failed to submit evidence that it had mailed them. Since defendant failed to prove that it had timely denied the claims at issue, it is precluded from asserting most defenses, including 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], lv denied 13 NY3d 714 [2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011], lv denied 17 NY3d 705 [2011]). Furthermore, defendant is not entitled to the depositions of Dr. Mayard and Dr. Berardi, as it only sought the depositions in order to obtain information regarding "treatment" and plaintiff's "billing practices," defenses which we find to be precluded (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, defendant's motion was properly denied and plaintiff's cross motion for summary judgment was properly granted.

There were two other ARCOs that had similar holdings: 2011 NY Slip Op 52382(U) and 2011 NY Slip Op 52383(U).

Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Plaintiffs commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated October 9, 2009, plaintiffs agreed to serve defendant with verified responses to its written discovery demands within 60 days of the date of the order or be precluded from offering evidence at trial. In January 2010, defendant moved for summary judgment dismissing the complaint on the ground that plaintiffs had failed to timely provide it with the so-ordered discovery responses; that, as a consequence, plaintiffs were precluded from offering any evidence at trial; and, therefore, that plaintiffs could not establish their prima facie case. In opposition, plaintiffs offered no excuse for their failure to comply with the so-ordered stipulation; rather, plaintiffs stated that they had served defendant with their responses in June [*2]2010. The Civil Court denied defendant's motion finding that "there exists reasonable excuse for the delay in responding to defendant's discovery demands i.e. change of attorneys handling this matter and the plaintiff [sic] should not be prejudiced due to changes in counsel."

A conditional so-ordered stipulation becomes absolute upon a party's failure to sufficiently and timely 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]; Siltan v City of New York, 300 AD2d 298 [2002]). To avoid the adverse impact of the conditional so-ordered stipulation, plaintiffs were required to demonstrate a reasonable excuse for their failure to timely comply with the stipulation and the existence of a meritorious cause of action (see e.g. Panagiotou, 66 AD3d at 980; State Farm Mut. Auto. Ins. Co., 43 AD3d at 908). We find that plaintiffs failed to meet this burden. Although the Civil Court found that defendant's change of attorney constituted a valid excuse, plaintiffs' opposing affirmation made no reference to any change of attorney nor indicated how any such change of attorney excused its compliance. Accordingly, as the order of preclusion prevents plaintiffs from establishing their prima facie case, defendant's motion for summary judgment dismissing the complaint is granted.

MIA Acupuncture, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 21480 (App. Term, 2nd, 11th &13th Jud. Dists. 2011) (note the dissent) (this was originally reported as 2011 NY Slip Op 52418(U))

A provider is required to submit proof of claim to the insurer "in no event later than 45 days after the date services are rendered" unless the insurer has been provided with "clear and reasonable justification for the failure to comply with such time limitation" (Insurance Department Regulations [11 NYCRR] § 65-1.1). Plaintiff's billing manager alleged that he had [*2]personally mailed a claim form (which billed for acupuncture services rendered from May 23, 2007 through May 31, 2007) on June 21, 2007. Defendant denied payment for the portion of this claim which billed for treatment on May 23, 2007 and May 24, 2007, based on plaintiff's submission of the claim form beyond the 45-day period. Defendant's claims examiner averred that the claim form had not been received by defendant until July 13, 2007 and annexed the envelope, bearing a July 10, 2007 postmark, which purportedly contained the claim form in question. As there is an issue of fact regarding the date that this claim form was mailed, defendant was not entitled to summary judgment dismissing the portion of the claim which billed for treatment on May 23, 2007 and May 24, 2007.

With respect to the claims for acupuncture services rendered from May 31, 2007 through August 27, 2007, the affidavit of defendant's claims examiner stated that these claims underwent a "fee schedule review" resulting in a reduction of the amount due therefor. This allegation alone was insufficient to establish defendant's contention that the amounts charged by plaintiff for these acupuncture services exceeded the relevant rates set forth in the workers' compensation fee schedule (see Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d, 11th & 13th Jud Dists 2011]) and, thus, defendant was not entitled to summary judgment with respect to these claims.

