Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered February 21, 2019. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT code 99212; claims for services rendered on June 2, 2014, June 9, 2014, June 10, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015; and claims for services purportedly rendered on October 6, 2014 ($71.40), October 6 to October 22, 2014 ($334.60), and October 13 to October 22, 2014 ($394.44).

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205, is denied, and, upon a search of the record, summary judgment is granted to plaintiff upon that claim in the principal sum of $97.14; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff [*2]appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT code 99212, on the ground that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule; claims for services rendered on June 2, 2014, June 9, 2014, June 10, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015, on the ground that defendant had paid those claims in full; and claims for services purportedly rendered on October 6, 2014 ($71.40), October 6 to October 22, 2014 ($334.60), and October 13 to October 22, 2014 ($394.44), on the ground that defendant had not received those claims.

Defendant supported its motion with affidavits by its claim specialist and an independent certified professional coder, which affidavits were sufficient to establish, prima facie, with respect to the claims for services billed under CPT code 99212, that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. However, defendant’s moving papers establish that defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205. As set forth in the affidavits defendant submitted from its claim specialist and the certified professional coder, plaintiff was entitled to $97.14 for that claim, which defendant had denied in full. Consequently, upon a search of the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that plaintiff is entitled to summary judgment upon that claim in the principal sum of $97.14.

With respect to the bills for services rendered on June 2, 2014, June 9, 2014, July 15, 2014, November 18, 2014, December 31, 2014, March 30, 2015, May 28, 2015, and July 29, 2015, defendant demonstrated, through the submission of checks to plaintiff which plaintiff had endorsed, that defendant had paid those bills in full, and plaintiff failed to raise a triable issue of fact with respect thereto.

With respect to the bills for services purportedly rendered on October 6, 2014, October 6 to October 22, 2014, and October 13 to October 22, 2014, the affidavit by defendant’s claim specialist contained more than a mere conclusory denial of receipt of the claim forms allegedly mailed to defendant (cf. Top Choice Med., P.C. v GEICO Gen. Ins. Co., 33 Misc 3d 137[A], 2011 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]) and sufficiently established, prima facie, that defendant had not received those claim forms (see Matter of Government Empls. Ins. Co. v Morris, 95 AD3d 887 [2012]). In the absence of a sworn statement sufficient to demonstrate, prima facie, plaintiff’s submission of the claim forms at issue, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see Natural Therapy Acupuncture, P.C. v Interboro Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*3]Dists 2012]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers’ Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for services rendered on June 10, 2014, which was billed under CPT code 99205, is denied, and, upon a search of the record, summary judgment is granted to plaintiff upon that claim in the principal sum of $97.14.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 15, 2022

Decided on July 1, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on July 1, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated March 19, 2021. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to amend the caption and for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Defendant scheduled EUOs after receipt of the claims at issue here. To establish its prima facie entitlement to summary judgment dismissing the complaint, defendant had to demonstrate, as a matter of law, that it twice duly demanded an EUO, that the assignor twice failed to appear, and that defendant issued a timely denial as to each claim after the second failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Quality Health [*2]Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

In its motion, defendant set forth three scheduled EUO dates: June 8, 2018, June 25, 2018 and July 10, 2018. Defendant’s motion papers assert that the June 8, 2018 EUO was mutually rescheduled, which, if such rescheduling “occur[red] prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, defendant failed to demonstrate that fact as a matter of law (cf. Sovereign Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Indeed, defendant’s denial of claim forms list all three dates as failures to appear. As defendant denied the claims on July 27, 2018, more than 30 days after June 25, 2018, the second scheduled EUO date (see 11 NYCRR 65-3.8 [c]), and as defendant did not establish that the first EUO had been mutually rescheduled, an issue of fact remains as to whether defendant’s denials were timely and, thus, whether defendant is precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), entered September 17, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

The affidavits defendant submitted in support of its motion for summary judgment demonstrated, prima facie, that independent medical examination (IME) scheduling letters had been timely and properly mailed (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 71 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, contrary to defendant’s contention, the affidavits from the doctors who were scheduled to perform the IMEs did not establish that [*2]they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, defendant failed to establish its entitlement to judgment, as a matter of law, dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for IMEs.

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

Bryan Cave, LLP (Jennifer M. Jordan of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered November 19, 2019. The order, insofar as appealed from, denied defendant’s motion for partial summary judgment dismissing the second and third causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for partial summary judgment dismissing the second and third causes of action on the ground that plaintiff’s assignor had failed to appear at duly scheduled independent medical examinations (IMEs).

