Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co.

[*1] Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. 2005 NY Slip Op 50110(U) Decided on February 2, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
2003-1652 Q C

TRIBORO CHIROPRACTIC and ACUPUNCTURE, PLLC, a/a/o TAMARA PITTERSON, Respondent,

against

NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered September 26, 2003, granting plaintiff's motion for partial summary judgment to the extent of striking defendant's first affirmative defense, and implicitly denying defendant's cross motion for summary judgment.

Order modified by providing that plaintiff's motion is granted to the extent of awarding it partial summary judgment in the sum of $398.68 and matter remanded to the court below for a calculation of statutory interest and attorney's fees thereon, and for all other proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover $8,205.98 in assigned first-party no-fault benefits, the court below granted plaintiff partial summary judgment, to the extent of "preclud[ing]"
defendant "from defending its denials" based on the assignor's failure to appear for two independent medical examinations (IMEs) scheduled prior to plaintiff's submission of the first of its statutory claim forms and, implicitly, denied defendant's cross motion for summary judgment based on the nonappearances. However, defendant's denials of plaintiff's claims for $151.28, $67.40 and $180.00 in no-fault benefits were untimely (Insurance Law § 5106[a]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and as defendant interposed no defense that survived the preclusive effect of the untimely denials, summary judgment should have been granted as to those claims. We note that said untimely denials precludes the defense that the benefits claimed exceeded the maximum benefits provided by the Workers' Compensation Law (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d [*2]583, 586 [2002]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]; Mingmen Acupuncture Servs. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40244 [U] [App Term, 9th & 10th Jud Dists]).

However, for the reasons set forth in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (___ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]), the failure of plaintiff's assignor to attend the IMEs, sought before plaintiff submitted its statutory proofs of claim, does not afford the insurer a defense to the action but rebuts the presumption of medical necessity that attaches to the claim forms (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Because plaintiff failed to support its motion with a reasonable excuse for the assignor's failure to attend or with a showing that the IME requests were unreasonable, or in the alternative, with proof of the treatments' medical necessity independent of the claims forms, defendant's proof of the assignor's nonappearance defeated plaintiff's summary judgment motion with the exception of the claims that were untimely denied.

Accordingly, the order is modified to grant plaintiff partial summary judgment in the sum of $398.68, and the matter remanded for the calculation of statutory interest
and attorney's fees thereon, pursuant to Insurance Law § 5106 (a), and for all further proceedings on the remainder of the claims in accordance with the determination herein.

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

Golia, J., dissents in a separate memorandum.

Golia, J. dissents and votes to deny plaintiff's motion for partial summary judgment and to grant defendant's cross motion for summary judgment set forth in the following memorandum:

While I agree with the majority's grant of summary judgment with respect to the claims untimely denied, defendant's cross motion for summary judgment should have been granted and the complaint dismissed as to the remaining claims for the reasons set forth in my dissent in Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co. (__ Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]).
Decision Date: February 02, 2005