Defendant denied the portion of plaintiff's September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 based on an independent medical examination (IME) performed on August 13, 2007 by an acupuncturist who concluded that further acupuncture treatment was no longer necessary. In support of its cross motion, defendant submitted the sworn report of the acupuncturist, which established, prima facie, a lack of medical necessity for the services performed from August 29, 2007 through September 6, 2007. In opposition, plaintiff submitted the affidavit of its treating acupuncturist which did not rebut the conclusions set forth in the IME report (see Olga Bard Acupuncture, P.C. v Geico Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51898[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]). Accordingly, so much of defendant's cross motion as seeks to dismiss this portion of plaintiff's claim should have been granted.

In light of the foregoing, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover the portion of plaintiff's September 10, 2007 claim that was for dates of service from August 29, 2007 through September 6, 2007 is granted.

Queens Brooklyn Med. Rehab, P.C. v Lancer Ins. Co., 34 Misc 3d 131(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Plaintiff contends on appeal that the November 2008 order should be vacated because plaintiff's "discovery responses made it explicitly clear that no management agreements exist or are in [plaintiff's] possession, and written billing agreements were never entered into between [plaintiff] and any other party"; that it was never in possession of a lease agreement; and that its representatives had testified at numerous depositions in other actions that the lease agreement was between landlord and a third party. At the outset, we note that plaintiff never asserted this argument in the Civil Court. In any event, a review of plaintiff's responses to defendant's discovery demands reveals that plaintiff did not provide full and complete responses to the demands, and never clearly indicated that no management, lease or billing agreements existed. As plaintiff has failed to comply with the court's November 17, 2008 order and as plaintiff's remaining contentions lack merit or are unpreserved for appellate review, we find no basis to disturb the judgment.

Comfort Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 132(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Plaintiff's affiant stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (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, if either, was used in this case. Accordingly, the affidavit did not establish that the supplies at issue had been delivered to plaintiff's assignor, and plaintiff's motion for summary judgment was properly denied (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142[A], 2011 NY Slip Op 50315[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Friendly Physician, P.C. v GEICO Ins. Co., 34 Misc 3d 132(A)(App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Contrary to defendant's only contentions on appeal regarding plaintiff's prima facie showing of its entitlement to judgment as a matter of law, plaintiff demonstrated that the subject bills were submitted to defendant and that they set forth the fact and the amount of the loss sustained. However, we find that the sworn statements submitted by defendant in opposition to plaintiff's motion were sufficient to raise a triable issue of fact as to whether the alleged injuries arose out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, 11th and 13th Jud Dists 2009]).

Allstate Social Work & Psychological Svcs., PLLC v Auto One Ins. Co., 34 Misc 3d 132(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Although defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover no-fault benefits because plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws, a defense which is not precluded (see Multiquest, P.L.L.C. v Allstate Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]), defendant's original discovery demands did not seek production of documents pertaining to such a defense. Consequently, the branch of defendant's motion seeking to compel plaintiff to respond to defendant's supplemental discovery demands was premature and should not have been granted (see CPLR 3120 [2]; 3124), as plaintiff had not had an opportunity to respond to the supplemental demands (see Jones v LeFrance Leasing L.P., 81 AD3d 900 [2011]). Plaintiff's remaining contentions either lack merit or are not properly before the court as they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

Citywide Social Work & Psychological Servs., PLLC v Elrac, Inc., 34 Misc 3d 132(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

A review of the record indicates that the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint inasmuch as it was uncontroverted that defendant had not been provided with written notice of the accident within the requisite time period, and had not been provided with "written proof that it was impossible to comply with such time limitation due to specific circumstances beyond such person's control" (Insurance Department Regulations [11 NYCRR] former § 65.11 [m] [2]; see also New York & Presby. Hosp. v Country Wide Ins. Co., 17 NY3d 586 [2011]; Persaud v Rahman, 262 AD2d 542 [1999]). We note that, in 2001, there was no requirement that a denial of claim form, which denies a claim on the ground that notice of the accident was not timely provided, contain any type of ameliorative language (cf. Insurance Department Regulations [11 NYCRR] § 65-1.1 [the current regulation, requiring that a denial of claim form, which denies a claim on the ground that notice of the accident was not timely provided, must contain the ameliorative language that late notice is permitted if "the eligible injured person or that person's representative submits written proof providing clear and reasonable justification for the failure to comply with such time limitation"]).

