SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
December 23, 2011
ARCO MEDICAL NY, P.C. AS ASSIGNEE OF ISARDAT JEWDHAN,
LANCER INSURANCE COMPANY,
Arco Med. NY, P.C. v Lancer Ins. Co.
Decided on December 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., GOLIA and RIOS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009. The order denied defendant's motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that the branches of plaintiff's cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff's principals, for depositions, and plaintiff cross-moved for summary judgment upon the seven claims at issue in this action. Defendant opposed plaintiff's cross motion, arguing that it had timely denied plaintiff's claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant's motion and granted plaintiff's cross motion.
On appeal, defendant argues that its motion to compel plaintiff to
produce Dr. Mayard and Dr. Berardi for depositions should have been
granted because the motion sought information regarding "treatment"
and plaintiff's "billing practices," which information is material and
necessary to the defense of this action. However, we find that these
defenses are precluded (see Fair Price Med. Supply Corp. v Travelers
Indem. Co., 10 NY3d 556 ; Delta Diagnostic Radiology, P.C. v
Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d
& 11th Jud Dists 2007]), and therefore defendant is not entitled to the
discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co.,
11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).
Turning to plaintiff's cross motion, since defendant raises no issue on appeal with regard to plaintiff's establishment of a prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 ).
Defendant admits that it received plaintiff's claims seeking the sums
of $748.24 and $230.09 on December 16, 2006 and December 29, 2006,
respectively, and it is undisputed that the claims were not paid or
denied within 30 days of their receipt. Nor does defendant claim that
the EUOs of Drs. Mayard and Berardi were requested, or pending, during
that time. We note that defendant's January 15, 2007 letter purporting
to delay payment of the claims was not mailed within 15 days of
defendant's receipt of either of these claims and, in any event, is
insufficient to toll the 30-day statutory time period within which a
claim must be paid or denied (see Points of Health Acupuncture, P.C. v
Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App
Term, 2d, 11th
& 13th Jud Dists 2010]). Accordingly, defendant failed to demonstrate that
these two claims were timely denied and therefore has not established
that its defenses as to these two claims are not precluded. Thus, the Civil
Court properly granted the branches of plaintiff's cross motion seeking
summary judgment as to these claims.
However, the record establishes that defendant's time to pay or deny
the remaining claims, seeking the sums of $403.72, $411.39, $230.09
(dated January 16, 2007), $71.49 and $1,065.16, was tolled. The
affirmation submitted by defendant's attorney established that EUO
scheduling letters had been mailed in accordance with his law firm's
standard office practices and procedures (see St. Vincent's Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ; Delta
Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App
Term, 2d & 11th Jud Dists 2007]). Defendant's February 13, 2007 request,
which scheduled the EUOs for February 28, 2007, was timely with respect to
these remaining claims (see Insurance Department Regulations [11 NYCRR]
§ 65-3.5 [b]; § 65-3.8 [j]), as was the March 7, 2007
follow-up request, which rescheduled the EUOs for March 21, 2007,
after the doctors had failed to appear for the scheduled February 28,
2007 date (see Arco Med. NY, P.C. as Assignee of Isardat Jewdhan v
Lancer Ins. Co., __ Misc 3d __, 2011 NY Slip Op _____ [Appeal No.
2009-2201 K C], decided herewith).
Defendant raised a triable issue of fact by demonstrating that the doctors had failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of these five remaining claims had been timely denied on April 11, 2007 (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since defendant is not precluded from interposing that defense with respect to these claims, the branches of plaintiff's cross motion seeking summary judgment with respect to the remaining five claims should have been denied.
In light of the foregoing, the order appealed from is modified by providing that the branches of plaintiff's cross motion seeking summary judgment upon the claims for the sums of $403.72, $411.39, $230.09 (dated January 16, 2007), $71.49 and $1,065.16 are denied.
Weston, J.P., and Rios, J., concur.
Golia, J., taking no part.
Decision Date: December 23, 2011
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