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The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Katz & Associates, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 18, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
Plaintiff correctly argues that the affidavit it submitted in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and thus that there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur
Civil Court of the City of New York, Kings County, October 29, 2020
The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.
The Law Offices of Perry & Frankson, North New Hyde Park (Erin L. McFadzen of counsel), for defendant.
Consuelo Mallafre Melendez, J.
In this no-fault action seeking reimbursement for medical services, plaintiff medical provider moves, inter alia, for an order granting summary judgment pursuant to CPLR 3212. Defendant insurer also moves, inter alia, for summary judgment pursuant to CPLR 3212.
The court finds that plaintiff established its prima facie showing of entitlement to summary judgment. It is well settled that summary judgment is appropriate when sufficient evidence in admissible form is presented to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, in support of its motion, plaintiff submits the affidavit of Sean B. Diamond, D.C., the owner of Bronx Chiropractic Rehabilitation, P.C., in which he establishes that the claim forms had been timely and properly mailed to defendant (see Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2013]). Accordingly, plaintiff established its prima facie entitlement to summary judgment and the burden shifted to defendant to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d [*2]320 [1986]).
The court finds that defendant failed to raise a triable issue of fact in opposition to plaintiff's motion and to establish their own entitlement to summary judgment pursuant to CPLR 3212. Defendant asserts that they properly denied plaintiff's claims for failure to provide a requested verification within 120 days of the initial request and that plaintiff's case must be dismissed as premature. However, defendant fails to submit adequate evidence in support of their requests for verification. Defendant relies on attached copies of the verification request letters as well as the affidavit of their litigation representative, Joseph M. Andre, who establishes mailing of the letters. In the verification request letters at issue, defendant states that they requested that the assignor provide a recorded statement via a scheduled phone call. Defendant claims that the assignor failed to respond to the calls they scheduled in all three verification request letters.[FN*] Accordingly, defendant asserts that dismissal {**70 Misc 3d at 363}of plaintiff's case is appropriate based on outstanding verification.
However, based on the language contained in the verification request letters, defendant was required to call the assignor on a certain date, at a certain time, to a certain telephone number in order to obtain the requested information: "In order to determine your eligibility for benefits, all benefits remain delayed pending your cooperation with our request for a recorded statement. You will be contacted at the number below to provide a statement on the date and time indicated." (Emphasis added.)
Although defendant established that the verification requests were mailed, they failed to establish that a representative placed the phone call which they claim the assignor failed to answer on each of the scheduled dates. As a result, the verification requests are incomplete.
In a similar Appellate Term case, Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., the defendant insurer also denied the plaintiff's claim based on outstanding verification (13 Misc 3d 141[A], 2006 NY Slip Op 52266[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). The Appellate Term found that the defendant insurer failed to submit adequate proof to support their claim of mailing the verification requests. As a result of this evidentiary deficiency, the Appellate Term found that the defendant's time to pay or deny the claim was not tolled and their denials were untimely.
Although there is no case that addresses the specific issue herein, the reasoning in Dilon is applicable to the issue of inadequate proof of verification. Here, while defendant establishes the mailing of the verification requests, they do not establish the substantive portion of the verification inquiry. Thus, the incomplete verification requests did not toll defendant's time to pay or deny the claim and defendant is "precluded from raising most defenses as a result of its untimely denial" (Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 13 Misc 3d 141[A], 2006 NY Slip Op 52266[U], *2). Accordingly, defendant both fails to meet their own prima facie burden for summary judgment and raise an issue of fact in opposition to plaintiff's motion based on its outstanding verification argument (see Zuckerman v City of New York, 49 NY2d 557 [1980];{**70 Misc 3d at 364} St. Anna Wellcare, P.C. v GEICO Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50948[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
[*3]
Based on the foregoing, plaintiff's motion for summary judgment pursuant to CPLR 3212 is granted. Defendant's motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiff's case as premature is denied.
Civil Court of the City of New York, Kings County, May 25, 2017
The Rybak Firm, PLLC, Brooklyn (Mikhail Kopelevich of counsel), for plaintiff.
Richard T. Lau & Associates, Jericho (Jeremy Maline of counsel), for defendant.
Richard J. Montelione, J.
In this action by a provider to recover assigned first-party no-fault benefits, a bench trial commenced and concluded on May 4, 2017. The parties made no pretrial stipulations. Pursuant to the order of the Honorable Steven Z. Mostofsky, dated February 3, 2016, plaintiff "establishe[d] [its] prima facie case" and the amount in dispute is $2,389.76. The order goes on to indicate, "[t]he sole issue for trial shall be whether the verification requests remain[ ] outstanding." There were no witnesses appearing on behalf of either party.