Apple Tree Acupuncture, P.C. v Interboro Ins. Co., 34 Misc 3d 132(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

We find that defendant's motion established that the claim denial forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant, however, was not entitled to partial summary judgment with respect to plaintiff's first [*2]two claims (for dates of service from February 1, 2007 through February 28, 2007 and from March 1, 2007 through March 29, 2007). The explanation entered on defendant's denial of claim forms for these two claims reflected that plaintiff was not entitled to recover for concurrent care, pursuant to General Ground Rule 6 of the workers' compensation fee schedule. In support of its motion for partial summary judgment, however, defendant asserted that these claims should be dismissed, pursuant to the workers' compensation fee schedule, because the amounts sought by plaintiff for the acupuncture services it had rendered to its assignor exceeded the amounts permitted by the fee schedule. Because defendant's motion was predicated on an excessive fee schedule defense, and since the explanation for the denial on defendant's denial of claim forms did not apprise plaintiff of the ground asserted in its motion with "a high degree of specificity" (see St. Vincent's Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871, 872 [2011], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]), defendant was not entitled to partial summary judgment on this ground with respect to these claims.

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 133(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

On appeal, defendant contends, and plaintiff concedes, that no HIPAA authorization or notification was required. Defendant argues that it was entitled to summary judgment dismissing the complaint because it had not received written notice of the accident, which was a condition precedent to coverage.

Whole Health Acupuncture, P.C. v MVAIC, 34 Misc 3d 133(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

To the extent that the Civil Court denied MVAIC's motion on the ground that MVAIC had not established that its "verification requests" were mailed to plaintiff or plaintiff's assignor, such ground lacks merit under the circumstances of this case (cf. New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]).

Acupuncture Works, P.C. v Interboro Ins. Co., 34 Misc 3d 134(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant failed to submit written opposition, and the Civil Court, by order entered February 5, 2010, granted plaintiff's motion. Thereafter, defendant moved to vacate the February 5, 2010 order, which motion the court denied, by order dated May 19, 2010, finding that "[t]here was no default in this case." Defendant appeals from the February 5, 2010 order, which appeal is deemed to be from the subsequently entered judgment (see CPLR 5501 [c]).

"Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion" (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]; see also Astoria Wellness Med., P.C. v State [*2]Farm Mut. Auto. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52008[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In view of the foregoing, the appeal from the judgment entered pursuant to the default order must be dismissed.

Liu Yong, Acupuncture v Metropolitan Prop. & Cas. Ins. Co., 34 Misc 3d 134(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

The affidavit of defendant's litigation representative established that, except for the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff's October 4, 2005 claim (for services rendered from September 6 through September 29, 2005), defendant had timely denied plaintiff's claims (see St. Vincent's Hosp. of Richmond v [*2]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]) on the ground that the unpaid portion exceeded the amount permitted by the workers' compensation fee schedule. Moreover, defendant demonstrated that it had fully paid plaintiff for the billed-for services in accordance with the workers' compensation fee schedule (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 so much of defendant's motion for summary judgment as sought dismissal of the claims other than plaintiff's October 4, 2005 claim.

Since defendant failed to establish the timely mailing of the denial of claim form which indicated that defendant had partially paid and partially denied plaintiff's October 4, 2005 claim, defendant was not entitled to summary judgment upon this claim.

WJJ Acupuncture, P.C. v Geico Ins. Co., 34 Misc 3d 134(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Defendant did not proffer any evidence or argument to warrant the dismissal of plaintiff's claim of $114 for the initial acupuncture visit on October 26, 2005, billed under CPT 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]). As defendant raised no issue on appeal with respect to plaintiff's establishment of its prima facie case, we do not reach the propriety of the Civil Court's determination with respect thereto. 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 denied the branch of defendant's cross motion seeking summary judgment dismissing this claim.

