Reported in New York Official Reports at Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)
| Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. |
| 2017 NY Slip Op 00916 [147 AD3d 437] |
| February 7, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Kemper Independence Insurance Company,
Respondent, v Adelaida Physical Therapy, P.C., et al., Appellants, et al., Defendants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered February 19, 2015, to the extent appealed from, granting plaintiff’s motion for summary judgment and declaring that plaintiff is not obligated to provide no-fault benefits to defendants Adelaida Physical Therapy, P.C., Charles Deng Acupuncture, P.C., Delta Diagnostic Radiology, P.C., Island Life Chiropractic Pain Care, PLLC, Maiga Products Corp., and TAM Medical Supply Corp. as a result of a motor vehicle accident, due to claimants’ failure to appear for their scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.
Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618).
In view of our disposition, we need not reach defendants’ remaining contentions. Concur—Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.
Reported in New York Official Reports at American Tr. Ins. Co. v Baucage (2017 NY Slip Op 00015)
| American Tr. Ins. Co. v Baucage |
| 2017 NY Slip Op 00015 [146 AD3d 413] |
| January 3, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Gerbert Baucage et al., Defendants, and Innovative Medical Heights, P.C., Appellant. |
Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.
Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.
Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).
Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.
Reported in New York Official Reports at Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51824(U))
| Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co. |
| 2016 NY Slip Op 51824(U) [54 Misc 3d 129(A)] |
| Decided on December 29, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 29, 2016
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570152/16
against
Allstate Property & Casualty Insurance Company, Defendant-Respondent.
Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered July 30, 2015, as denied their cross motion for summary judgment on the issue of medical necessity.
Per Curiam.
Order (Tanya R. Kennedy, J.), entered July 30, 2015, affirmed, with $10 costs.
The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). On the merits, we agree with Civil Court that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the manipulation under anesthesia procedure underlying plaintiff’s claims (see Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50565[U] [App Term, 1st Dept 2015]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: December 29, 2016
Reported in New York Official Reports at Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC (2016 NY Slip Op 08964)
| Matter of Global Liberty Ins. Co. v Coastal Anesthesia Servs., LLC |
| 2016 NY Slip Op 08964 [145 AD3d 644] |
| December 29, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Global Liberty Insurance Co.,
Appellant, v Coastal Anesthesia Services, LLC, as Assignee of Lourdes Irizarry, Respondent. |
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Russell Friedman & Associates, LLP, Lake Success (Dara C. Goodman of counsel), for respondent.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered April 6, 2016, which denied petitioner’s application to vacate a master arbitration award entitling respondent to no-fault insurance benefits, and granted respondent’s cross motion to confirm the award, unanimously affirmed, with costs.
Petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the Master Arbitrator’s award (CPLR 7511 [b]). The decision of the Master Arbitrator in affirming the arbitration award had evidentiary support, a rational basis, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). The original arbitrator properly acted within her discretionary authority to refuse to entertain any late submissions proffered by petitioner (see 11 NYCRR 65-4.2 [b] [3]; Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017 [2d Dept 2009]). Concur—Mazzarelli, J.P., Sweeny, Richter, Manzanet-Daniels and Feinman, JJ.
Reported in New York Official Reports at Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))
| Five Boro Med. Equip., Inc. v Praetorian Ins. Co. |
| 2016 NY Slip Op 51481(U) [53 Misc 3d 138(A)] |
| Decided on October 19, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on October 19, 2016
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570196/16
against
Praetorian Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered April 1, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Carol R. Feinman, J.), entered April 1, 2015, reversed, with $10 costs, and defendant’s motion denied.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to adequately state the basis of their recollection, some three years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 19, 2016
Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2016 NY Slip Op 51479(U))
| Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. |
| 2016 NY Slip Op 51479(U) [53 Misc 3d 137(A)] |
| Decided on October 19, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on October 19, 2016
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570200/16
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered July 6, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Alexander M. Tisch, J.), entered July 6, 2015, reversed, with $10 costs, and defendant’s motion denied.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. Although defendant claims that the assignor failed to appear for two scheduled independent medical examinations (IMEs), defendant failed to show that the scheduling of the IMEs complied with the procedures and time frames set forth in Insurance Department Regulations (11 NYCRR) § 65-3.5(d); see American Tr. Ins. Co. v Vance, 131 AD3d 849 [2015]; American Tr. Ins. Co. v Longevity, 131 AD3d 841 [2015]; Acupuncture, Approach, P.C. v Allstate Ins. Co., 46 Misc 3d 151[A], 2015 NY Slip Op 50318[U] [App Term, 1st Dept. 2015]). In this regard, there is no indication in the record as to when defendant received plaintiff-provider’s no-fault claims and thus no basis to determine the timeliness of defendant’s IME requests. Although this issue was raised for the first time on appeal, it presents a question of law which this Court can review (see American Tr. Ins. Co. v Longevity, 131 AD3d at 841-842).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 19, 2016
Reported in New York Official Reports at Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology (2016 NY Slip Op 06767)
| Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology |
| 2016 NY Slip Op 06767 [143 AD3d 536] |
| October 13, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Unitrin Advantage Insurance Company
Kemper A. Unitrin Business, Appellant-Respondent, v Professional Health Radiology, as Assignee of Anggi Camacho, Appellant. Unitrin Advantage Insurance Company Kemper A. Unitrin Business, Appellant, v Professional Health Radiology, as Assignee of Nestor Camacho, Respondent. |
Gullo & Associates, LLC, Brooklyn (Cristina Carollo of counsel), for appellant-respondent/appellant.
