Downtown Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51552(U) (App. Term, 2d)

“Where a plaintiff’s noncompliance with a disclosure order does not result in a dismissal with prejudice, or an order of preclusion or summary judgment in favor of defendant so as to effectively close plaintiff’s proof, dismissal resulting from the noncompliance is not a merits determination so as to bar commencement of a second action” (Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615-616 [1985]; see Daluise v Sottile, 40 AD3d 801, 802-803 [2007]; Aguilar v Jacoby, 34 AD3d 706, 707 [2006]). In the case at bar, plaintiff’s prior action was [*2]dismissed after the court below granted defendant’s motion to strike the complaint pursuant to CPLR 3126 (3). Since plaintiff’s noncompliance did not “result in a dismissal with prejudice, or an order of preclusion or summary judgment,” plaintiff was not barred from commencing a second action (see Maitland, 65 NY2d at 615-616; Daluise, 40 AD3d at 802). Accordingly, the court below properly denied defendant’s motion for summary judgment dismissing the
complaint based on the doctrine of res judicata (cf. First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2008 NY Slip Op 51266[U] [App Term, 2d & 11th Jud Dists 2008] [so-ordered stipulation concerning discovery provided that a failure to provide the discovery would result in preclusion]).

North N.Y. Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 2008 NY Slip Op 51557(U) (App. Term, 2d)

An insurance carrier is required to either pay or deny a claim for no-fault benefits within 30 days of the date the insurer receives the proof of claim (see Insurance Department Regulations [11 NYCRR] § 65.15 [g] [3], now Insurance Department Regulations [11 NYCRR] § 65-3.8; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Insurance [*2]Department Regulations (11 NYCRR) § 65.15 (d) (2) provides that additional verification required by an insurer is to be requested within 10 business days of receipt of a prescribed claim form. Where, as here, defendant requested additional verification 12 business days after receiving plaintiff’s NF-3 claim form, the 30-day period within which defendant was required to pay or deny plaintiff’s claim was correspondingly reduced to 28 days (Insurance Department Regulations [11 NYCRR] § 65.15 [g] [10], now Insurance Department Regulations [11 NYCRR] § 65-3.8 [j]; see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]). Since defendant concedes that it received the requested verification on May 16, 2001, defendant was required to pay or deny the claim at issue on or before June 13, 2001. As defendant did not deny plaintiff’s claim until June 14, 2001, defendant’s denial of plaintiff’s claim was untimely and defendant is precluded from raising its proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997], supra).

Prime Psychological Servs., PC v American Tr. Ins. Co., 2008 NY Slip Op 28273 (Civ Ct City NY, Richmond County)

The same reasoning applies to the instant matter. Plaintiff does not claim that the information contained in the NF -10 was “insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law.” Nor does plaintiff contend that it was deprived of prompt specific notice as to the reasons for the insurer’s denial or that it was prejudiced because it only received one copy of the NF – 10. In fact, since the regulations set forth that both the original NF-10 form and its duplicate shall be served on the medical provider, the service of the duplicate NF-10 is basically redundant. As such, plaintiff’s contention that it must be awarded summary judgment because the denial was not issued in duplicate runs counter to the very legislative intent behind the No – Fault Law – to process claims within a short time frame and expeditiously so as to avoid prejudice and red tape dilatory practices.

As such, both plaintiff’s and defendant’s motions for summary judgment are denied and this case is to proceed to trial.

Complete Med. Servs., P.C. v MVAIC, 2008 NY Slip Op 28269 (App. Term, 2d)

Contrary to defendant’s contention, the 30-day period within which defendant may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether defendant has determined that plaintiff’s assignor is a qualified person within the meaning of Insurance Law § 5202 (b) (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]). Defendant’s assertion that it was entitled to summary judgment because plaintiff’s assignor was not a qualified person since he “failed to submit to [*2][defendant] a copy of the Police Report regarding the alleged motor vehicle accident or otherwise compl[y] with the reporting requirements of [Insurance Law] Article 52,” lacks merit. Plaintiff’s assignor’s status as a qualified person is not dependent upon defendant’s receipt of a copy of the police report (see Insurance Law § 5202 [b]). Although defendant contends that plaintiff’s assignor also failed to comply with the reporting requirements set forth in Insurance Law article 52, the record does not support such contention.

