Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51266(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 25, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff had established its prima facie case; as so modified, the order, insofar as appealed from, is affirmed, without costs.

As relevant to this appeal, in this action by a provider to recover assigned first- party no-fault benefits, defendant moved for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai. Defendant’s submissions indicated that Kanhai had failed to appear for scheduled independent medical examinations (IMEs) and, with [*2]regard to two of plaintiff’s claims, in the sums of $465.53 and $560.17, respectively, that these claims were premature since plaintiff had failed to provide requested documentary verification. Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.

In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).

With respect to the merits of defendant’s motion, we find that defendant failed to meet its burden of establishing that plaintiff’s assignor had not appeared for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) since there was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined. The record also shows that defendant failed to establish that plaintiff’s claims in the amounts of $465.53 and $560.17 for services provided to assignor Kanhai were premature. A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant failed to establish entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims assigned to plaintiff by Curtis Kanhai.

Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff established its prima facie case.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2013