[*1] Decided on October 28, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570509/13. October 2013 Term

Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.

MDJ Medical, P.C., NY County Clerk’s No. a/a/o Small Alison,570509/13 Plaintiff-Respondent, against Calendar No. 13-283 New York Central Mutual Insurance Company, Defendant-Appellant. Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. 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 timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not 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 at 560). We note that “when [plaintiff’s] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (id.). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 28, 2013

OCTOBER 28, 2013

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, Bronx County (Fernando Tapia, J.), entered October 5, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered October 5, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. 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 timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not 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 at 560). We note that “when [plaintiff’s] assignor[] failed to appear for the requested IMEs, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (id.).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 28, 2013

[*1] Decided on October 15, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570160/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 24, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 24, 2012, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the chiropractic services underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013

[*1] Decided on October 7, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570292/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 07, 2013

[*1] Decided on August 23, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman,JJ
570903/12.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Gerald Lebovits, J.), entered July 9, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Gerald Lebovits, J.), entered July 9, 2012, insofar as appealed from, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the physical therapy and related services underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 23, 2013

[*1] Decided on July 19, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Schoenfeld, JJ
570928/12.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Elizabeth A. Taylor, J.), dated November 23, 2010, which denied its motion to dismiss plaintiff’s action as time-barred.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated November 23, 2010, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Even accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as required on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Island ADC, Inc., 49 AD3d 815 [2008]), we conclude that this action for assigned first-party no-fault benefits is time-barred. The complaint alleges that “health services” were rendered to the assignor on January 9, 2003, that a bill for such services was “timely received” by defendant insurer, and that defendant failed to properly deny the bill within 30 days or request additional verification. Inasmuch as plaintiff was required to submit the proof of claim no later than 45 days after the services were rendered (see 11 NYCRR 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-590 [2011]), and the claim accrued 30 days thereafter (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]), this action, commenced on September 18, 2009, is barred by the governing six-year statute of limitations (id; Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 32 Misc 3d 17 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 19, 2013

[*1] Decided on July 2, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Hunter, Jr., J.P., Torres, Shulman, JJ
570270/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 10, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 10, 2011, 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 judgment as a matter of law by submitting, inter alia, a chiropractor’s sworn peer review report which set forth a factual basis and medical rationale for his stated conclusion that the medical services giving rise to plaintiff’s claim for first-party no-fault benefits were not medically necessary. Notably, defendant’s peer reviewer explained in some detail that the manipulation under anesthesia (“MUA”) procedures performed at plaintiff’s facility were not medically necessary according to the standards of protocol followed by the National Academy of MUA physicians. In opposition, plaintiff failed to raise a triable issue. The unsworn operative reports of plaintiff’s principal submitted with plaintiff’s attorney’s affirmation were without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]). In any event, even if considered, the conclusory, fill-in-the-blanks findings set forth therein were insufficient to withstand summary judgment (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concurI concur.
Decision Date: July 02, 2013

[*1] Decided on May 21, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570228/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered July 31, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ruben Franco, J.), entered July 31, 2012, affirmed, with $10 costs.

The action, seeking recovery of first-party no-fault benefits, is not ripe for summary disposition. The defendant insurer failed to establish, prima facie, that its requests for verification in the form of an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. Defendant’s EUO letters of July 18, 2006 and August 2, 2006 preceded its receipt of plaintiff’s August 10, 2006 claim, and thus did not trigger the tolling of the 30-day period (see Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., _ AD3d _, 2013 NY Slip Op 02390 [2nd Dept 2013]). Moreover, triable issues are raised as to whether, assuming defendant properly mailed its August 26, 2006 EUO request, it made the required follow-up request for verification (see 11 NYCRR 65-3.6[b]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013

[*1] Decided on April 18, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
571041/12.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered August 15, 2012, as denied, in part, its motion for summary judgment dismissing the complaint or, alternatively, to compel discovery.

Per Curiam.

Order (Raul Cruz, J.), entered August 13, 2012, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto.

In opposition to the defendant-insurer’s prima facie showing of entitlement to judgment dismissing plaintiff’s no-fault claims in connection with services rendered from May 11, 2009 through July 9, 2009, plaintiff failed to raise a triable issue of fact. The affidavit of plaintiff’s principal, while explaining in general terms the office procedure followed by plaintiff in “log[ging]” verification requests into its “billing program,” failed to disclose the results of any search the affiant may have made of the billing program to ascertain whether the verification letters shown to have been sent by defendant had been logged in by plaintiff as received (see Comprehensive Neurological Servs., PA v Tri-State Consumer Ins., 35 Misc 3d 144[A], 2012 NY Slip Op 50950[U] [App Term, 1st Dept 2012]). Plaintiff’s bald denial of receipt of defendant’s verification requests was insufficient on this record to raise a triable issue.

Defendant also made a prima facie showing of entitlement to summary judgment dismissing plaintiff’s claims for services rendered from July 20, 2009 through September 10, 2009. In this regard, defendant submitted, inter alia, an independent medical examination report of its examining acupuncturist, which set forth a factual basis and medical rationale for the acupuncturist’s stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment.

In opposition, plaintiff failed to raise a triable issue, relying largely on an affidavit of its principal, who, while broadly describing his approach to the practice of traditional Chinese medicine, failed to set forth any allegations as to the assignor’s claimed injuries or the medical [*2]necessity of the acupuncture treatments here at issue (see generally CPT Medical Services, P.C. v New York Cent. Mut, Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 18, 2013

[*1] Decided on April 16, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
.

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered October 15, 2012, as denied its motion for summary judgment dismissing the complaint or, alternatively, to compel discovery.

Per Curiam.

Order (Andrea Masley, J.), entered October 15, 2012, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

In opposition to the defendant-insurer’s prima facie showing that the assignor’s treated medical condition was not causally related to the underlying motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999]), plaintiff failed to raise a material issue requiring a trial of its claim for assigned no-fault first-party benefits. The bare bones affidavit filed by plaintiff’s principal, an orthopedist who performed the surgical procedure giving rise to this no-fault action, was insufficient to defeat summary judgment. The affiant failed to set forth a factual basis for his single-sentence conclusion on the critical causation issue, and did not address, let alone rebut, the contrary findings made by defendant’s medical experts. We note plaintiff’s failure to file a respondent’s brief on appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2013

[*1] Decided on April 16, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Hunter, Jr., Torres, JJ
571112/12.

Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 19, 2012, which denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 19, 2012, insofar as appealed from, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. The peer review report and accompanying affidavit submitted by defendant’s chiropractor failed to set forth a factual basis or medical rationale for his stated conclusion that the medical supplies here at issue were not medically necessary. The peer reviewer’s bald assertion that plaintiff’s assignor’s (voluminous) medical file lacked “useful/supportive information” — without essaying to explain what medical records, if any, were missing from the file — was insufficient to meet defendant’s prima facie burden of eliminating all triable issues as to medical necessity. In any event, plaintiff’s submission of an affidavit prepared by the assignor’s treating chiropractor, specifying the assignor’s medical conditions and describing the intended benefits of each of the medical supplies prescribed, was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2013