Infinity Health Prods., Ltd. v Eveready Ins. Co., 2008 NY Slip Op 28271 (App. Term, 2d)

While defendant argues that plaintiff did not establish a prima facie case because plaintiff did not prove its cost of the supplies furnished to plaintiff’s assignor, a provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment [*2]of no-fault benefits was overdue (see Insurance Law § 5106 [a]; see also Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). A medical equipment provider is not required to prove its costs to establish its prima facie case for the recovery of no-fault benefits. Whether a provider’s benefits claim exceeded the amount permitted by the fee schedule is a mere defense to an action on a claim, which defense is precluded by an untimely denial (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]).
…
In opposition to plaintiff’s motion for summary judgment and in support of defendant’s cross motion, the supervisor of defendant’s no-fault department stated that because plaintiff failed to provide the requested verification, defendant did not pay or deny the subject claims submitted by plaintiff. We agree with the court below that defendant’s failure to adhere to the regulations governing initial and follow-up verification requests rendered ineffective its attempt to toll the 30-day claim determination period. Defendant admits that it mailed a follow-up verification demand 27 days after it mailed its initial demand, and we find the second request premature and without effect (see Insurance Department Regulations [11 NYCRR] § 65.15 [e] [2], now Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]). Contrary to defendant’s contention, the case of New York & Presbyt. Hosp. v American Tr. Ins. Co. (287 AD2d 699 [2001]) does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification. As a result, defendant is precluded from raising most defenses, including its proffered defense of excessive fees (see Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50163[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.
While defendant argues that plaintiff was only entitled to recover the interest that accrued since the commencement of this action, such argument lacks merit (Insurance Department Regulations [11 NYCRR] 65-3.9 [a], [c]; LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290, 1291 [2007]; see also Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co., 17 Misc 3d 13, 15 [App Term, 2d & 11th Jud Dists 2007]).

Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51529(U) (App. Term, 2d)

Quality Health Prods., Inc. v Auto One Ins. Co., 2008 NY Slip Op 51530(U) (App. Term, 2d)

Inasmuch as defendant timely sought verification with respect to the medical necessity of the supplies furnished by plaintiff to its assignor, upon receipt of such verification on November 23, 2005, defendant’s 30-day claim determination period began to run (Insurance Department [*2]Regulations [11 NYCRR] § 65-3.5). While defendant argues that its time to pay or deny plaintiff’s claim was further tolled because defendant requested that plaintiff’s assignor submit to an examination under oath (EUO), the record does not indicate that defendant made such a request for additional verification within 15 days of defendant’s receipt of the letter of medical necessity. As a result, defendant failed to show that its 30-day claim determination period was still tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.5). In view of the foregoing, defendant’s denial of claim form, which was not mailed until January 4, 2006, was untimely and defendant was precluded from raising fraudulent billing as a defense in this action (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Consequently, plaintiff’s motion for summary judgment should have been granted.

Multiquest, P.L.L.C. v Allstate Ins. Co., 2008 NY Slip Op 51531(U) (App. Term, 2d)

Liberty Orthopedics, PLLC v Mvaic, 2008 NY Slip Op 51533(U) (App. Term, 2d)

With respect to defendant’s cross motion for summary judgment, we are of the opinion that the court below correctly denied same. Defendant’s assertion, that it was entitled to summary judgment because plaintiff’s assignor was not a qualified person since he failed to provide defendant with a household affidavit or written proof of lack of insurance, lacks merit. Plaintiff’s assignor’s status as a qualified person is not dependent upon defendant’s receipt of said documents (see Insurance Law § 5202 [b]). As a result, defendant’s motion for summary judgment dismissing the complaint was properly denied since defendant failed to make a prima facie showing of its entitlement to such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Vinings Spinal Diagnostic v Progressive Cas. Ins. Co., 2008 NY Slip Op 51534(U) (App. Term, 2d)

Appeal dismissed.

