Reported in New York Official Reports at Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810)
| Unitrin Advantage Ins. Co. v All of NY, Inc. |
| 2018 NY Slip Op 00810 [158 AD3d 449] |
| February 6, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Unitrin Advantage Insurance Company,
Respondent, v All of NY, Inc., et al., Defendants, and Andrew J. Dowd, M.D., Appellant. |
Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.
Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.
Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.
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, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.
Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).
The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Reported in New York Official Reports at Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50080(U))
| Utopia Equip. Inc. v Ocean Harbor Cas. Ins. Co. |
| 2018 NY Slip Op 50080(U) [58 Misc 3d 149(A)] |
| Decided on January 24, 2018 |
| 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 January 24, 2018
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570688/17
against
Ocean Harbor Casualty Insurance Co., Defendant-Appellant.
Defendant appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated May 9, 2017, which, upon renewal, adhered to a prior order denying its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Debra Rose Samuels, J.), dated May 9, 2017, insofar as appealed from, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida Law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its claims manager and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had tendered a check for premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see Utopia Equip., Inc. v Infinity Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50332[U] [App Term, 1st Dept 2017]; Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Utopia Equip., Inc., v Infinity Ins. Co., 2017 NY Slip Op 50332[U]).
In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Florida law (see Hu-Nam-Nam v Infinity Ins. Co., 2016 NY Slip Op 50391[U]).
We have considered plaintiff’s remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 24, 2018
Reported in New York Official Reports at Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))
| Lotus Acupuncture PC v Hereford Ins. Co. |
| 2018 NY Slip Op 50057(U) [58 Misc 3d 148(A)] |
| Decided on January 18, 2018 |
| 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 January 18, 2018
PRESENT: Shulman, P.J., Ling-Cohan, Gonzalez, JJ.
570400/17
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered August 29, 2014, which granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Jose A. Padilla, Jr., J.) entered August 29, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the governing fee schedule (see Healthy Way Accupucture, P.C. v Clarendon Natl. Ins. Co., 55 Misc 3d 127[A], 2017 NY Slip Op 50345[U] [App Term, 1st Dept 2017]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). The new arguments raised in defendant’s reply papers, even if properly considered (cf. Rozina v Casa 74th Dev. LLC, 89 AD3d 508 [2011]) failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]), and, in any event, revealed additional matters in dispute.
We have considered the parties’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: January 18, 2018
Reported in New York Official Reports at Ameriprise Ins. Co. v Kensington Radiology Group, P.C. (2017 NY Slip Op 51911(U))
against
Kensington Radiology Group, P.C. a/a/o Zoila McBean, Respondent-Respondent.
Petitioner appeals from an order and judgment of the Civil Court of the City of New York, New York County (Erika M. Edwards, J.), entered on or about November 30, 2016, which denied its petition to vacate an arbitration award in favor of respondent, awarding it unpaid no-fault benefits in the principal sum of $3,548.01, and confirmed the arbitration award.
Per Curiam.
Order and judgment (Erika M. Edwards, J.), entered November 30, 2016, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 policy limit of the subject insurance policy was exhausted before petitioner became obligated to pay respondent’s claim.
When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30—day period (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822-823 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65—1.1).
Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, [*2]1st Dept 2011]). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur I concur
Decision Date: December 22, 2017
Reported in New York Official Reports at Bright Med. Supply Co. v Nationwide Ins. Co. of Am. (2017 NY Slip Op 51700(U))
| Bright Med. Supply Co. v Nationwide Ins. Co. of Am. |
| 2017 NY Slip Op 51700(U) [58 Misc 3d 126(A)] |
| Decided on December 18, 2017 |
| 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 18, 2017
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
17-358
against
Nationwide Insurance Company of America, Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered July 9, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Eddie J. McShan, J.), entered July 9, 2013, reversed, with $10 costs, defendant’s motion denied and complaint reinstated.
Defendant-insurer failed to establish its entitlement to summary judgment dismissing the underlying first-party no-fault action based upon plaintiff’s alleged failure to provide defendant with proof of claim. The vague and conclusory assertions by defendant’s claim specialist that defendant had “no record of receiving” the underlying claim, which, it is alleged, was improperly mailed to a certain Florida post office box where defendant “never accepted mail,” were insufficient to make a prima facie showing that the claim was not properly and timely submitted (see SMB Med. P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 146[A], 2015 NY Slip Op 50719[U] [App Term, 1st Dept 2015]; Easy Care Acupuncture PC v MVAIC, 45 Misc 3d 131[A], 2014 NY Slip Op 51645[U] [App Term, 1st Dept 2014]). Conspicuously absent from the moving affidavit was any description of defendant’s “regular practices and procedures in retrieving, opening, and indexing its mail and in maintaining its files on existing claims” (Liriano v Eveready Ins. Co., 65 AD3d 524, 525 [2009]), any indication whether the specified Florida post office box actually belonged to defendant, or even the correct address where the claim should have been sent. Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 18, 2017
Reported in New York Official Reports at Easy Care Acupuncture, PC v Hartford Ins. Co. (2017 NY Slip Op 51471(U))
| Easy Care Acupuncture, PC v Hartford Ins. Co. |
| 2017 NY Slip Op 51471(U) [57 Misc 3d 147(A)] |
| Decided on November 1, 2017 |
| 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 November 1, 2017
PRESENT: Schoenfeld, J.P., Ling-Cohan, Gonzalez, JJ.
