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Arco Medical NY, P.C. v. Metropolitan Casualty Insurance Co.

Supreme Court of New York, Second Department

November 26, 2013

Arco Medical NY, P.C. as Assignee of CHARMAINE McPHERSON, Respondent,
v.
Metropolitan Casualty Insurance Company, Appellant.

PRESENT:: PESCE, P.J., ALIOTTA and SOLOMON, JJ

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 18, 2011. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and granted the branches of plaintiff's cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009 and a claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover on a claim for $249.96 for services rendered on January 19, 2009, a claim for $3, 119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court denied defendant's motion and granted the branches of plaintiff's cross motion seeking summary judgment with respect to so much of the complaint as sought to recover on a claim for $319.97 for services rendered on February 17, 2009, which claim defendant alleged it had never received, and a claim for $42.02, which was the balance found to be due after defendant had allegedly paid plaintiff for services rendered from December 31, 2008 to January 28, 2009 pursuant to the worker's compensation fee schedule. The court otherwise denied plaintiff's cross motion for summary judgment.

On appeal, defendant argues that its motion for summary judgment dismissing the complaint should have been granted because it demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). Defendant had raised this defense in the Civil Court with regard to a claim for $3, 119.44 for services rendered on January 28, 2009, a claim for $230.09 for services rendered on January 28, 2009, a claim for $249.96 for services rendered on January 19, 2009 and a claim for $272.92 for services rendered on February 17, 2009. Defendant did not raise this defense in the Civil Court with respect to the claim for $319.97 for services rendered on February 17, 2009 and the claim for $42.02 for services rendered from December 31, 2008 to January 28, 2009, nor did it establish that it had timely denied the latter claims on that ground. Since defendant did not, in its appellate brief, proffer any argument as to why the Civil Court's award of summary judgment to plaintiff on these claims was in error, we do not disturb the part of the order appealed from that granted summary judgment to plaintiff with respect to so much of the complaint as sought to recover upon these two claims.

Defendant demonstrated that the first four claims listed above had been denied within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; see also St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc.3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that plaintiff had failed to appear for duly scheduled EUOs. The affidavits submitted by defendant established that its EUO scheduling letters had been mailed in accordance with its standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 A.D.3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc.3d 16), and that the EUOs had been properly scheduled (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc.3d 134 [A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant also established that plaintiff had failed to appear at the duly scheduled EUOs, through both an affidavit by the investigator who had been assigned to conduct the EUOs, and statements made on the record by the same investigator (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]). Since defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage, the branches of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $249.96 for services rendered on January 19, 2009, a claim for $3, 119.44 for services rendered on January 28, 2009, a claim for $230.09 for additional services rendered on January 28, 2009 and a claim for $272.92 for services rendered on February 17, 2009 are granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


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