The appeal from the order must be dismissed since no appeal as of right lies from an order which decides a motion which was not made on notice (UDCA 1702 [a] [2]; see Bottiglieri v Reilly, 15 Misc 3d 135[A], 2007 NY Slip Op 50750[U] [App Term, 9th & 10th Jud Dists 2007]; see also 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]). A motion is made on notice when a notice of motion or an order to show cause is served (CPLR 2211), and no notice of motion or order to show cause was served herein. Although, under appropriate circumstances, a court may deem a notice of appeal an application for leave to appeal and grant such leave (UDCA 1702 [c]; see e.g. Cervera v Bressler, 50 AD3d 837 [2008]; Vest v Vest, 50 AD3d 776 [2008]), we decline to do so in the instant case.

S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 2008 NY Slip Op 51537(U) (App. Term, 2d)

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2008 NY Slip Op 51538(U) (App. Term, 2d)

Since the affirmed independent medical examination report submitted [*2]by defendant in support of its cross motion established prima facie that the supplies provided by plaintiff for which plaintiff sought to recover the sum of $925.75 were not medically necessary and plaintiff did not present any evidence refuting defendant’s prima facie showing, the court should have granted defendant’s cross motion for summary judgment dismissing the complaint insofar as it sought to recover upon said claim (see Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Inasmuch as the affirmed peer review report annexed to defendant’s cross motion did not establish that the supplies for which plaintiff sought to recover on the claim seeking the sum of $235.63 were medically unnecessary, defendant was not entitled to summary judgment dismissing said claim.

Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 2008 NY Slip Op 51540(U) (App. Term, 2d)

In opposition to plaintiff’s motion for summary judgment, defendant was required, in order to raise a triable issue of fact as to medical necessity, to proffer proof in admissible form (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). In its opposing papers, defendant submitted an affirmed peer review report which stated that there was a lack of medical necessity for the medical equipment provided by plaintiff. In its reply papers, plaintiff asserted that the peer review report upon which defendant relied was not in admissible form pursuant to CPLR 2106 because it bore a [*2]facsimile of the peer reviewer’s signature. Although defendant argues that plaintiff’s contention was improperly raised for the first time in plaintiff’s reply papers, the reply affirmation from plaintiff’s counsel was responsive to defendant’s papers, since defendant first proffered the peer review report in inadmissible form in opposition to plaintiff’s motion and plaintiff was pointing out said defect in form. Inasmuch as defendant concedes that the peer review report bears an electronic stamped facsimile of the doctor’s signature, and there is nothing in the record to indicate that the facsimile signature was placed on the report by the doctor who performed the peer review or at his direction, defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). Accordingly, the judgment is affirmed.

Complete Med. Servs. of N.Y., P.C. v MVAIC, 2008 NY Slip Op 51541(U) (App. Term, 2d)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary
judgment dismissing the complaint. MVAIC argued, inter alia, that the action was premature since plaintiff and its assignor failed to exhaust all remedies against the driver and the owner of the taxicab which struck plaintiff’s assignor before seeking relief from MVAIC. MVAIC also asserted that the action was premature since plaintiff’s assignor failed to provide sufficient information so that MVAIC could determine whether she was a qualified person. The court held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and that MVAIC’s cross motion for summary judgment based upon the assignor’s lack of qualification lacked merit. This appeal by defendant ensued.