570223/17
against
The Hartford Ins. Co., Defendant-Respondent.
Plaintiff, 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 (Gerald Lebovits, J.), dated July 9, 2014, as granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment, in an action to recover no-fault benefits in the sum of $2,255.
Per Curiam.
Order (Gerald Lebovits, J.), dated July 9, 2014, modified to the extent of denying defendant’s motion for summary judgment and reinstating the complaint; as modified, order affirmed, with $10 costs. (see Easy Care Acupuncture, PC v The Hartford Ins. Co., appeal numbered 17-179, decided herewith.)
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 01, 2017
Reported in New York Official Reports at Easy Care Acupuncture, PC v Hartford Ins. Co. (2017 NY Slip Op 51470(U))
| Easy Care Acupuncture, PC v Hartford Ins. Co. |
| 2017 NY Slip Op 51470(U) [57 Misc 3d 147(A)] |
| Decided on November 1, 2017 |
| 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 November 1, 2017
PRESENT: Schoenfeld, J.P., Ling-Cohan, Gonzalez, JJ.
570216/17
against
The Hartford Ins. Co., Defendant-Respondent.
Plaintiff, 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 (Gerald Lebovits, J.), dated July 9, 2014, as granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for summary judgment.
Per Curiam.
Order (Gerald Lebovits, J.), dated July 9, 2014, modified to the extent of denying defendant’s motion for summary judgment and reinstating the complaint; as modified, order affirmed, with $10 costs.
This first party, no-fault action is not susceptible to summary disposition. The evidentiary proof submitted by defendant-insurer in support of its motion for summary judgment, while sufficient to demonstrate that defendant had a “founded belief” that the assignor’s injuries were sustained, if at all, in a staged accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), was insufficient to demonstrate as a matter of law that the injuries did not arise out of an insured incident so as to warrant summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th and 10th Jud Dists 2009]; Capri Med., P.C. v Progressive Cas. Ins. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51158[U] [App Term, 2nd and 11th Jud Dists 2007]). In particular, the affidavit of defendant’s investigator, who relied upon certain inconsistencies among the statements of the vehicle’s three occupants regarding events of the day of the collision, rather than the events of the collision itself, and other “red flags” common in staged accident cases, raises issues of fact that should be explored at trial (see Martinez v Pioneer Transp. Corp., 48 AD3d 306 [2008]; Oliverio v Lawrence Pub. Schools, 23 AD3d 633 [2005]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: November 01, 2017
Reported in New York Official Reports at Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U))
against
Global Liberty Insurance Company of New York, Defendant-Appellant.
Defendant appeals from a judgment of the Civil Court of the City of New York, Bronx County (Shawn T. Kelly, J.), entered August 17, 2016 after a nonjury trial, in favor of plaintiff in the sum of $2,126.66.
Per Curiam.
Judgment (Shawn T. Kelly, J.), entered August 17, 2016, reversed, with $30 costs, and judgment directed in favor of defendant dismissing the complaint.
In this action by a provider to recover assigned first- party no-fault benefits, the parties stipulated that the only issue for trial would be whether the services rendered to plaintiff’s assignor on April 12, 2011 were medically necessary. Plaintiff also stipulated to the expertise of Dr. Vincent Notabartolo, defendant’s peer review doctor.
At trial, Dr. Notabartolo testified that in his opinion the services provided by plaintiff, specifically, electromyography and nerve conduction velocity diagnostic testing, were not medically necessary because there was no indication of a “diagnostic dilemma” that would warrant such testing. The witness explained that the assignor was not neurologically deteriorating and was responding to chiropractic treatment. Dr. Notabartolo’s peer review report reaching the same conclusion was also stipulated into evidence.
