Megacure Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 51994(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 (Dawn Jimenez Salta, J.), entered November 26, 2010. The order denied defendant’s motion to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied as to so much of the complaint as seeks to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14, and by further providing that defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for examinations before trial solely with respect to the issue of plaintiff’s billing practices; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy, plaintiff’s owner and the treating provider, respectively, for examinations before trial (EBTs) regarding plaintiff’s “treatment” and “billing practices,” and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff’s cross motion, arguing that it had timely denied [*2]plaintiff’s claims on the ground that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

With respect to plaintiff’s claims for the sums of $114, $300.32, and $931.68, it is undisputed that these claims were not paid or denied within 30 days of their receipt. Nor does defendant assert that the EUOs of Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy were requested, or pending, during that time. We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate that these three claims had been timely denied and therefore did not establish that its defenses as to these three claims are not precluded. Thus, the Civil Court properly granted the branches of plaintiff’s cross motion seeking summary judgment as to so much of the complaint as sought to recover upon these claims.

In opposition to the remaining branches of plaintiff’s motion, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]; ARCO Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), that Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy had failed to appear for the EUOs (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]) and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see also Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300-301 [2007]). Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]).

Consequently, as defendant is not precluded from interposing its defense that plaintiff had failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]; ARCO Med. NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U]), the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover for claims in the sums of $786.22, $323.96, $605.34, $413.80, $281.98 and $124.14 are denied.

With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.” However, as defendant’s denial of claim form did not raise any defense based on “treatment,” defendant is precluded from raising any such defense (see e.g. Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). In view of the foregoing, and as defendant established that it had served an EBT notice and that plaintiff had failed to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs, defendant’s motion to compel is granted to the extent of compelling plaintiff to produce Tatyana Kapustina, L.Ac., and Oleg Shargordoskiy for EBTs solely with respect to the issue of plaintiff’s billing practices (see Philip v Monarch Knitting Mach. Corp., 169 AD2d 603, 604 [1991]; Blessin v Greenberg, 89 AD2d 862 [1982]; Arco Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 21, 2013