Decided on May 30, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, 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]). 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 the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Blodnick Fazio & Associates, P.C., Garden City (Edward K. Blodnick of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 24, 2012, which granted the motions of defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

Where an amended pleading is submitted in response to a pre-answer motion to dismiss, the provident course of action for the motion court is to include the amended complaint in the record on the pending motion, which should then be granted or denied based on the sufficiency of the amended pleading (see e.g. Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07 [2d ed 2011]).

Here, the amended complaint, like the original complaint, was insufficient to state a cause of action upon which relief could be granted. Plaintiffs asserted that defendant Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements. Allstate plainly has that right (see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Plaintiffs also attempted to assert causes of action against Allstate’s counsel, defendants Robert P. Macchia and Mehmet P. Gokce for undertaking a legitimate investigation at Allstate’s behest. It is well settled that no [*2]such cause of action lies (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept 1976]).

We have considered the plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 33515(U).]

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 4, 2013, which denied its motion for entry of a default judgment against defendants.

Per Curiam.

Order (Andrea Masley, J.), entered June 4, 2013, affirmed, without costs.

The plaintiff insurer commenced the underlying actions, consolidated below, seeking declaratory relief and review by way of trial de novo of five separately issued master arbitrator’s awards issued in favor of defendant medical providers on their claims for first-party no-fault benefits. While Civil Court had jurisdiction to entertain the lawsuit (see CCA 212-a; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]), we sustain the dismissal of the consolidated actions on the merits. De novo review of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is in the amount of $5,000 or more, in which case the dispute is subject to a “plenary judicial adjudication” pursuant to Insurance Law § 5106(b) (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987]). Since none of the master arbitrator’s awards giving rise to these actions met or exceeded the statutory threshold sum of $5,000, de novo review was unavailable, and the individual complaints served by plaintiff seeking such relief did not state a viable cause of action. In this posture, the court was warranted in dismissing the consolidated actions upon plaintiff’s motion for entry of a default judgment (see generally Aprea v New York State Bd. of Elections, 103 AD3d 1059, 1061 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2014

—[*1] Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellant.

Crisci, Weiser & McCarthy, New York (Jayashri C. Srinivasan Cuffey of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about January 7, 2013, which granted defendant’s cross motion to dismiss the complaint, and denied plaintiff’s motion for summary judgment on the issue of liability, unanimously affirmed, with costs.

11 NYCRR 65-3.11 (a) provides, in relevant part, for the payment of no-fault benefits “directly to the applicant . . . or, upon assignment by the applicant . . . to [the] providers of health care services.” Plaintiff Aetna Health Plans is not a “health care provider” under the statute, but rather a health care insurer (see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 62 [2d Dept 2012] Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]).

While the No-Fault Law provides a limited window of arbitration between no-fault insurers (see Insurance Law §§ 5105, 5106 [d] Eagle Ins. Co. v ELRAC, Inc., 291 AD2d 272 [1st Dept 2002]), the statutory language does not pertain to a health insurer such as Aetna. Thus, Aetna cannot maintain a claim against defendant under the principle of subrogation (see Health Ins. Plan of Greater N.Y. v Allstate Ins. Co., 2007 NY Slip Op 33925[U] [Sup Ct, NY County 2007]). Nor may Aetna assert a breach of contract claim against Hanover, [*2]since it is not in privity of contract with Hanover, and there has been no showing that it was an intended third-party beneficiary of the contract. Concur—Tom, J.P., Acosta, Freedman and Kapnick, JJ. [Prior Case History: 2013 NY Slip Op 33221(U).]

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from those portions of an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered September 5, 2013, which denied its motion for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its principal for deposition, and upon searching the record, granted plaintiff summary judgment in the principal sum of $784.40.

Per Curiam.

Order (Joseph E. Capella, J.), entered September 5, 2013, insofar as appealed from, modified by vacating the grant of summary judgment to plaintiff; as so modified, order affirmed, without costs.

The motion court improperly searched the record and awarded summary judgment to plaintiff on its claim for first-party no-fault benefits, in view of the conflicting medical expert opinions adduced by the parties as to the medical necessity of the acupuncture services sued for and plaintiff’s own acknowledgment below that issues of fact exist “warranting a trial” on the issue of medical necessity.