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon defendant's failure to sufficiently and timely 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 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). As a result, defendant is precluded from offering evidence in this action. However, plaintiff was not entitled to summary judgment because its moving papers failed to establish a prima facie entitlement to such relief (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 15 Misc 3d 128[A], 2007 NY Slip Op 50602[U] [App Term, 2d & 11th Jud [*2]Dists 2007]).

City Dental Servs., P.C. v New York Cent. Mut., 34 Misc 3d 127(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for partial summary judgment dismissing the fifth and sixth causes of action and plaintiff cross-moved for partial summary judgment on the same causes of action. The Civil Court found that "the bills were timely mailed to Defendant and Defendant timely denied." The court denied the branch of defendant's motion seeking partial summary judgment dismissing the fifth cause of action, finding the sole issue for trial to be the medical necessity of the billed-for services. The court denied the branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action on the ground that a declaratory judgment, which defendant had argued was res judicata as to that cause of action, had been entered on default and thus did not preclude the litigation of this cause of action.

The branch of defendant's motion seeking partial summary judgment dismissing the sixth [*2]cause of action should have been granted. Defendant demonstrated that it had commenced a declaratory judgment action in Supreme Court alleging, among other things, that the "accident" at issue in this case had been staged. Defendant further established that a judgment had been entered in that action, on default, declaring that defendant herein was not required to pay any money to any party named as a defendant in that declaratory judgment action for claims arising from the incidents that were the subject of that action. Both plaintiff herein and the assignor whose claims are the subject of plaintiff's sixth cause of action were named as defendants in the declaratory judgment action. As plaintiff has not alleged that it lacked notice of the prior action, or that it has taken any steps to vacate its default in that action, it is precluded from litigating the issue of whether defendant is required to reimburse plaintiff for claims arising out of the subject incident (see Gaston v American Tr. Ins. Co., 40 AD3d 578 [2007]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

The branch of defendant's motion seeking partial summary judgment dismissing the fifth cause of action was properly denied, as defendant's affirmed peer review report was insufficient to demonstrate, prima facie, that the billed-for services were not medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Finally, so much of the order appealed from as implicitly found, pursuant to CPLR 3212 (g), that plaintiff has established each element of its case with respect to [*3]the fifth cause of action is vacated, as plaintiff's submissions failed to establish proof of the fact and the amount of the loss sustained (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branch of defendant's motion seeking partial summary judgment dismissing the sixth cause of action is granted, and by further providing that so much of the order as implicitly found, pursuant to CPLR 3212 (g), that plaintiff has established each element of its case with respect to the fifth and sixth causes of action is vacated.

New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

The sole argument raised on appeal is whether defendant proffered admissible evidence of a fraudulently procured insurance policy. Upon our review of the record, we find that the affidavits and investigative reports annexed to defendant's motion papers sufficiently established that the assignor, who was also the insured under the subject insurance policy, had misrepresented his state of residence. Furthermore, the evidence submitted by defendant established that this misrepresentation was material since defendant would not have issued the policy had it known that the assignor resided in the State of New York, as defendant was not licensed to insure vehicles in New York at the time of this loss, and would not have issued the subject policy to him. Thus, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; 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]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). In opposition, plaintiff, as assignee standing in the shoes of its assignor (see New York & Presbyt. [*2]Hosp. v Country Wide Ins. Co., NY3d , 2011 NY Slip Op 07149 [2011]), failed to submit any evidence sufficient to defeat defendant's motion for summary judgment. Accordingly, the judgment is affirmed.

WJJ Acupuncture, P.C. vNationwide Mut. Ins. Co., 34 Misc 3d 127(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In support of its motion for summary judgment, defendant submitted an affidavit of its claims representative which established neither that the denial of claim forms, which denied the claims at issue on the ground that the fees sought exceeded the amount permitted by the workers' compensation fee schedule, had actually been timely mailed nor that they had been timely mailed in accordance with defendant's standard office practices and procedures so as to give rise to the presumption of mailing (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's motion for summary judgment should have been denied.