The court left the record open solely to address the legal issue of which party bears the burden of establishing whether the verification requests remain outstanding. In support, defendant submitted a posttrial memorandum by Jeremy Maline, Esq., dated May 18, 2017, and in reply, plaintiff submitted a posttrial memorandum by Oleg Rybak, Esq., dated May 22, 2017. In brief, plaintiff's counsel argued that as the issue of outstanding verification is an affirmative defense, it is the defendant's burden to establish that verification remains outstanding. Defense counsel argued, inter alia, that the order dated February 3, 2016, should be read to indicate that defendant has met its burden of establishing its defense as defendant has proved "timely and proper mailing of the verification requests and mailing of the 120 day denial."
It is well settled that an insurer may toll the 30-day period to pay or deny a claim by [*2]properly requesting verification within 15 business days from its receipt of the proof of claim form or bill. (11 NYCRR 65-3.5 [b]; Psych. & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 5 Misc 3d 723 [Civ Ct, Queens County 2004].) If the
"requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by telephone call . . . or by mail. At the same time the insurer shall inform the applicant and such person's attorney of the reason(s) why the claim is delayed by identifying in{**56 Misc 3d at 683} writing the missing verification and the party from whom it was requested." (11 NYCRR 65-3.6 [b].)
"A claim need not be paid or denied until all demanded verification is provided." (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; Prime Psychological Servs., P.C. v ELRAC, Inc., 25 Misc 3d 1244[A], 2009 NY Slip Op 52579[U] [Civ Ct, Richmond County 2009]; see also Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) As for services rendered on or after April 1, 2013, if the applicant does not provide within 120 calendar days from the date of the initial request either all such verification under the applicant's control or possession or written proof providing reasonable justification for the failure to comply, the insurer may deny the claim. (11 NYCRR 65-3.5 [o].)
In the court's view, defendant's argument that defendant established mailing of the 120-day denial obviates defendant's burden to demonstrate prima facie that it had not received the requested verification is unpersuasive as the sole issue for trial is whether the verification requests remain outstanding. Defendant generally bears the burden of proving its affirmative defense (Manion v Pan Am. World Airways, 55 NY2d 398 [1982]). Defendant failed to present any witnesses at trial to prove that it, in fact, did not receive any response to its verification requests.
Lastly, defense counsel has not cited any case law that would convince this court to find otherwise. To the extent that defense counsel discusses any outstanding discovery in its memorandum, such issue is not before the court and therefore was not considered.
Based on the foregoing, the court finds that the defendant has failed to meet its burden of establishing its affirmative defense of outstanding verification and as the order of the Honorable Steven Mostofsky found that plaintiff established its prima facie case, the Clerk is directed to enter judgment in favor of the plaintiff in the amount of $2,389.76 with applicable statutory attorney's fees, interest, costs and disbursements.
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 16, 2016
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.
Freiberg, Peck & Kang, LLP, Armonk (Yilo J. Kang of counsel), for respondent.
Memorandum.
Ordered that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that, upon the application of Georgia law, the automobile insurance policy had been rescinded ab initio, and, thus, there was no coverage for the July 18, 2011 accident in question. By order entered June 18, 2014, the Civil Court granted defendant's motion.
It is uncontroverted that defendant had issued a Georgia automobile insurance policy to the brother of plaintiff's assignor, "effective from August 28, 2010 through August 28, 2011," who had made various representations to defendant in his insurance application, including that he resided in Georgia, that the insured vehicle was garaged in Georgia, and that the assignor was an adult who resided in his Georgia household and also drove the insured vehicle. On July 18, 2011, the assignor was involved in an automobile accident while driving the insured vehicle in Brooklyn, NY. In support of its motion for summary judgment dismissing the complaint, defendant argued, among other things, that there was a conflict between the laws of Georgia and New York regarding the retroactive rescission of automobile insurance policies, that Georgia law controlled herein, and that, pursuant to Georgia Code Annotated § 33-24-7, the Georgia automobile insurance policy in question had been retroactively rescinded after defendant had discovered that the assignor, in fact, lived in Brooklyn, NY and garaged the insured vehicle on the street in Brooklyn.
