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East Coast Acupuncture, P.C. As Assignee of George Brady v. Clarendon National Ins. Co

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


June 30, 2011

EAST COAST ACUPUNCTURE, P.C. AS ASSIGNEE OF GEORGE BRADY,
RESPONDENT,
v.
CLARENDON NATIONAL INS. CO.,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered June 11, 2009.

East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co.

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2011

PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the claims for the sums of $180 (dates of service July 6, 2006 - July 10, 2006), $180 (dates of service July 18, 2006 - July 31, 2006), $360 (dates of service August 4, 2006 - August 31, 2006), $180 (dates of service September 5, 2006 - September 25, 2006), and $270 (dates of service October 12, 2006 - October 23, 2006) are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover for acupuncture services rendered to its assignor. Plaintiff billed defendant at $90 per session. Defendant paid for some of the sessions, but at a reduced rate per session, and partially denied the claims for these sessions as to the unpaid portion, basing its determination of the appropriate amount of reimbursement upon the workers' compensation fee schedule for acupuncture services performed by chiropractors. Reimbursement for other sessions was entirely denied due to plaintiff's assignor's failure to attend scheduled independent medical examinations (IMEs). Defendant moved for summary judgment dismissing the complaint, contending that it was entitled to summary judgment with respect to those bills or portions of bills for which it had denied reimbursement based upon plaintiff's assignor's failure to attend scheduled IMEs and for which it had reduced reimbursement based upon the fee schedules. The Civil Court denied defendant's unopposed motion on the ground that the motion presented "issues of credibility which the court cannot resolve on a motion for summary judgment," and stated that the supporting exhibits themselves raised triable issues of fact. This appeal ensued.

A review of the record indicates that defendant's motion papers were sufficient to establish that the letters scheduling the IMEs and that the claim denial forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also established that plaintiff's assignor had failed to attend scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since the appearance of plaintiff's assignor at the IMEs was a "condition precedent to the insurer's liability on the policy" (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant was entitled to summary judgment dismissing the complaint with regard to those claims which it had denied on that basis "retroactively to the date of loss" (id.), i.e., so much of the bill dated August 14, 2006 as sought to recover the sum of $180 (dates of service July 6, 2006 - July 10, 2006), $180 (dates of service July 18, 2006 - July 31, 2006), $360 (dates of service August 4, 2006 - August 31, 2006), $180 (dates of service September 5, 2006 - September 25, 2006), and $270 (dates of service October 12, 2006 - October 23, 2006).

With respect to the unpaid portions of the remaining bills which defendant claims were timely denied based upon the fee schedules, the letters from defendant to plaintiff which were annexed to defendant's motion papers and which advised plaintiff that the processing of its bills was being delayed pending an examination under oath were insufficient to toll the 30-day period within which defendant was required to pay or deny those bills (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; see also Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Accordingly, defendant was not entitled to summary judgment with respect to those bills, albeit for a reason other than that stated by the Civil Court.

Pesce, P.J., Rios and Steinhardt, JJ., concur.

Decision Date: June 30, 2011

20110630

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