Vinings Spinal Diagnostics v Progressive Cas. Ins. Co., 2008 NY Slip Op 51468(U) (App. Term, 2d)
The court erred in granting defendant’s cross motion for summary judgment dismissing the complaint because there is an issue of fact as to whether defendant’s denial of claim form was [*2]timely. Although defendant contends that its denial of claim form was timely because it was issued within 30 days of being received at the proper claims processing office (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), its affiant did not set forth facts sufficient to prove that the address plaintiff used was the improper address. As a result, defendant failed to demonstrate that the 30-day claim determination period was extended and, therefore, failed to establish its prima facie entitlement to summary judgment. We do not pass on the issue of medical necessity. Accordingly, defendant’s cross motion for summary judgment dismissing the complaint is denied.
Med-Tech Prod., Inc. v Liberty Mut. Ins. Co., 2008 NY Slip Op 51469(U) (App. Term, 2d)
In the instant case, plaintiff’s moving papers were insufficient to establish the mailing of the appended NF-3 form to defendant. However, inasmuch as defendant, in its opposition papers, acknowledged receipt of the claim on December 30, 2004, both in the affidavit of defendant’s claims representative as well as in its denial of claim form, the deficiency in plaintiff’s moving papers concerning proof of mailing of the claim in question was cured (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). The burden, therefore, shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
City Wide Social Work v NY Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51470(U) (App. Term, 2d)
In the instant case, the bald conclusory assertion by plaintiff’s counsel that an examination before trial of the assignor’s treating physician would be useless in proving defendant’s defense was insufficient to establish plaintiff’s entitlement to a protective order (see Dynamic Med. Communications v Norwest Trade Printers, 257 AD2d 524 [1999]; Ocean to [*2]Ocean Seafood Sales v Trans-O-Fish & Seafood Co., 138 AD2d 265 [1988]; Boylin v Eagle Telephonics, 130 AD2d 538 [1987]). Accordingly, the court below did not improvidently exercise its discretion in granting defendant’s motion to the extent of compelling plaintiff to produce plaintiff’s assignor’s treating physician for an examination before trial and denying plaintiff’s cross motion for a protective order.
A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 2008 NY Slip Op 51471(U) (App. Term, 2d)
In the instant case, the admissions sought by plaintiff in items 1 and 3, regarding the genuineness of defendant’s NF-10 denials, are proper in light of this court’s decision in Bajaj v General Assur. (id.). Similarly, no protective order is necessary with regard to the admissions [*2]sought by plaintiff in items 2, 5 and 6, that there has been no payment made with regard to a particular bill and that defendant received the two claim forms referenced in the attached denials, because these admissions had already been made by defendant in the attached denial of claim forms. In view of the foregoing, it was an improvident exercise of the lower court’s discretion to grant defendant’s motion for a protective order striking items 1, 2, 3, 5 and 6 of plaintiff’s notice to admit.
Item 4, seeking an admission that a sum remains outstanding, is improper in that it is imprecisely worded and could be read as a conclusion of an ultimate fact (see Villa v New York City Hous. Auth., 107 AD2d 619 [1985]). Item 7 seeks an admission that defendant received an attached claim form on or about a specified date, which fact defendant had not previously acknowledged through its issuance of a statutory denial of claim form. In the absence of such prior acknowledgment by defendant, that defendant received such claim form is “an ultimate or conclusory fact which [is] an integral part of the plaintiff’s prima facie case”, and should not be determined on the basis of a notice to admit (Scavuzzo v City of New York, 47 AD3d 793, 795 [2008]; see e.g. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).
Upon our review of the record and the arguments raised on appeal, we do not find that it was an improvident exercise of the lower court’s discretion to strike item 8 of plaintiff’s notice to admit, seeking an admission that defendant received plaintiff’s assignment of benefits on or about a specified date (see Lolly, 45 AD3d at 537).
Accordingly, we modify the order by providing that defendant’s motion for a protective order is granted only to the extent of striking items 4, 7 and 8 in plaintiff’s notice to admit.
Rj Professional Acupuncturist, P.C. v MVAIC, 2008 NY Slip Op 51472(U) (App. Term, 2d)
In New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429, 429-430 [2004]), the Appellate Division, Second Department,
“reject[ed MVAIC's] contention that the 30-day time requirement contained in 11 NYCRR 65.15 (g) (3) does not apply to it until after it has qualified’ an injured party.” Notwithstanding the foregoing, the arbitrator held that RJ’s claims were premature because RJ’s assignor did not provide verification which MVAIC requested, in order to determine whether RJ’s assignor was eligible for no-fault benefits from MVAIC. However, since MVAIC did not request verification until more than one year after it received petitioner’s claims, the 30-day claim determination period was not tolled and petitioner’s claims were overdue (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 42 AD3d 277, 280 [2007]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], supra; Ocean Diagnostic Imaging P.C. v Travelers Indem. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50644 [App Term, 2d & 11th Jud Dists 2005]). Consequently, the court should have granted the petition.Since the arbitrator never ruled on the merits of petitioner’s claims, the matter must be remitted to the arbitrator for a determination upon them (see Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co., 44 AD3d 857 [2007]).
V.S. Medical Services, P.C. v New York Cent. Mut. Ins., 2008 NY Slip Op 51473(U) (App. Term, 2d)
In support of defendant’s motion to dismiss the complaint, defendant did not offer the affidavit of a person with personal knowledge of the facts. The affirmation by defendant’s attorney, stating that plaintiff failed to produce plaintiff’s physician for the deposition, was not based on personal knowledge of the facts which he alleged, and, as such, is based upon unsubstantiated hearsay and has no probative value (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Said v Abarn Equip. Corp., 195 Misc 2d 451, 452 [2002]). Accordingly, defendant’s motion was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Inc. Co., 35 AD3d 720 [2006]). [*2]
With respect to the court’s award to plaintiff of costs in the sum of $50, we note that CCA 1906 (a) vests the court with the discretion to impose costs not in excess of $50 upon the granting or denying of a motion. Under the circumstances presented, the imposition of costs was not an improvident exercise of the court’s discretion (see e.g. Bronxborough Med., P.C. v Travelers Ins. Co., 16 Misc 3d 132[A], 2007 NY Slip Op 51485[U] [App Term, 2d & 11th Jud Dists 2007]).