Upon a review of the record, we find that defendant failed to show that there is a conflict between the laws of Georgia and New York with respect to the retroactive rescission of an automobile insurance policy which has been issued to a natural person for a private passenger vehicle, as both states prohibit{**58 Misc 3d at 55} the retroactive rescission of such a policy (see Vehicle and Traffic Law § 313; Matter of Government Empls. Ins. Co. v Nichols, 8 AD3d 564 [2004]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 58 [2000]; see also Georgia Code Ann §§ 33-24-44, 33-24-45; Sentry Indem. Co. v Sharif, 248 Ga 395, 282 SE2d 907 [1981]; Liberty Ins. Corp. v [*2]Ferguson, 263 Ga App 714, 589 SE2d 290 [2003]; FCCI Ins. Group v Rodgers Metal Craft, Inc., 2008 WL 2951992, *7-8, 2008 US Dist LEXIS 57649, *21-23 [MD Ga, July 28, 2008, No. 4:06-CV-107 (CDL)]; cf. T.J. Blake Trucking, Inc. v Alea London, Ltd., 284 Ga App 384, 643 SE2d 762 [2007] [upholding a retroactive rescission pursuant to Georgia Code Annotated § 33-24-7 where the insurance policy was issued to a corporation, not "a natural person"]). Under Georgia law, automobile insurance policies that are issued to "a natural person" for a "private passenger" vehicle cannot be retroactively rescinded pursuant to Georgia Code Annotated § 33-24-7, but may be prospectively cancelled pursuant to the procedure set forth in Georgia Code Annotated § 33-24-45 "which specifically regulates the cancellation of automobile insurance policies" (Liberty Ins. Corp. v Ferguson, 263 Ga App at 715-716, 589 SE2d at 291; see also Sentry Indem. Co. v Sharif, 248 Ga 395, 282 SE2d 907 [1981];[FN*] FCCI Ins. Group v Rodgers Metal Craft, Inc., 2008 WL 2951992,{**58 Misc 3d at 7} *7-8, 2008 US Dist LEXIS 57649, *21-23), and does not allow retroactive rescission (see Georgia Code Ann §§ 33-24-44 [d]; 33-24-45 [b]).
In view of the foregoing, defendant failed to show that the automobile insurance policy was retroactively rescinded and, thus, that there was no coverage for the July 18, 2011 accident.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Solomon and Elliot, JJ., concur.
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 17, 2016
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.
Peter C. Merani, P.C., New York City (Eric M. Wahrburg of counsel), for respondent.
Memorandum.
Ordered that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the insurance policy covering the vehicle allegedly involved in the March 26, 2010 motor vehicle accident had been terminated on March 16, 2010, prior to the accident. Plaintiff appeals from an order of the Civil Court which granted defendant's cross motion for summary judgment dismissing the complaint and implicitly denied plaintiff's motion for summary judgment.
In support of its cross motion, defendant submitted its senior field support representative's affidavit accompanied by documents which, together, demonstrated that, on December 17, 2009, in compliance with Vehicle and Traffic Law § 313 (1), defendant had mailed a letter to the policyholder notifying it that, due to "missing information or no response to our underwriting inquiry," the policy would terminate on March 16, 2010. However, although the affidavit referred to an annexed{**54 Misc 3d at 48} document purportedly showing a record of defendant's March 17, 2010 notification to the Department of Motor Vehicles (DMV) of defendant's March 16, 2010 termination of the policy, these submissions did not conclusively establish, as a matter of law, that defendant's notice of termination had been properly filed with the DMV (see e.g. Matter of Government Empls. Ins. Co. v Barthold, 194 AD2d 724 [1993]). As defendant failed to demonstrate, as a matter of law, that it had filed a copy of the notice of termination, upon which its defense is based, with the DMV within 30 days of the effective date of the policy's termination, as required by Vehicle and Traffic Law § 313 (2) (a) (see Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]), defendant did not show that the cancellation was effective with respect to plaintiff's assignor, who was not the named insured or a member of the insured's household (Vehicle and Traffic Law § 313 [3]). Consequently, defendant should not have been awarded summary judgment dismissing the complaint.
With respect to plaintiff's motion for summary judgment, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of [*2]law, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff's motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Civil Court of the City of New York, Kings County | 19 Nov 2025 | 2025 N.Y. Misc. LEXIS 9581 | New York
Judges: Odessa Kennedy, J.
Representation: Plaintiff: The Rybak Firm PLLC; Defendant: Marshall Dennehy
Result: Rybak Firm WON (in part) because the court granted plaintiff’s motion to the extent of finding that plaintiff established submission of bills and defendant failed to properly pay or deny them under No-Fault regulations, while defendant’s summary judgment motion was denied as untimely and unsupported due to failure to prove the alleged September 2021 filing of its motion.
Index No. CV-726274-22
The Rybak Firm PLLC, Brooklyn, for Plaintiff.
Hollander Legal Group, P.C., Melville, for Defendant.
Sandra E. Roper, J.
Recitation, as required by CPLR §2219(a) of the papers considered in review of this Motion:
Papers
P's motion for summary judgment 1
D's XM for summary judgment 2
P's opposition 3
Upon the foregoing cited papers, and after oral argument made on the Record on December 11, 2025, the Decision/Order on Plaintiff's Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment is as follows:
Plaintiff's motion is GRANTED to the extent that Plaintiff establishes its prima facie case for all purposes.
Defendant's cross-motion is DENIED.
Under CPLR § 3212(b), a court may grant summary judgment only where the movant establishes its cause of action or defense sufficiently to warrant judgment as a matter of law, and must deny the motion if any party shows facts requiring a trial of any issue of fact (see CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment is a drastic remedy and should be granted only where no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The proponent bears the initial burden of making a prima facie showing of entitlement to judgment by tendering evidence that eliminates any material issues of fact; failure to do so requires denial regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In deciding the motion, the court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences (see Vega, 18 NY3d at 503; De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2d Dept 2009]).