Since plaintiff and its assignor are aware of the identities of the driver and the owner of the taxicab which struck plaintiff’s assignor, plaintiff, as assignee, must first exhaust its remedies [*2]against the driver and the owner of the taxicab before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). If plaintiff unsuccessfully exhausts its remedies against the driver and the owner of the taxicab, plaintiff may assert a claim against MVAIC pursuant to Insurance Law § 5218 (c). However, until plaintiff exhausts its remedies, its claim against MVAIC is premature (id.). Consequently, MVAIC’s cross motion for summary judgment should have been granted.

Uptodate Med. Servs., P.C. v Lumbermens Mut. Cas. Co., 2008 NY Slip Op 51502(U) (App. Term, 2d)

Where the issue of whether a party seeking summary judgment has made a prima facie showing in support of the motion is neither raised nor passed upon in the court of original instance and is not raised on appeal, an appellate court may, in its discretion, decline to pass upon the issue. In the instant case, we decline to pass on this issue. However, with respect to the assertion by the dissent that “courts have established the barest requirements for a claimant to [*2]establish a prima facie case,” we note that the requisite elements of a prima facie showing in an action to recover assigned first-party no-fault benefits are well established in Appellate Division case law (see e.g. Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The affidavit executed by defendant’s no-fault examiner did not establish the timely mailing of the verification requests or the denial of claim forms since it failed to sufficiently set forth the standard office practice and procedure used to ensure that the verification requests and denial of claim forms were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, defendant is precluded from asserting its defense that the services provided were not medically necessary (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and, as a result, it did not establish the existence of a triable issue of fact so as to defeat plaintiff’s cross motion seeking summary judgment on the claims totaling $5,381.64. Accordingly, the judgment is affirmed.

Weston Patterson, J.P., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate so much of the order entered June 21, 2006 as granted plaintiff’s cross motion for summary judgment to the extent of awarding plaintiff partial summary judgment, and deny said cross motion.

In the first instance, I note that one of the most fundamental principles of jurisprudence is that in order for a plaintiff to obtain the imprimatur that comes with receiving a favorable court judgment, the plaintiff must establish that such a judgment is warranted and should be awarded under the circumstances of the case, namely by establishing a prima facie case.^[FN1]

The Court of Appeals, in Alvarez v Prospect Hosp. (68 NY2d 320, 324 [1986]), made that specific point:
“As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.”

Trial and appellate courts should always consider the issue of whether a prima facie [*3]showing has been made, irrespective of whether the issue was raised by the defendant. This obligation was addressed by the Appellate Division, First Department, in the case of Cugini v System Lbr. Co. (111 AD2d 114, 115 [1983]), where the majority wrote:
“While the failure to submit an affidavit of merit in response to a motion for summary judgment seeking dismissal of an action does, as stated in the dissent, mandate a dismissal without condition, such presupposes that the movant, in the first instance, has made the requisite showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (emphasis added).”

The concept of prima facie then is simply that before any matter may proceed to judgment, the party instituting the matter must establish proof sufficient to meet such obligation (see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). A prima facie showing must be established without regard to, or review of, opposition papers. Even if the defendant were to default, the papers submitted must be able to withstand scrutiny on their own.

The majority herein states that:
“Where the issue of whether a party seeking summary judgment has made a prima facie showing in support of the motion is neither raised nor passed upon in the court of original instance and is not raised on appeal, an appellate court may, in its discretion, decline to pass upon the issue. In the instant case, we decline to pass on the issue.”

Notwithstanding this pronouncement, the Court of Appeals has frequently stated that “the proponent of a summary judgment must make a prima facie showing . . .” (Alvarez v Prospect Hosp., 68 NY2d at 324 [emphasis added]). Whether the majority chooses to address the issue or not, like the dissent in Cugini, it has implicitly found that a prima facie showing has been made.

Indeed, unlike in other proceedings, in no-fault matters, courts have established the barest requirements for a claimant to establish a prima facie case. I see no basis for relieving the provider from such barest of obligations (see e.g. Dan Med. P.C. v NY Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). To the extent that I may have held otherwise, I no longer follow those tenets.

