Decided on November 12, 2015

Decided on October 27, 2015

Defendant appeals from an order the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered February 11, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered February 11, 2015, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

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 chiropractic/acupuncture 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]). Contrary to plaintiff’s specific contention, defendant was entitled to request the IMEs prior to its receipt of plaintiff’s claim forms (see 11 NYCRR 65-1.1 [an insurer has a right to request IMEs “when, and as often as [it] may reasonably require”]; Steven Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006] [an insurer is entitled to request IMEs “before . . . or after the claim form is submitted” (emphasis supplied)]; see also Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Moreover, defendant submitted competent evidence of the assignor’s nonappearance, in the form of the sworn affidavits of the scheduled examining chiropractors/ acupuncturists and an employee of defendant’s third-party IME scheduler, setting forth facts sufficient 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 to defendant’s prima facie showing, 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]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004]; Abuhamra v New York Mut. [*2]Underwriters, 170 AD2d 1003 [1991]).

In view of our determination, we reach no other issue.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on October 20, 2015

Decided on October 8, 2015

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered March 19, 2014, as granted defendant’s motion for partial summary judgment.

Per Curiam.

Order (Joseph E. Capella, J.), entered March 19, 2014, insofar as appealed from, affirmed, with $10 costs.

We sustain the grant of defendant’s motion for partial summary judgment. Inasmuch as the health services underlying plaintiff’s no-fault claim were rendered in New Jersey, defendant may properly rely upon the New Jersey fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6 (see Surgicare Surgical Associates v National Interstate Ins. Co., appeal numbered 15-175, decided herewith). Plaintiff’s objections to the sufficiency of defendant’s proof pertaining to the calculation of the fees under the New Jersey fee schedule are premature, inasmuch as Civil Court made no determination as to the amount reimbursable under that fee schedule. We have considered and rejected plaintiff’s remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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Supreme Court, Appellate Term, First Department, October 8, 2015

Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, affirmed.

APPEARANCES OF COUNSEL

The Law Office of Cohen & Jaffe, LLP, Lake Success (Aaron J. Perretta of counsel), for appellant.

Bruce Somerstein & Associates, P.C., New York City (Donald J. Kavanagh, Jr. of counsel), for respondent.

Order, entered November 17, 2014, affirmed, with $10 costs.

This first-party no-fault action arises from health services rendered by plaintiff provider at its New Jersey location. Plaintiff billed $10,800 for the services (associated with arthroscopic knee surgery), but defendant insurer paid only $5,996.67 on the claim, an amount in accordance with the New Jersey fee schedule. In this action, plaintiff, in effect, seeks the ($4,803.33) difference between the amount charged and payment made by defendant pursuant to the aforementioned fee schedule.

Insurance Department Regulations (11 NYCRR) § 68.6 provides that where a health service reimbursable under Insurance Law § 5102 (a) (1) “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider” (emphasis added). We agree, essentially for reasons stated by Civil Court (46 Misc 3d 736 [2014]), that where a reimbursable health care service is performed outside the State of New York in a jurisdiction that has enacted a medical fee schedule prescribing the permissible charge for the service rendered, an insurer may properly rely on such fee schedule to establish the “prevailing fee” within the meaning of 11 NYCRR 68.6, and demonstrate compliance therewith by payment in accordance with that fee schedule.

Significantly, the Superintendent of Insurance issued an opinion letter stating that the reimbursement amount under section 68.6 “is determined by the permissible cost” in the out-of-state location (Guatemala) (see Ops Gen Counsel NY Ins{**50 Misc 3d at 87} Dept No. 03-04-03 [Apr. 2003]). The Superintendent’s interpretation is entitled to deference, since it is neither irrational nor unreasonable, nor counter to the clear wording of a statutory provision (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]). Indeed, the Superintendent’s reliance upon the “permissible cost” in the foreign jurisdiction is consistent with [*2]the legislative purpose underlying Insurance Law § 5108 and implementing regulations—to “significantly reduce the amount paid by insurers for medical services, and thereby help contain the no-fault premium” (Goldberg v Corcoran, 153 AD2d 113, 118 [1989], appeal dismissed 75 NY2d 945 [1990]).