Defendant premises its argument on a transcript of the examination under oath ("EUO") of Plaintiff Owner taken on September 16, 2019, that although unsigned was sent to the witness for execution on October 19, 2019 and November 15, 2019 in accordance with CPLR 3116(A). Defendant's position that at the September 16, 2019 EUO, in lieu of completing the EUO and subjecting Plaintiff to the verification process afforded by the New York State No-Fault Statute, Plaintiff Owner, in his capacity as sole shareholder of Plaintiff, agreed to withdraw, "any and all claims that were submitted to Nationwide or any of its' subsidiaries and affiliates with respect to any date of service September 16, 2019 or prior," including "any claims . . . that currently have been submitted to Nationwide or may in the future be submitted to Nationwide " (tr at 123, lines 3-24). However, on the very next page of the transcript it is indicated that a separate affidavit of waiver of previous claims or walk-away would be prepared afterward (tr at 123, lines 7-17). Defendant failed to proffer any such document to be considered herein.
Defendant's sole reliance on the alleged admissions against interest contained within the transcript is misplaced. Most notably, contained therein was the reporter's on the record notation as to an off the record discussion prior to Plaintiff Owner's statements of withdrawal of claims, which in and of itself raises greater than a mere scintilla of a triable issue of fact to defeat judgment as a matter of law. Indeed, Plaintiff Owner's assent to withdraw all prior claims is insufficient, particularly where the EUO was held for different and distinct claimants, claims and claim numbers than in this instant matter. Rather, it is Plaintiff Owner's intent in making those statements which becomes the gravamen herein. It is well established, issues as to state of mind intent are issues of fact to be determined at trial and not determinable for judgment as a matter of law. Thus, Defendant failed to satisfy its burden for judgment as a matter of a law in the first instance. However, in response to Defendant's further argument that in the Plaintiff Owner's rebuttal affirmation he never addressed his admissions in the transcript, This Court arguendo hypothesized that if indeed Defendant had met its' burden for judgment as a matter of law in the first instance, upon shifting of the burden in rebuttal, Plaintiff would have absolutely met its burden to defeat Defendant's judgement as a matter of law, since his mere making of the affirmation and not the contents contained therein, is sufficient to show inconsistency of intent. Nevertheless, This Court reiterates its finding that Defendant failed to meet its burden in the first instance obviating the shifting of the burden of rebuttal to Plaintiff.
Accordingly, this matter is to proceed to trial as to Defendant's prima facie and defenses.
This constitutes the decision and order of the Court.
The undersigned attorneys certify that none of the cases cited within this case or this motion were drafted using, in any capacity, generative artificial intelligence programs, pursuant to In Augustin v. Formula 3 Brook, Inc., 2025 NY Misc. LEXIS 6143, 2025 NY Slip Op 51113(U), 86 Misc 3d 1236(A) (Kings Co. Sup. Ct. July 26, 2025).
Counsel for Plaintiff - Printed Name and Initials: Richard Rozhik, RR.
Counsel for Defendant - Printed Name and Initials: Christopher Volpe, CV
DATE December 12, 2025
HON. SANDRA E. ROPER
Decided on May 17, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-130 K C
Akai Acupuncture, P.C., as Assignee of Brown, Hopeton, Appellant,
against
Foremost Property and Casualty Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered December 7, 2022. The order, insofar as appealed from, granted the branch of defendant's motion seeking to dismiss the complaint and implicitly denied plaintiff's cross-motion for summary judgment.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to dismiss the complaint is denied; 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 for services rendered to its assignor as a result of a motor vehicle accident that occurred on April 23, 2014, plaintiff appeals from so much of an order of the Civil Court (Rupert V. Barry, J.) as granted the branch of defendant's motion seeking to dismiss the complaint and implicitly denied plaintiff's cross-motion for summary judgment.
It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant, the policy had been cancelled, prior to the accident at issue, by letter sent to the insured on February 24, 2014, effective March 8, 2014, for nonpayment of the premium.
On appeal, neither party disputes that Florida law applies, which law requires that a notice of cancellation of a policy for nonpayment of an insurance premium be "mailed or delivered" to the insured 10 days prior to the effective cancellation date (see Fla Stat Ann § 627.728 [3] [a]). In 2014, Florida Statutes § 627.728 (5) provided as follows:
For purposes of this statute, "United States postal proof of mailing . . . means a United States postal proof of mailing which conforms to the requirements of United States postal regulations" (Aries Ins. Co. v Cayre, 785 So 2d 656, 658 [Fla Dist Ct App, 3d Dist 2001]).