In support of its motion, defendant submitted an affidavit by an employee of Empire Stat Medical Review, P.C., which had been retained by defendant to schedule IMEs. This affidavit demonstrated that the IME scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant [*2]also demonstrated that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage (see id. at 722). Defendant’s motion further demonstrated that defendant had timely denied the claims on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, as plaintiff’s assignor’s bald conclusory denial of receipt was insufficient to rebut the presumption that the IME scheduling letters were received (see CIT Bank N.A. v Schiffman, 36 NY3d 550 [2021]; Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]; Tyorkin v Repwest Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Triangle R, Inc. v Tri-State Consumer Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50256[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, defendant was entitled to partial summary judgment dismissing the second and third causes of action.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion for partial summary judgment dismissing the second and third causes of action is granted.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

[*1]

Lawrence N. Rogak, LLC, Oceanside, NY, for appellant.

Law Offices of Michael H. Joseph, PLLC, White Plains, NY (Clifford S. Nelson of counsel), for respondent.

In an action to recover first-party no-fault benefits under a policy of automobile insurance, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2017, and (2) a judgment of the same court, dated October 26, 2017. The order granted the plaintiff’s motion for summary judgment in the principal sum of $44,573.86. The judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $44,573.86.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In 2008, a vehicle operated by the plaintiff and insured by the defendant, Merchants Mutual Insurance Company, was struck in the rear by a sanitation truck owned by the City of White Plains. The plaintiff subsequently underwent surgery to remove his L5-S1 disc and replace it with an artificial lumbar disc. After the defendant denied the subject claims on the ground that the surgery was not medically necessary, the plaintiff commenced the instant action to recover first-party no-fault benefits. The defendant answered the complaint and the plaintiff later moved for summary judgment in the principal sum of $44,573.86, representing unpaid first-party no-fault benefits under the insurance policy. The defendant opposed the motion. The Supreme Court granted the plaintiff’s motion and issued a judgment in favor of the plaintiff in the principal sum of $44,573.86. The defendant appeals.

“The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments [*2]to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle’ ” (Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18 [1994], quoting Insurance Law § 5102 [b]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 47 [2015]). The no-fault law defines “basic economic loss” (Insurance Law § 5102 [a]) as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . [and] surgical . . . services” (id. § 5102 [a] [1] [i]) as well as loss of earnings from work. Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1; see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).

A plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006]).

In support of his motion, the plaintiff submitted, inter alia, the disputed claims, the defendant’s form denials, the affidavit of his surgeon, Richard Peress, and the affidavit of Christine Taylor, assistant director of patient accounts for Phelps Memorial Hospital (hereinafter the hospital).

The plaintiff demonstrated, prima facie, that the prescribed statutory billing forms relative to the medical services provided by Peress were mailed and received, and that the defendant failed to pay or validly deny the claims within the permissible 30 days (see Insurance Law § 5102 [a] [1]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Hobby v CNA Ins. Co., 267 AD2d 1084 [1999]; see also DeGiorgio v Racanelli, 136 AD3d 734 [2016]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]). In opposition, the defendant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the claimed benefits were properly denied on the ground of lack of medical justification (see 11 NYCRR 65-3.8 [b] [4]).

Contrary to the defendant’s contention, the plaintiff had standing to pursue his claims for no-fault benefits (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626 [2020]).

Given that the amount of the outstanding no-fault benefits relative to the medical services provided by Peress exceeds the principal sum awarded in the judgment, we need not reach the parties’ remaining contentions, including whether the plaintiff was entitled to no-fault benefits relative to the medical services provided by the hospital.

Accordingly, we affirm the judgment. Barros, J.P., Iannacci, Chambers and Christopher, JJ., concur.

Decided on June 17, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 17, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Zaklukiewicz, Puzo & Morrissey, LLP (William E. Morrissey, Jr. of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated February 25, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted an affidavit and documentary evidence which established, prima facie, its lack of coverage defense (see Tam Med. Supply Corp. v Omni Indem. Co., 48 Misc 3d 142[A], 2015 NY Slip Op 51294[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 44 Misc 3d 136[A], 2014 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Vincent Med. Servs., P.C. v Omni Indem. Co., 42 Misc 3d 142[A], 2014 NY Slip Op 50224[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Great Health Care Chiropractic, P.C. v Omni Indem. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51450[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As plaintiff failed to demonstrate the existence of a triable issue of fact, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the order is affirmed.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.