Vega Chiropractic, P.C. v Kemper Independence Ins. Co., 34 Misc 3d 128(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

With respect to plaintiff's claims for $155.84 and $134.80, defendant, in its brief, in effect concedes that it is not entitled to summary judgment dismissing these claims on the ground relied upon by the Civil Court. Defendant requests that these claims be "returned to the lower court for a determination as to the merits of defendant's summary judgment motion" based upon the grounds set forth in its motion papers. As the record indicates that the Civil Court apparently did not consider the grounds upon which defendant sought summary judgment with respect to the claims for $155.84 and $134.80, so much of the Civil Court's order as granted the branches of defendant's motion for summary judgment seeking to dismiss these claims is stricken, and the matter is remitted to the Civil Court for a new determination with respect to these two claims.

Great Wall Acupuncture, P.C. v Interboro Mut. Indem. Ins., 34 Misc 3d 128(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Plaintiff commenced this action to recover the sum of $3,854.30 in assigned first-party no-fault benefits. In April 2006, the attorneys for plaintiff and defendant entered into a "Stipulation of Settlement," settling plaintiff's claim for the sum of $1,387.55, which amount had to be received by plaintiff's attorney within 30 days. The stipulation provided that, pursuant to CPLR 3215 (i) (1), defendant's failure to comply with its terms would result in the entry of judgment in the sum of $1,387.55, plus interest. The parties also executed a "Stipulation Discontinuing Action After Settlement," dated April 2006, which provided, among other things, that:

    "This stipulation may be filed with the Clerk of the Court without further notice to     either party."

Both parties agree that the stipulation of settlement did not become effective until August 8, 2007.

Thereafter, defendant sent plaintiff two checks, each dated September 7, 2007, totalling the sum of $1,387.55. Plaintiff's attorney stated that he did not receive any payment within 30 days as required by the terms of the stipulation of settlement and, therefore, negotiated a second stipulation with defendant which settled the claim for the sum of $3,250. Defendant signed and returned the second stipulation to plaintiff's attorney in October 2007. In the interim, plaintiff received defendant's two checks totaling $1,387.55, which plaintiff deposited on September 24, 2007. After defendant failed to pay the additional amount owed pursuant to the second [*2]stipulation, plaintiff attempted to enter judgment but, since defendant had already filed the April 2006 stipulation of discontinuance, the clerk would not enter judgment. Plaintiff subsequently moved for leave to enter judgment, which motion the Civil Court denied "based upon a
review of all papers which indicate a settlement was entered into, payment was made upon it and checks were cashed without a reservation of rights."

It is uncontroverted that plaintiff signed a stipulation of discontinuance, with prejudice, which was filed in the Civil Court prior to plaintiff's attempt to enter judgment on the second stipulation. Since the instant action was terminated with the filing of the binding stipulation of discontinuance (see CPLR 2104), the relief requested by plaintiff was no longer available by motion in this action but, rather, plaintiff was required to commence a plenary action (see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Matter of Serpico, 62 AD3d 887 [2009]; Zeer v Azulay, 50 AD3d 781, 785 [2008]).

Crossbridge Diagnostic Radiology v Progressive Northeastern Ins. Co., 34 Misc 3d 128(A) (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 did not improvidently exercise its discretion in denying plaintiff's motion to vacate a prior order granting defendant's unopposed motion for summary judgment, since plaintiff failed to demonstrate a reasonable excuse for its failure to submit written opposition to defendant's motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

W.H.O. Acupuncture, P.C. v State-Wide Ins. Co., 34 Misc 3d 128(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

The sole argument raised on appeal is that defendant was not entitled to summary judgment because defendant's denial of claim form was untimely. Although this argument is raised for the first time on appeal, the affidavit of defendant's claims examiner admits that the denial of claim form was mailed more than 30 days after defendant had received plaintiff's claims. As a result, "this issue may be raised for the first time on appeal, since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture" (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]). Inasmuch as defendant's moving papers were insufficient to establish that defendant had timely mailed requests for verification (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 failed to establish that its 30-day claim determination period was tolled. In light of the foregoing, defendant's motion for summary judgment should have been denied.

Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

We note that, contrary to plaintiff's argument below and on appeal, the April 10, 2008 order denying plaintiff's motion for summary judgment did not make an explicit or implicit CPLR 3212 (g) finding that there were any facts that had been established for all purposes in the action (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d & 11th Jud Dists 2007]). Therefore, upon the new trial, plaintiff will be required to introduce evidence to establish its case (id.).

Richmond Univ. Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 34 Misc 3d 129(A) (App. Term, 9th & 10th Jud. Dists. 2011)

In order for the claim form to constitute prima facie proof of the fact and the amount of the loss sustained, the affidavit submitted by a provider 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]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Plaintiff's submission of a third-party's affidavit failed to demonstrate that the UB-04 form, which was incorporated by reference into the NF-5 hospital facility form and which listed [*2]the services provided by the hospital, was plaintiff's business record and, therefore, was admissible as proof that those services were rendered (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U]). Consequently, plaintiff did not establish its prima facie entitlement to summary judgment as a matter of law, and its motion for summary judgment is denied.

In addition, a review of the record indicates that defendant is not entitled to summary judgment dismissing the complaint, as defendant did not establish, as a matter of law, that the assignor was not an eligible injured person because she did not reside in the insured's household on the date of the accident (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]; see generally Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) defines an eligible injured person as, among other things, a child who regularly resides in the insured's household even if he or she is temporarily living elsewhere. Consequently, as the affidavit of defendant's investigators alleged that the assignor had, at some point, resided with her father, the insured, defendant's cross motion was properly denied.

Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126(A) (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 commence the action 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, MVAIC established that plaintiff had commenced the action after the expiration of the statute of limitations. In opposition, plaintiff failed either to demonstrate that the action had been timely commenced or to raise an issue of fact as to its timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 429 [2004]; Turnpike Med. P.C. v MVAIC, 32 Misc 3d 143[A], 2011 NY Slip Op 51717[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2011]).

All Is. Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142(A) (App. Term, 9th & 10th 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 to plaintiff's assignor on December 23, 1999 were medically necessary. After a nonjury trial, the District Court issued a decision awarding judgment in defendant's favor. Plaintiff appeals from this decision. A judgment was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

At trial, defendant's doctor testified that, in his opinion, the medical services provided by plaintiff were not medically necessary. His peer review report concluding that there was a lack of medical necessity was also entered into evidence. This evidence was sufficient to establish that the services rendered were not medically necessary. Plaintiff called no witnesses in rebuttal. [*2]In view of the foregoing, the judgment dismissing the complaint is affirmed (see Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]).

Five Boro Psychological Servs., P.C. v Allstate Ins. Co., 33 Misc 3d 141(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved by order to show cause to dismiss the complaint pursuant to CPLR 3211 (a) (2) and to stay the trial pending resolution of the motion. The Civil Court granted a stay pending determination of the motion and, on the return date, the parties stipulated to a motion schedule with a new return date. As plaintiff submitted no papers in opposition to defendant's motion by the new return date, the order granting defendant's motion to dismiss the complaint must be deemed to have been entered upon default, from which no appeal lies by the defaulting party (CPLR 551 see Benitez v Olson, 29 AD3d 503 [2006]; Macik v Stutman, 21 Misc 3d 144[A], 2008 NY Slip Op 52469[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff's appeal is dismissed.


Parsons Med. Supply, Inc. v Metropolitan Prop. & Cas. Ins. Co., 33 Misc 3d 141(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Rios, J., dissents in part and concurs in part and votes to modify the order by providing that defendant's motion for summary judgment is denied in the following memorandum:

The affidavit of defendant's "litigation representative" in my opinion fails to establish a procedure to ensure the mailing of the denial. The affidavit indicates that the denial envelope is placed in a "pick up" bin, from where it is taken to the mailroom, where postage is affixed, and subsequently mailed. I find the absence of an affidavit from someone familiar with the mailroom procedures is fatal to a claim of timely denial.

Accordingly, I would modify the order by providing that defendant's motion for summary judgment is denied.