In support of its motion, defendant submitted a "Certificate of Mail List" which lists various mailings, including one to the insured; however, that list is not date-stamped or signed or otherwise marked in any way by the USPS. The only proof of mailing submitted by defendant that was certified by the USPS is a Certificate of Bulk Mailing, which shows that over 2,000 pieces of mail were sent on the day in question. Defendant failed to show that this form constituted "proof of mailing which conforms to the requirements of United States postal regulations" (Aries Ins. Co., 785 So 2d at 658). Indeed, according to the USPS website, a Certificate of Bulk Mailing "is used to specify only the number of identical-weight pieces mailed; it does not provide evidence that a piece was mailed to a particular address" (see Munger v Infinity Ins. Co., 2015 WL 5922185, *6, 2015 US Dist LEXIS 138294, *14-15 [MD Fla, Oct. 9, 2015, No. 8:14—cv—914—T—36JSS] ["a Certificate of Bulk Mailing for the Nonpay Notice . . . does not qualify as a United States postal proof of mailing, since it only acknowledges that a certain number of pieces of mail were included in a particular bulk mailing"]). Similarly, the affidavit submitted by defendant in support of its claim of having provided notice to its insured failed to demonstrate actual mailing or that defendant had mailed the cancellation notice in accordance with its standard office practices and procedures (see Aries Ins. Co., 785 So 2d at 660; see also St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, the Civil Court should have denied the branch of defendant's motion which sought to dismiss the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.
Plaintiff's cross-motion for summary judgment was properly denied, as the affidavit plaintiff submitted in support of its cross-motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking to dismiss the complaint is denied.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 17, 2024
Decided on May 2, 2025
PRESENT: : CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2023-1016 K C
Horizon P.T. Care, P.C., as Assignee of Ghee, Anthony, Respondent,
against
Kemper Insurance Company, Appellant.
Goldberg, Miller & Rubin, P.C. (Zachary Whiting of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybakof counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha Alleyne, J.), dated February 27, 2023. The order, insofar as appealed from, denied defendant's cross-motion for, in effect, summary judgment dismissing the complaint and, upon denying plaintiff's motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that "[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant" and limited the issue for trial to "whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter."
ORDERED that the order, insofar as appealed from, is modified by striking so much of the order as, upon denying plaintiff's motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that "[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant" and limited the issue for trial to "whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter"; as so modified, the order, insofar as appealed from, is affirmed, without costs.
Horizon P.T. Care, P. C. (Horizon) commenced this action against defendant Kemper Insurance Company to recover assigned first-party no-fault benefits for services rendered to its assignor, Anthony Ghee, for injuries allegedly sustained in a motor vehicle accident on December 31, 2014. In its answer, defendant identified itself as Unitrin Auto & Home Insurance Company (Unitrin). Before Horizon commenced this action, a declaratory judgment action had been commenced in Supreme Court, New York County, by Unitrin, as the sole [*2]plaintiff, against Horizon, other providers, and the assignor herein, Ghee, alleging that each of the providers including, insofar as is relevant here, Horizon, had breached the terms of the insurance policy in question by failing to appear for duly scheduled examinations under oath (EUOs). Upon the failure of both Horizon and Ghee, among others, to appear in the declaratory judgment action, the Supreme Court, in an order entered December 1, 2016, granted an unopposed motion by Unitrin for leave to enter a default judgment against, insofar as is relevant here, Horizon and Ghee, relating to the motor vehicle accident that occurred on December 31, 2014 involving defendant Anthony Ghee.
Plaintiff moved in the Civil Court action for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. Defendant cross-moved for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by res judicata by virtue of the order in the declaratory judgment action. By order dated February 27, 2023, the Civil Court (Keisha Alleyne, J.) denied defendant's cross-motion and, upon denying plaintiff's motion for summary judgment, found, in effect, pursuant to CPLR 3212 (g), that "[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant" and limited the issue for trial to "whether the [declaratory judgment order in the Supreme Court action] precludes the instant matter."
Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]). In the case at bar, contrary to defendant's contentions on appeal, it failed to proffer sufficient evidence upon its cross-motion to support its assertion that Unitrin is "the proper insurer" (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; cf. Healthwise Med. Assoc., P.C. v Nationwide Ins., 77 Misc 3d 133[A], 2022 NY Slip Op 51251[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Kemper Ins. Co., 77 Misc 3d 132[A], 2022 NY Slip Op 51240[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). As a result, defendant failed to demonstrate at this juncture that the declaratory judgment action brought by Unitrin, not defendant herein, constitutes "a final adjudication of [the present claims] on the merits" between the same parties (Ciraldo, 140 AD3d at 913; see Matter of Hunter, 4 NY3d 260; Schuylkill Fuel Corp., 250 NY 304). Consequently, defendant's cross-motion for, in effect, summary judgment dismissing the complaint as barred by res judicata was properly denied.
However, defendant correctly argues that the record does not support finding as "incontrovertible" or "established for all purposes in the action" (CPLR 3212 [g]) that "[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant" and or to limit the issues for trial to "whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter."