Dr. Notabartolo’s testimony, which the court expressly found credible, demonstrated a factual basis and a medical rationale for his determination that there was no medical necessity for the services at issue here (see New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co., 52 Misc 3d 139[A], 2016 NY Slip Op 51125[U] [App Term, 2d, 11th and 13th Jud Dists 2016]). Thus, the burden shifted to plaintiff to present his own evidence of medical necessity (see West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2nd and 11th Jud Dists 2006]). Plaintiff, however, called no witnesses to rebut defendant’s evidence. In these circumstances, plaintiff was not entitled to judgment in its favor (see All Is. [*2]Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 142[A], 2011 NY Slip Op 52227[U] [App Term, 9th and 10th Jud Dists 2011]; Specialty Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th and 10th Jud Dists 2010]). Accordingly, we reverse and direct entry of judgment in favor of defendant dismissing the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: October 26, 2017
Reported in New York Official Reports at Country-Wide Ins. Co. v Gotham Med., P.C. (2017 NY Slip Op 07538)
| Country-Wide Ins. Co. v Gotham Med., P.C. |
| 2017 NY Slip Op 07538 [154 AD3d 608] |
| October 26, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Country-Wide Insurance Company et al.,
Respondents, v Gotham Medical, P.C., Appellant. |
The Russell Friedman Law Group, Lake Success (Charles Horn of counsel), for appellant.
Thomas Torto, New York, respondents.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered November 25, 2015, which, inter alia, granted plaintiffs’ motion for summary judgment declaring that defendant is not entitled to no-fault insurance benefits from them with respect to the 31 claims at issue, unanimously affirmed, with costs.
The refusal by defendant’s principal, Dr. Alexandre Scheer, to answer questions at an examination under oath (EUO) about his compliance with a consent agreement and order he had entered into with the Office of Professional Medical Conduct (OPMC) constituted a failure to comply with the request for an EUO, a condition precedent to coverage under the insurance policy (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]).
Defendant argues that plaintiffs’ questions about Scheer’s compliance with the OPMC order were improper because the order is confidential. Defendant relies on Public Health Law § 230 (17), which provides that where an investigation of suspected professional misconduct by a physician reveals evidence insufficient to constitute misconduct but reasonable cause exists to believe the physician is unable to practice medicine with reasonable skill and safety, the physician may be ordered to have his or her practice monitored by another physician approved by OPMC, and any such order shall be kept confidential. However, this provision is inapplicable. Scheer entered into a consent agreement and order in which he did not contest the charge of fraudulent practice of medicine brought against him and he agreed to a penalty of a 12-month suspension of his license to practice medicine, a stay of the suspension, and, pursuant to Public Health Law § 230-a (penalties for professional misconduct), a 60-month term of probation, of which a monitor of his practice was only one condition. Moreover, the consent agreement and order states expressly that it shall be a public document.
Defendant also argues that plaintiffs had no independent right to determine whether Scheer was in compliance with the consent agreement and order and that any determination by them of noncompliance would not render him “unlicensed” to practice medicine. This argument is unavailing. The consent agreement and order provides that any medical practice in violation of the term permitting Scheer to practice only when monitored “shall constitute the unauthorized practice of medicine.” An unlicensed health care provider is ineligible to receive no-fault reimbursement (11 NYCRR 65-3.16 [a] [12]), and an insurer may make a good faith determination that a medical provider assignee seeking no-fault benefits is ineligible to receive such benefits (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]).
Defendant waived the defenses of res judicata and award and arbitration (CPLR 3211 [e]; see Mayers v D’Agostino, 58 NY2d 696 [1982]). While the arbitral awards in its favor were not [*2]issued until after it had filed its answer in this action, there is no indication on the record before us that defendant ever moved to amend its answer to assert either of those defenses. Concur—Tom, J.P., Manzanet-Daniels, Mazzarelli, Oing and Singh, JJ. [Prior Case History: 50 Misc 3d 712.]
Reported in New York Official Reports at Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. (2017 NY Slip Op 51170(U))
| Acupuncture Approach, P.C. v Tri State Consumer Ins. Co. |
| 2017 NY Slip Op 51170(U) [57 Misc 3d 129(A)] |
| Decided on September 19, 2017 |
| 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, 2017
PRESENT: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.
570145/17
against
Tri State Consumer Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Andrea Masley, J.), entered June 27, 2013, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 97039; as modified, order affirmed, with $10 costs.
Triable issues of fact are raised as to whether defendant-insurer properly denied plaintiff’s no-fault claim billed under CPT code 97039, thus precluding summary judgment dismissing this claim. Defendant’s submissions failed to establish prima facie its contention that the service is not reimbursable because it is a “physical medicine modality” and “outside the provider’s specialty” (see TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U][App Term, 1st Dept 2015]; see also Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co., 54 AD3d 996 [2008]). The remaining claims at issue on appeal were properly dismissed as premature, since it is undisputed that plaintiff failed to respond to the duly issued verification requests (see St. Vincent Med. Care, P.C. v Country Wide Ins. Co., 80 AD3d 599, 600 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: September 19, 2017