Applying section 68.6 as interpreted by the Superintendent, the “prevailing fee in the geographic location of a provider” is the “permissible” reimbursement rate authorized in the foreign jurisdiction. Here, the permissible rate authorized in New Jersey for the services rendered by plaintiff is set forth in New Jersey’s no-fault statute and applicable fee schedule. Allowing plaintiff to bill at a rate significantly higher than the permissible charges in the New Jersey fee schedule would undermine the purpose of Insurance Law § 5108, and thwart the core objectives of the No-Fault Law—”to provide a tightly timed process of claim, disputation and payment” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 [2007] [citation omitted]), to “reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]).

Contrary to plaintiff’s claim, the omission of the term “fee schedule” from the regulation does not indicate that its exclusion was intended. Construed within the context of the regulation, whose scope and application broadly extends to all geographic locations outside the State of New York, the legislature’s use of the comprehensive term “prevailing fee,” rather than the less inclusive term “fee schedule,” comports with common sense and the reality that the different jurisdictions have not unanimously adopted a no-fault regime, and/or uniformly based the permissible reimbursement charge upon a medical fee schedule.

We note that since the services here were rendered after April 1, 2013, the defense of excessive fees is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff Apr. 1, 2013]).{**50 Misc 3d at 88}

Plaintiff’s remaining contentions are unpreserved or without merit.

Shulman, J.P., Hunter, Jr., and Ling-Cohan, JJ., concur.

Decided on September 29, 2015

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered July 17, 2014, which, upon reargument, adhered to its prior order entered November 4, 2013 (same court and Judge), denying defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered July 17, 2014, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the plaintiff-provider’s claim 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 his attorney, 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]). Contrary to Civil Court’s determination, defendant submitted competent evidence of the assignor’s nonappearance in the form of an affirmation of the scheduled examining physician and a sworn affidavit of an employee of defendant’s third-party IME scheduler, setting forth facts sufficient 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; Harmonic Physical Therapy v Encompass Home and Auto Ins. Co. 47 Misc 3d 146[A], 2015 NY Slip Op 50733[U][App Term, 1st Dept 2015]).

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]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied [*2]the claims on different grounds (see Unitrin, 82 AD3d at 560).

The order purporting to deny defendant’s motion to reargue addressed the merits and, in doing so, in effect, granted defendant’s motion and, therefore, the appeal taken therefrom is properly before this Court (see Jackson v Leung, 99 AD3d 489, 490 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondents.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered October 20, 2014, which, to the extent appealed from, denied plaintiff’s motion for summary judgment against Tam Medical Supply Corp., Charles Deng Acupuncture, P.C., Action Potential Chiropractic, PLLC, Maiga Products Corporation, Pierre J. Renelique, MD, Maria Masiglia PT, and Gentlecare Ambulatory Anesthesia Services (the answering defendants), unanimously affirmed, with costs.

Plaintiff no-fault insurer moved for summary judgment declaring that its policy does not provide coverage to the individual defendant for the subject accident based on her failure to appear for scheduled examinations under oath (EUO). 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 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]), here defendants-respondents, assignees of the defaulting individual defendant, opposed plaintiff’s summary judgment motion on the ground that plaintiff had not established that it had requested the EUO within the time frame set by the no-fault regulations (see 11 NYCRR 65-3.5 [b]). In its reply, plaintiff failed to supply evidence bearing on whether the EUO had been requested within the appropriate time frame. Accordingly, plaintiff’s motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Sweeny, Saxe and Clark, JJ.

[*1]

Law Offices of Melissa Betancourt, P.C., New York (Melissa Betancourt of counsel), for appellant.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny KHL’s claim because KHL’s assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent’s view that this issue should not be reviewed because it was raised for the first time on appeal. Concur—Acosta, Moskowitz, Richter and Kapnick, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance with the regulation. Moreover, in this case, it seems unfair to reverse the motion court’s granting of summary judgment to plaintiff based on an issue that was not raised in defendant’s opposition to the motion.