We do not consider defendant's argument, raised for the first time on appeal, that the subject action is barred by collateral estoppel (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]). We note, however, that, since Horizon defaulted in appearing in the declaratory [*3]judgment action, the EUO no-show issue was not actually litigated (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Parisien v Kemper Ins. Co., 76 Misc 3d 18 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
Accordingly, the order, insofar as appealed from, is modified by striking so much of the order as, upon denying plaintiff's motion for summary judgment, found, in effect pursuant to CPLR 3212 (g), that "[p]laintiff established their prima facie case by timely and properly submitting the bills to the [d]efendant" and limited the issue for trial to "whether the [declaratory judgment order in a Supreme Court action] precludes the instant matter."
BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:
Chief Clerk
Decision Date: May 2, 2025
Decided on August 13, 2024
PRESENT: : CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
2023-773 K C
John A. Nasrinpay, as Assignee of Cange, Pouchon, Appellant,
against
National General Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Michael J. Giordano of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Derefim B. Neckles, J.), dated June 14, 2023, as amended by an order of that court dated January 12, 2024. The order, as amended, denied plaintiff's motion for summary judgment and granted defendant's cross-motion for summary judgment dismissing the complaint.
ORDERED that the order, as amended, is modified by providing that defendant's cross-motion for summary judgment dismissing the complaint is denied; as so modified, the order, as amended, is affirmed, without costs.
In November 2018, plaintiff John A. Nasrinpay commenced this action against defendant "National General Insurance Company" to recover assigned first-party no-fault benefits for services he rendered to his assignor, who was allegedly injured in an automobile accident on September 28, 2017. In September 2018, "National General Insurance Online, Inc." and New South Insurance Company brought a declaratory judgment action in the Supreme Court, Nassau County, against John A. Nasrinpay and his assignor herein, Pouchon Cange, among other parties, pertaining to the September 28, 2017 accident and then moved for a default judgment against John A. Nasrinpay and Cange, among others, when they failed to answer or appear. Insofar as is relevant to this appeal, Nasrinpay opposed the motion and Cange did not. In a default judgment [*2]entered November 13, 2019 against Cange, among others, and a separate default judgment entered November 21, 2019 against Nasrinpay, among others, the Supreme Court declared that the September 28, 2017 incident was a "Staged Accident" and that "National General Insurance Online, Inc." and New South Insurance Company were not obligated to pay claims for reimbursement submitted by Cange and Nasrinpay, respectively, arising from that incident.
Subsequently, Nasrinpay moved in the Civil Court for summary judgment, asserting that he had provided medically necessary services to his assignor, that the relevant claim form was mailed to defendant "National General Insurance Company," and that defendant had failed to pay or deny the claim. Defendant cross-moved for summary judgment dismissing the complaint on the ground of res judicata or collateral estoppel, based on the aforementioned November 13 and 21, 2019 Supreme Court default declaratory judgments. Nasrinpay appeals from an order of the Civil Court dated June 14, 2023, as amended by an order dated January 12, 2024, denying his motion for summary judgment and granting defendant's cross-motion for summary judgment dismissing the complaint based on the default declaratory judgments issued in the Supreme Court action.
The doctrine of res judicata generally requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912 [2016]; Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It is well settled that default judgments, which have not been vacated, can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]). Moreover, collateral estoppel precludes a party from relitigating an issue where "the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action" (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]; Manko v Gabay, 175 AD3d 484 [2019]). While "[a]n issue is not actually litigated if, for example, there has been a default" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]), collateral estoppel may be applied to default judgments where the party against whom preclusion is sought appears in the prior action (see Miller v Falco, 170 AD3d 707 [2019]).
It was National General Insurance Online, Inc., not defendant herein, that obtained the default declaratory judgment relied upon by defendant for its preclusion argument and, therefore, there is no res judicata effect based on National General Insurance Online, Inc.'s default declaratory judgment against Nasrinpay. Indeed, there has been no attempt to demonstrate that defendant is, in fact, National General Insurance Online, Inc., or even that National General Insurance Online, Inc., and not defendant, is "the proper insurer," requiring the dismissal of the complaint on that basis (see Quality Health Supply Corp., 2020 NY Slip Op 50996[U]). Moreover, as Nasrinpay did not appear in the declaratory judgment action, he did not have a full [*3]and fair opportunity to litigate whether the September 28, 2017 incident was a staged accident and, therefore, there is no collateral estoppel effect against him based on the default declaratory judgment (see Kaufman, 65 NY2d at 456-457). Thus, the Civil Court should have denied defendant's cross-motion.
Nasrinpay's motion for summary judgment was likewise properly denied, as Nasrinpay did not submit any evidence of an address for defendant, and thus failed to establish that the prescribed statutory claim form had been received by defendant (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). In any event, there is a triable issue of fact as to whether defendant was an insurer for this accident.
Accordingly, the order, as amended, is modified by providing that defendant's cross-motion for summary judgment dismissing the complaint is denied.
