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Eastern Star Acupuncture, P.C. As Assignee of Jose Gil v. American Transit Insurance Company

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


December 5, 2011

EASTERN STAR ACUPUNCTURE, P.C. AS ASSIGNEE OF JOSE GIL,
RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered October 30, 2009.

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co.

Decided on December 5, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant's cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff's claim dated September 11, 2006; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

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

Inasmuch as defendant raises no issue with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

Defendant established that its denial of claim forms were timely mailed (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]). With regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant's claims examiner stated in his affidavit submitted in opposition to plaintiff's motion that he had denied this claim based upon the failure of plaintiff's assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff's assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant's belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers' compensation fee schedule, we find that an issue of fact exists with respect thereto (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant denied plaintiff's claim dated September 11, 2006 based upon plaintiff's assignor's failure to appear for duly scheduled IMEs. Defendant demonstrated that it had timely mailed the IME requests, through the submission of an affidavit of an employee of the entity which scheduled the IMEs on behalf of defendant, who stated that she had personally mailed the IME requests on particular dates (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit and an affirmation, both of which were sufficient to establish that plaintiff's 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]). As a result, defendant was entitled to summary judgment dismissing this claim (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant's cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff's claim dated September 11, 2006.

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

Decision Date: December 05, 2011

20111205

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