However, we find no abuse of discretion in the denial of defendant’s motion to compel the deposition of plaintiff’s treating provider on this record, which contains an affidavit from the provider explaining the rationale for the underlying acupuncture services, and where defendant failed to set forth an “articulable need” for the provider’s deposition (see Ralph Med. Diagnostics, PC v Mercury Cas. Co., ____ Misc 3d ____, 2014 NY Slip Op 24054 [App Term, 1st Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 09, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered August 1, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered August 1, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the record reflects that defendant properly paid a portion of the submitted claims for acupuncture services pursuant to the workers’ compensation fee schedule (see Akita Medical Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U] {App Term, 1st Dept 2013]), triable issues remain with respect to the claims denied outright by defendant on the stated basis that the CPT codes billed under were “outside the scope of the provider’s specialty.” Even assuming, without deciding, that defendant’s affiant, a claims examiner, may fairly be considered an expert qualified to render an opinion on such matters (but cf. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21-22 [2009]), the conclusory assertions set forth in her moving affidavit were insufficient to eliminate all triable issues of fact concerning the provider’s “specialty.” Defendant’s failure to meet that evidentiary burden mandates the denial of its motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 21, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about November 3, 2010, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $3,045.08.

Per Curiam.

Judgment (Raul Cruz, J.), entered on or about November 3, 2010, affirmed, with $25 costs.

We agree that defendant failed to meet its evidentiary burden of establishing the lack of medical necessity of the diagnostic testing giving rise to plaintiff’s claim for assigned first-party no-fault benefits. The trial court was entitled to reject the sparse and confusing opinion testimony offered by defendant’s medical expert — which reflected the expert’s confessed lack of knowledge as to the assignor’s medical condition at the time of testing — even though the expert’s testimony was unopposed (see Chabourne & Parke, LLP v HGK Assets Mgt., Inc., 295 AD2d 208, 209 [2002]). Any misstatement in the court’s written decision as to the source of the medical records reviewed by defendant’s expert does not serve to undermine the court’s otherwise proper resolution of the matter.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 19, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. D’Auguste, J.), entered March 4, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. D’Auguste, J.), entered March 4, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto. The Clerk is directed to enter judgment accordingly.

Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). 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 [2013] see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 27, 2014

—[*1] John C. Buratti & Associates, New York (Julie M. Sherwood of counsel), for appellant.

Marshall & Marshall, PLLC, Jericho (Jeffrey Kadushin of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about October 3, 2012, which, after a framed issue hearing, found that defendant Farmers Insurance Company is obligated to provide plaintiff with coverage for the subject accident, unanimously affirmed, with costs.

Mandatory arbitration is the sole available remedy pursuant to 11 NYCRR 65-4.11 and Insurance Law §§ 5105 and 5221 (b) (6) in order to determine issues of coverage between insurance carriers and defendant Motor Vehicle Accident Indemnification Corporation (MVAIC). The fact that appellant submitted its “contentions,” which included the affirmative defense of no coverage due to cancellation of the policy, establishes that it was aware of the arbitration proceeding, and yet did not appear, seek an adjournment to present the necessary documentation regarding the cancellation, or file a petition to vacate the arbitration award pursuant to CPLR 7511. Thus, appellant had a “full and fair opportunity to contest the decision” (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184, 192 [1977] [emphasis omitted]), and failed to do so.

The issue in both actions was the alleged cancellation of the insurance policy, which was decided by the arbitrator. The fact that plaintiff now seeks bodily injury benefits does not alter [*2]this result, as there is no evidence that the parties arbitrated under an agreement to limit the preclusive effect of the arbitration decision (cf. Kerins v Prudential Prop. & Cas., 185 AD2d 403, 404 [3d Dept 1992]). Concur—Tom, J.P., Friedman, DeGrasse, Feinman and Gische, JJ.

—[*1] Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Harlan S. Budin of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered April 30, 2012, which granted the petition to vacate the arbitration awards, and remanded the matter for a new arbitration before a new arbitrator, unanimously reversed, on the law, without costs, and the arbitration awards reinstated.

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled law, and therefore should have been confirmed. Respondent insurer’s disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-2.4 [c]).

We have considered the parties’ remaining arguments and find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Manzanet-Daniels and Gische, JJ.