BUGGS, J.P., MUNDY and HOM, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 13, 2024
Decided on August 28, 2020
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1968 K C
Quality Health Supply Corp., as Assignee of Tassy, Max, Appellant,
against
Hertz Co., Respondent.
The Rybak Firm, PLLC (Damin Toell and Karina Barska of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa Sarah Cohenson of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 6, 2018. The order granted defendant's motion to amend the pleadings and to dismiss the complaint on the ground of res judicata, and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion seeking to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied; as so modified, the order is affirmed, without costs.
Plaintiff Quality Health Supply Corp. (Quality Health) commenced this action against "Hertz Co." to recover assigned first-party no-fault benefits for services provided to plaintiff's assignor, who had allegedly been injured in an accident on July 7, 2015. Prior to the commencement of this action, "Hertz Vehicles, LLC" had brought a declaratory judgment action in the Supreme Court, New York County, against Quality Health and its assignor herein, among other parties, pertaining to the July 7, 2015 accident, and had moved in the Supreme Court for a default judgment against Quality Health and its assignor. In an order entered August 4, 2016, the Supreme Court, upon granting an unopposed motion by Hertz Vehicles, LLC, declared that Hertz Vehicles, LLC was not obligated to pay claims for reimbursement submitted by Quality Health and its assignor. Hertz Co. thereafter moved in the Civil Court for an order pursuant to CPLR 3025 (c), "amending the named defendant in this action to the proper party, 'Hertz Vehicles, LLC.' " Relying upon the Supreme Court's order, Hertz Co. sought the further relief in the Civil Court of dismissing the complaint on the ground that the present action is barred by the doctrine of res judicata. Plaintiff cross-moved for summary judgment and opposed defendant's motion. Plaintiff appeals from an order of the Civil Court entered February 6, 2018 which granted defendant's motion and denied plaintiff's cross motion.
CPLR 3025 (c) provides that "the court may permit pleadings to be amended before or [*2]after judgment to conform them to the evidence." Upon a review of the record, we find that the Civil Court improperly exercised its discretion in granting the branch of defendant's motion seeking to amend the pleadings, as defendant failed to proffer any evidence to support the conclusory statement by its claim representative that Hertz Vehicles, LLC is "the proper party." Defendant also sought an order dismissing the complaint on the ground of res judicata. "Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions" (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as defendant failed to establish that plaintiff had sued the wrong party, there is no demonstration that there had been "a final adjudication of [the present claims] on the merits" (Ciraldo, 140 AD3d at 913; Matter of Hunter, 4 NY3d 260; Schuylkill Fuel Corp., 50 NY 304) in the Supreme Court, and, thus, there is no basis for preclusion, under the doctrine of res judicata, of the Civil Court action against Hertz Co. Consequently, Hertz Co.'s motion should have been denied.
With respect to plaintiff's cross motion for summary judgment, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its motion failed to establish either that the claims at issue had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that Hertz Co.'s motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied.
WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
Supreme Court of New York, New York County | 29 Jun 2012 | 2012 N.Y. Misc. LEXIS 6461 | New York
Judges: Hon. Ellen M. Coin, A.J.S.C.
Representation:
Plaintiffs Liberty Mutual Insurance Co. & Liberty Mutual Fire Ins. Co.: Burke, Gordon & Conway (Liberty Mutual in- house counsel)
Defendants Medical Provider Defendants (including Active Care Medical Supply Corp., Alleviation Medical Services, P.C., Five Boro Psychological & LMSW Services PLLC, Ultimate Care Chiropractic, P.C.): The Rybak Firm PLLC (Oleg Rybak, Esq.), and other defense counsel for additional providers
Result: Rybak Firm won because the court denied Liberty Mutual’s preliminary injunction and declaratory relief request, finding Liberty failed to establish a likelihood of success on the merits—specifically failing to properly prove EUO notice mailing, failing to submit the insurance policy requiring EUOs, and otherwise lacking sufficient admissible proof to justify injunctive relief, even though irreparable harm was shown.
Decided on May 17, 2019
against
Amica Mutual Insurance Company, Defendant.
Attorney for plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, New York 11235
Attorney for defendant
Lawrence N. Rogak, Esq.
Lawrence N. Rogak LLC
3355 Lawson Boulevard
Oceanside, New York 11572
Odessa Kennedy, J.
Recitation, as required by CPLR 2219 (a) of the papers considered in the review of this motion:
Notice of Motion and Affirmation in Support 1,2
Notice of Cross-Motion and Affirmation in Support 3,4
Affirmation in Opposition to the Cross-Motion 5
The Court hereby sua sponte vacates its decision and order dated November 15, 2017, and substitutes the following:
In an action to recover assigned first-party no-fault insurance benefits arising from an accident which occurred on October 1, 2015, defendant moves for summary judgment based on plaintiff's assignor's alleged failure to appear for an examination under oath ("EUO") and upon the defense of policy exhaustion. Plaintiff cross-moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant's affirmative defenses pursuant to CPLR 3211(b).
