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Viviane Etienne Medical Care, P.C. As Assignee of Abraham Cameau, Appellant v. Country-Wide Ins. Co.

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 11, 2013

VIVIANE ETIENNE MEDICAL CARE, P.C. AS ASSIGNEE OF ABRAHAM CAMEAU, APPELLANT, --
v.
COUNTRY-WIDE INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Jacqueline D. Williams, J.), entered May 4, 2010, deemed from a judgment of the same court entered December 7, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 4, 2010 order denying plaintiff's motion for summary judgment and granting the branch of defendant's cross motion seeking, in effect, summary judgment, dismissed the complaint.

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.

Decided on February 11, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and SOLOMON, JJ

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 4, 2010 as granted the branches of defendant's cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services rendered October 10, 2005 is vacated, those branches of defendant's cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking, in effect, summary judgment dismissing the complaint. A judgment was subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff's contention, its motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

With respect to defendant's cross motion, defendant established that it had timely denied (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]) the claims at issue in this action, with the exception of a bill in the sum of $880.44 for services rendered September 7, 2005. As the affidavit by defendant's no-fault litigation supervisor which defendant submitted is silent with respect to this claim, defendant did not establish that the claim had been timely denied.

With respect to the claims which were denied based upon an independent medical examination (IME), the sworn IME report, which was annexed to defendant's cross motion as an exhibit, established a lack of medical necessity for the services, and plaintiff failed to rebut defendant's prima facie showing. Consequently, defendant was entitled to the dismissal of those claims (see 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]; 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 NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With respect to the claims seeking the sums of $1,109.05, $3,227.26 and $1,153, the affidavit by defendant's no-fault litigation supervisor established that the initial and follow-up verification requests for additional verification had been timely mailed (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and that plaintiff had failed to provide all of the requested additional verification. Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and, thus, so much of the complaint as sought to recover upon these claims is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Defendant was not entitled to the dismissal of so much of the complaint as sought to recover upon a claim for $880.44 for services rendered October 10, 2005 because "defendant failed to conclusively establish its stated defense[] that the fees charged exceeded the amounts set forth in the workers' compensation fee schedule (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])" (Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51623[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2012]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

Accordingly, the judgment is reversed, so much of the order entered May 4, 2010 as granted the branches of defendant's cross motion seeking, in effect, summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $880.44 for services rendered September 7, 2005 and a claim for $880.44 for services rendered October 10, 2005 is vacated, those branches of defendant's cross motion are denied, and the matter is remitted to the Civil Court for all further proceedings

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 11, 2013

20130211

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