In addition, I disagree with the majority’s holding that defendant’s affidavit fails to sufficiently set forth the standard office practice and procedure used to insure that the denial of claim forms were properly addressed and mailed, and, by extension, I similarly conclude that the verification requests were properly mailed. To me, the affidavit of defendant’s no-fault examiner, which set forth the mailing practices and procedures regarding the denial of claim forms and [*4]verification requests, was sufficient to deny plaintiff’s cross motion for summary judgment.

In support of its findings, the majority cites to the case of New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2006]). That case, in turn, cites to Hospital for Joint Diseases v Nationwide Mut. Ins. Co. (284 AD2d 374, 375 [2001]), which found that the defendant failed to establish that it mailed a denial of claim because:
“… the employee had no personal knowledge that the claim form had been mailed…” (emphasis added).

In the present case, however, defendant’s affidavit specifically stated that:
“… I have personal knowledge that in compliance with that policy and business duty … the denial of claim forms were mailed…” (emphasis added).

It should also be noted that the Court of Appeals addressed this issue only upon the claimants’ affirmative assertion that they did not receive any notice from the insurer. In Nassau Ins. Co. v Murray (46 NY2d 828, 829 [1978]), the Court found:
“Where, as here, the proof exhibits an office practice and procedure followed by the insurers in the regular course of their business, which shows that the notices . . . have been duly addressed and mailed, a presumption arises that those notices have been received by the insureds …”

The only caveat raised by the Court of Appeals is that:
“… office practice must be geared so as to ensure the likelihood that a notice . . . is always properly addressed and mailed” (id. at 830).

As stated in the affidavit of defendant’s no-fault examiner: “It is Lumbermens’ office practice and Lumbermens’ claims examiners are under a business duty to mail all denial of claim forms to the address [the] applicant lists on the bills on the same day the denials are generated and signed.”

It is my belief that, under the present circumstances, the above caveat was complied with. [*5]

Therefore, I find that the denial was timely sent by defendant to plaintiff and that the notice was predicated upon a peer review report which found that the medical treatments were not medically necessary. Consequently, I would deny plaintiff’s motion for summary judgment.

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]).

Craigg Total Health Family Chiropractic Care PC v QBE Ins. Corp., 2008 NY Slip Op 51398(U) (Nassau Dist Ct)

Plaintiffs claim that they have established their prima facie case for summary judgment by showing that the claim forms were timely and properly submitted and that Defendant has either failed to pay or failed to properly deny the claim within the statutory time frame (11 NYCRR §65-3.8[c]; Westchester Medical Center v. AIG, Inc., 36 AD3d 900 [2d Dept 2007]).

The affidavit on its face fails to lay any foundation for any of the documents attached to Plaintiffs’ motion. It fails to provide any specific information regarding to who is her actual employer. Although Plaintiffs have offered defendant’s denials as acknowledgment of receipt of the bills provided, Plaintiffs have failed to lay a sufficient evidentiary foundation in satisfaction of CPLR 4518. Despite Ms. Safir’s purported personal knowledge of the manner in which Plaintiffs’ records are ordinarily kept, her affidavit fails to demonstrate what the manner consisted of and whether the records were recorded at the time the services were provided to its assignor or within a reasonable time thereafter, where the document was created, if it was created in the ordinary course of business and whether it is the regular course of the business to prepare said documents. Further, Ms. Safir fails to demonstrate that the procedures ordinarily implemented by Plaintiffs’ offices were the procedures implemented on the date the services were rendered to Plaintiffs’ assignor.

Since the affidavit of Plaintiffs’ biller was insufficient to lay a foundation for the admission, as business records, of the documents annexed to Plaintiff’s moving papers, Plaintiffs have failed to establish a prima facie showing of their entitlement to summary judgment. Accordingly, Plaintiff’s motion is denied.