Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), entered January 16, 2008. The order denied the branch of plaintiff's motion seeking summary judgment and implicitly denied the branch of plaintiff's motion seeking, in the alternative, an order, pursuant to CPLR 3212 (g), deeming certain facts established for all purposes in the action.

Order modified by providing that plaintiff's motion seeking summary judgment or, in the alternative, an order, pursuant to CPLR 3212 (g), deeming certain facts established for all purposes in the action is granted to the extent of deeming as established facts for all purposes in the action that plaintiff submitted its claim forms to defendant and that defendant timely denied the claims at issue based upon independent medical examinations performed by Dominic Chiappetta and Richard Sollazzo; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for an order, pursuant to CPLR 3212 (g), limiting issues of fact for trial. Plaintiff's attorney and its billing manager each claimed that plaintiff's bills were denied based upon independent medical examinations (IMEs), that defendant failed to produce the IME reports upon plaintiff's request and that, therefore, defendant should be precluded from asserting its defense of lack of medical necessity. In opposition, defendant argued that it timely denied plaintiff's claims on the ground that the services rendered [*2]were not medically necessary and attached copies of the IME reports to its opposition papers, as well as affidavits executed by the chiropractor and the acupuncturist who performed the IMEs at issue. Defendant also requested an order limiting issues for trial pursuant to CPLR 3212 (g) in the event plaintiff's motion for summary judgment was denied. The District Court denied the branch of plaintiff's motion seeking summary judgment and implicitly denied the branch of plaintiff's motion seeking an order pursuant to CPLR 3212 (g), as well as defendant's request for such an order. The instant appeal by plaintiff ensued.

Plaintiff's sole argument on appeal with respect to the denial of that branch of its motion seeking judgment in its favor is that defendant should be precluded from asserting its defense of lack of medical necessity because defendant did not provide copies of the IME reports in response to the request for said reports contained in plaintiff's complaint. However, as the motion court held, "a pleading can only contain statements' and cannot contain a demand or request" (see CPLR 3013, 3014). Accordingly, plaintiff has not demonstrated that it ever made a proper demand for the IME reports. In any event, the Insurance Regulations provide no sanction for an insurer's failure to provide an IME report upon the written request for one by a provider (see Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2008]). Consequently, the District Court properly denied plaintiff's motion for summary judgment.

However, the alternative relief sought in plaintiff's motion, which relief plaintiff seeks again on this appeal, is appropriate in this case (see CPLR 3212 [g]; Tele-Pac, Inc. v Grainger, 168 AD2d 11 [1991]; E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599 [1984]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:35). As defendant has not challenged the admissibility of plaintiff's claim forms as business records, and the parties agree that the only issue for trial is whether the services billed for were medically necessary, we find, pursuant to CPLR 3212 (g), that plaintiff submitted its claim forms to defendant and that defendant timely denied the claims at issue based upon independent medical examinations performed by Dominic Chiappetta and Richard Sollazzo.

We decline defendant's request that we search the record and award it summary judgment dismissing the complaint (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: February 24, 2009