Plaintiff's cross motion was properly denied. The attorney's affirmation was insufficient to establish plaintiff's entitlement to judgment as a matter of law.

Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

In support of its motion, defendant submitted an affidavit by an employee of its claims division, which was sufficient to establish that the verification requests and 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 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]), but which was insufficient to establish defendant's contention that the amounts charged by plaintiff for the acupuncture services rendered exceeded the relevant rates set forth in the workers' compensation fee schedule. The applicable portion of the fee schedule was not [*2]annexed to defendant's papers. While courts are permitted to take judicial notice of the workers' compensation fee schedule (see LVOV Acupuncture, P.C. v Geico Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50040[U] [App Term, 1st Dept 2011]; see also Kingsbrook Jewish Med. Ctr.v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), a party seeking to have the court take judicial notice should provide the court with sufficient information to permit the court to take judicial notice and should advise the adverse party of the request for judicial notice (CPLR 4511 [b]). Inasmuch as that was not done here, we decline to take judicial notice of the workers' compensation fee schedule in this case. Accordingly, with respect to the acupuncture services rendered by its licensed acupuncturist for the acupuncture sessions from August 7, 2006 through September 21, 2006, the Civil Court properly denied defendant's motion for summary judgment. Likewise, the Civil Court properly denied defendant's motion for summary judgment to the extent that it sought dismissal of plaintiff's claim for the initial acupuncture visit of August 4, 2006, as defendant did not proffer sufficient evidence to warrant the dismissal thereof (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]).

Plaintiff, however, was not entitled to summary judgment on its cross motion, as it failed to establish that there was an untimely denial or that the denial was conclusory, vague or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78AD3d 1168 [2010]). Accordingly, the order is modified by providing that plaintiff's cross motion for summary judgment is denied.

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141(A) (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Defendant established that its denial of claim forms were 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 regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant's claims examiner stated in his affidavit submitted in opposition to plaintiff's motion that he had denied this claim based upon the failure [*2]of plaintiff's assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff's assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; 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]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant's belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers' compensation fee schedule, we find that an issue of fact exists with respect thereto (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]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 (App. Term, 2nd, 11th &13th Jud. Dists. 2011)

Defendant's doctor should have been permitted to testify as to his medical opinion regarding the medical necessity of the equipment at issue. Although defendant's doctor had reviewed medical records that had been submitted to defendant by the assignor's various health care providers, the purpose of defendant's doctor's testimony was not to establish, for example, the injury to plaintiff's assignor or to prove that the assignor had received the equipment for which plaintiff is billing in this case (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]; see also 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]; cf. e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]).{**34 Misc 3d at 31} It is not defendant's burden to prove these facts. Defendant's position in this litigation was that, assuming that the contents of all of the records [*2]were true, including the statements as to the assignor's alleged injuries, there was, nonetheless, still no medical necessity for the equipment provided to the assignor. To that extent, defendant's doctor should have been permitted to testify as to the contents of the record he had reviewed. However, as defendant's doctor did not have to establish the truth of the facts set forth in those records, defendant did not have to establish the reliability of the assignor's medical records, and plaintiff's objection lacked merit. Accordingly, defendant's doctor should have been allowed to testify as to his opinion that the equipment was not medically necessary.

We note that plaintiff, who had every opportunity to employ discovery to obtain all the medical records reviewed by defendant's doctor, was free to, among other things, use such records to impeach the witness to the extent plaintiff considered defendant's witness's characterization of the contents of those records inaccurate. Similarly, plaintiff was free to cross-examine the witness as to his conclusion that the equipment was not medically necessary, or to offer rebuttal witnesses.

Lower Court

Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co., 2012 NY Slip Op 50676(U) (Nass. Dist. Ct. 2012)

Tarnoff Chiropractic, P.C. v GEICO Ins. Co., 2012 NY Slip Op 50670(U) (Nass. Dist. Ct. 2012)

Exclusive Med. Supply, Inc. v MVAIC, 2012 NY Slip Op 50616(U) (Civ. Ct. Kings County 2012)

 

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