Gary Tsirelman, P.C., Brooklyn (David M. Gottlieb and Stefan Belinfanti of counsel), for respondent-appellant/respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 29, 2014, which, to the extent appealed from as limited by the briefs, denied and dismissed petitioner Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, and granted respondent Professional Health Radiology as assignee of Nestor Camacho’s counterclaim to the extent of confirming the award, unanimously affirmed, without costs. Order, same court (Lawrence K. Marks, J.), entered March 14, 2014, which denied Unitrin’s petition to vacate a no-fault master arbitration award dated June 3, 2013, granted respondent Professional Health Radiology as assignee of Anggi Camacho’s counterclaim to confirm the award, and denied Professional Health’s counterclaim for attorney’s fees in connection with the court proceeding, unanimously modified, on the law, to grant the counterclaim for attorney’s fees, and remand the matter to Supreme Court for further proceedings consistent with this decision, and otherwise affirmed, without costs.
Unitrin failed to establish that it was entitled to deny Professional Health’s claims on the ground that Professional Health’s assignors, Nestor Camacho and Anggi Camacho, did not appear for independent medical examinations (IMEs) (see American Tr. Ins. Co. v Clark, 131 AD3d 840 [1st Dept 2015]). The no-fault regulations include mandatory notice requirements governing insurer requests for both IMEs and examinations under oath (11 NYCRR 65-3.5 [e]). The regulations expressly provide that the insurer “shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request” (id.). Unitrin failed to establish that the requisite regulatory language was contained within its November 30, 2011 letters sent to the assignors, and, based on the multiple errors committed by Unitrin, it failed to establish inadvertent law office error, or that the cases should be remanded, in the interest of justice, for a new arbitration hearing.
[*2] Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” “In a proceeding for judicial review of an award by a master arbitrator, an attorney’s fee shall be fixed by the court adjudicating the matter” (Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947, 948 [2d Dept 2016]; see 11 NYCRR 65-4.10 [j] [4]). Professional Health, therefore, is entitled to attorney’s fees in connection with the Supreme Court proceeding regarding Anggi Camacho, and we remand the matter for further proceedings to determine those fees. Professional Health did not file a cross appeal with respect to the denial of its counterclaim for attorney’s fees in connection with the Supreme Court proceeding regarding Nestor Camacho, and this Court lacks the power to grant the counterclaim (see Hecht v City of New York, 60 NY2d 57 [1983]). Concur—Renwick, J.P., Manzanet-Daniels, Gische and Webber, JJ.
Reported in New York Official Reports at Karina K. Acupuncture, P.C. v Hartford Ins. Co. (2016 NY Slip Op 51382(U))
| Karina K. Acupuncture, P.C. v Hartford Ins. Co. |
| 2016 NY Slip Op 51382(U) [53 Misc 3d 132(A)] |
| Decided on September 28, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 28, 2016
PRESENT: Shulman, J.P., Gonzalez, J.
570376/16
against
The Hartford Insurance Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated August 18, 2015, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Alexander M. Tisch, J.), August 18, 2015, affirmed, with $10 costs.
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 timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). Defendant submitted competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of defendant’s third-party IME scheduler, setting forth sufficient facts to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the IMEs and the office practices and policies when an assignor fails to appear for a scheduled IME (see American Tr. Ins. Co. v Lucas, 111 AD3d at 424).
In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
We have considered plaintiff’s remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: September 28, 2016
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2016 NY Slip Op 51381(U))
| Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. |
| 2016 NY Slip Op 51381(U) [53 Misc 3d 131(A)] |
| Decided on September 28, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 28, 2016
PRESENT: Shulman, J.P., Gonzalez, J.
570377/16
against
Clarendon National Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), entered March 4, 2015, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Alexander M. Tisch, J.), entered March 4, 2015, reversed, with $10 costs, and defendant’s motion denied.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 8 years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: September 28, 2016
Reported in New York Official Reports at Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51302(U))
| Urban Well Acupuncture, P.C. v Erie Ins. Co. of N.Y. |
| 2016 NY Slip Op 51302(U) [53 Misc 3d 126(A)] |
| Decided on September 19, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 19, 2016
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570162/16
against
Erie Insurance Company of New York, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered March 12, 2015, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Paul A. Goetz, J.), entered March 12, 2015, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The affidavits and other documentary evidence submitted by defendant established, prima facie, that it timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff’s no-fault claims on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] [App Term, 1st Dept. 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept. 2009]). In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee pertaining to these claims. Therefore, defendant’s motion for summary judgment dismissing the claim — which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule — should have been granted.
Plaintiff’s remaining arguments are either unpreserved or lacking in merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: September 19, 2016