In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment,” asserting that, pursuant to CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), the District Court should determine that plaintiffs had established their prima facie case with respect to their first cause of action. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The District Court denied plaintiffs’ motion, and this appeal by plaintiffs ensued.

Plaintiffs’ contention that, pursuant to either CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), they were entitled to “partial summary judgment” determining that they had established their prima facie case with respect to their first cause of action lacks merit. The branch of plaintiffs’ motion seeking “partial summary judgment” pursuant to CPLR 3212 (e) was properly denied as the relief requested would not conclusively dispose of the merits of plaintiffs’ first cause of action or even a part of that cause of action (see CPLR 3212 [e]).

Similarly, relief pursuant to CPLR 3212 (g) is not available to plaintiffs. This provision states that “[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible.” As the court did [*2]not deny, or grant in part, a motion which sought summary judgment conclusively disposing of the merits of plaintiffs’ cause of action, plaintiffs’ motion seeking a limitation of issues of fact for trial pursuant to CPLR 3212 (g) was properly denied (see Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:35; see generally E.B. Metal and Rubber Indus. v County of Washington, 102 AD2d 599 [1984]).

First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U) (App. Term, 2nd, 2010)

In addition, defendant’s argument that the affidavit of plaintiff’s billing manager was insufficient to establish that plaintiff had submitted the claims at issue to defendant lacks merit in light of the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by ” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13Kingsbrook Jewish Med. Ctr., 61 AD3d at 23). [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (

Innovative Chiropractic, P.C. v Progressive Ins. Co., 2010 NY Slip Op 50148(U) (App. Term, 2nd, 2010)

In opposition to plaintiff’s motion, defendant submitted the affidavit of defendant’s litigation representative, which established that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard office practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, said affidavit did not mention the bill for $33.70 for services rendered on January 19, 2007. Although defendant’s counsel asserted that such bill was denied as duplicative, since counsel did not establish that he possessed personal knowledge of the pertinent facts, defendant failed to demonstrate the existence of a triable issue of fact with respect thereto and, thus, plaintiff was properly awarded summary judgment with respect to said bill (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In contrast, defendant did demonstrate that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of the claim at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Consequently, under the circumstances presented herein, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint with respect to the bills totaling $200, which bills defendant had denied based upon the $200 deductible (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50144(U) (App. Term, 2nd, 2010)

In support of defendant’s cross motion for summary judgment, defendant annexed, among other things, an affirmed peer review report by a doctor, an affirmation by a doctor who had performed an independent medical examination and an affidavit by a chiropractor who had performed an independent medical examination. Since the foregoing documents set forth a factual basis and medical rationale for the doctors’ and chiropractor’s opinions that the services, [*2]which are the subject of the claims at issue, were not medically necessary, defendant established, prima facie, a lack of medical necessity for such services (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition to the cross motion, plaintiffs submitted an affirmation from the doctor who had treated plaintiffs’ assignor, which affirmation was apparently missing at least one page. The portion of the affirmation which was contained in the record was insufficient to raise a triable issue of fact as it did not meaningfully refer to, or discuss, the determination of defendant’s doctors and chiropractor (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, defendant’s cross motion, insofar as it sought to dismiss various claims of plaintiffs on the ground of lack of medical necessity, was properly granted (see Exclusive Med. Supply, Inc., 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U]; Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Pan Chiropractic, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U]). Accordingly, the order, insofar as appealed from, is affirmed.

WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 2010 NY Slip Op 50146(U) (App. Term, 2nd, 2010)

Since the “affidavit” was not signed by the purported affiant, it did not constitute evidence in admissible form (see Hargrove v Baltic Estates, 278 AD2d 278 [2000]; Huntington Crescent Country Club v M & M Auto & Mar. Upholstery, 256 AD2d 551 [1998]; New Dorp Ch. 2712 of AARP, Inc. v A.A.W. Travel, Inc., 22 Misc 3d 141[A], 2009 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Comprehensive Mental Assessment & Med. Care v Merchants & Businessmen’s Mut. Ins. Co., 196 Misc 2d 134 [2003]). As the affirmation of plaintiff’s counsel was insufficient to establish plaintiff’s prima facie case (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s motion for summary judgment was properly denied.