Choice Health Chiropractic, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 50185(U))

Decided on February 8, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, TERRY JANE RUDERMAN, JJ
2016-1038 S C

The Law Office of Gregory A. Goodman, P.C., (Gregory A. Goodman), for appellant. Law Offices of Daniel J. Tucker, (Daniel J. Tucker, Joshua Goldberg and Netanel BenChaim of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated April 19, 2016. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,310.94 is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the District Court as granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer or compel defendant to produce its no-fault examiner for a deposition.

In support of its motion, defendant established that it had timely mailed letters scheduling an initial and follow-up independent medical examination (IME) (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the scheduled IMEs on January 9, 2014 and February 6, 2014 (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s claim for $1,019.62 was received on March 17, 2014 and timely denied, based on the assignor’s failure to appear for IMEs, on April 3, 2014 (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123); therefore, plaintiff has failed to establish a basis to disturb the portion of the order which granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon that claim.

While defendant did not deny plaintiff’s $1,310.94 claim, which it had received on January 7, 2014, within 30 days of receipt of that claim or of the second IME nonappearance, defendant demonstrated, prima facie, that, upon receipt of that claim, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) and that it had timely denied the claim, based on the assignor’s failure to appear for IMEs, within 30 days of receiving the requested verification (see 11 NYCRR 65-3.8 [l]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, as the affidavit submitted by plaintiff was sufficient to demonstrate the existence of an issue of fact regarding defendant’s mailing of its initial and follow-up requests for written verification, there is an issue of fact as to whether defendant’s time to pay or deny that claim was tolled by virtue of the pending verification requests and, thus, whether defendant’s denial of plaintiff’s $1,310.94 claim was timely. In light of the foregoing, plaintiff’s contention that the branch of its cross motion seeking summary judgment should have been granted lacks merit.

To the extent plaintiff asserts that the District Court should have granted the branches of plaintiff’s cross motion seeking to strike defendant’s answer or, in the alternative, compel defendant to produce its no-fault examiner for a deposition, plaintiff failed to demonstrate that it had requested a deposition in this action, as the affidavit of service for the deposition notice annexed to plaintiff’s cross motion is for a different case. Consequently, these branches of plaintiff’s cross motion were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the $1,310.94 claim is denied.

GARGUILO, J.P., MARANO and RUDERMAN, JJ., concur.