It is well settled that summary judgment is a drastic remedy (See Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]), which should not be granted if there is any doubt as to the existence of a triable issue of fact. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]). Hence, the court's function in determining such a motion, is issue finding, not issue determination. (Id. Sillman supra at 404).
To prevail, the movant must establish entitlement to judgment as a matter of law, by submitting admissible evidentiary proof. (See Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Absent such a showing, the motion must be denied regardless of the sufficiency of opposing papers. (See Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]).
APPEARANCE DEFENSE
While plaintiff's non-appearance at an EUO vitiates defendant's obligation to provide coverage (see Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]), to show entitlement to summary judgement, defendant must prove that it properly mailed the EUO requests to the plaintiff, who failed to appear for the EUO, and that defendant mailed plaintiff a timely denial. (Interboro Ins. Co. v Clennon, 113 AD3d 596, 979 N.Y.S.2d 83, 2014 NY Slip Op 00092 [2d Dept 2014]).
Proof of mailing may be shown based on actual mailing or that the item was mailed pursuant to the affiant's standard office practices and procedures designed to ensure proper mailing (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211, 2008 NY Slip Op 04072 [2d Dept 2008]). Defendant's affidavit submitted in the case at bar, fails to establish that the described procedures was designed to ensure that the EUO letters were addressed to the correct recipient and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 7 N.Y.S.3d 429, 2015 NY Slip Op 03340 [2d Dept [*2]2015]).
To establish the proper mailing of the EUO requests, defendant submits an affidavit from its claim representative, Christina Valentin. Ms. Valentin states that an EUO notice was sent to plaintiff's assignor, on December 9, 2015, scheduling the EUO for January 6, 2016; and upon assignor's non-appearance, a follow up notice was sent on January 7, 2016 re-scheduling the EUO for February 9, 2016. Ms. Valentin describes the documents which purport to the be the notices as " true and accurate copies of the scheduling notices sent by the Law offices of Lawrence N. Rogak LLC" to plaintiff's assignor.
Contrary to Ms. Valentin's statement, however, the EUO notices which were attached to defendant's motion are not generated by the Law Office of Lawrence N. Rogak LLC, but by the Law Firm of Milber Makris Plousadis & Beiden, LLP. Ms. Valentin's assertions are further erroneous in that the notices seek an EUO of the plaintiff's employee, Dr. Darren T. Mollo, DC, and not of plaintiff's assigner, who notably is not even among the named claimants listed in the notices. Thus, defendant fails to establish that it requested an EUO of plaintiff's assignor, and further, that it accurately addressed and mailed the request to him. Each of said deficiencies, warrants denial of defendant's motion.
In addition, defendant fails to meet its burden of showing that plaintiff's assignor failed to appear for the EUOs. (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, to establish burden of plaintiff's failure to appear for a scheduled EUO, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).
In the instant matter, the only indication of plaintiff's assignor's nonattendance at the EUO is defense counsel's conclusory affirmation in support of the instant motion which is devoid of evidence of his personal knowledge of the alleged non-attendance. Counsel neither indicates whether he was assigned to conduct the EUO nor whether he was present at the EUO. Accordingly, defendant's motion is further denied on the basis of failure to establish the assignor's EUO non-appearance.
Moreover, defendant fails to show the timeliness of its denial. "A claim need not be paid or denied until all demanded verification is provided." (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2d Dept 2004]; 11 NYCRR 65-3.5 [c]; 65-3.8 [a] [1].) If plaintiff fails to provide the requested verification within 120 calendar days from the date of the initial request, the insurer may deny the claim. (11 NYCRR 65-3.5 [o]). No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, (11 NYCRR 65-3.8(a)(1)),
According to the denial, the "final verification" requested was on January 31, 2016. Yet, the moving papers contain no verification request, or any document dated January 31, 2016. As discussed above, the only verification requests annexed to defendant's papers pertain to claimants whose treatment is not at issue in the instant action.
As defendant has failed to establish entitlement to judgment as a matter of law on the issues of proper mailing of the EUO request, the nonappearance of the plaintiff's assignor at the EUOs and the timeliness of its denial, its motion for summary judgment, based on the EUO [*3]nonappearance is denied.
POLICY EXHAUSTION DEFENSE
Defendant also seeks to dismiss the complaint on the basis that its policy limits have been properly exhausted.An insurer is not required to pay a claim where the policy limits have been properly exhausted (Hospital for Joint Diseases v. State Farm Mut. Auto Ins. Co., 8 AD3d 533 [2nd Dept., 2004]). An insurer's payment of full monetary limits set forth in the policy, terminates its duties under the contract (Presbyterian Hosp. in City of New York v. Liberty Mut. Ins. Co., 216 AD2d 448 [2nd Dept., 1995]).
Moreover, when an insurer receives claims for more than $50,000, payments for claims that are submitted prior to the exhaustion of the $50,000 shall be made in the order in which each service was rendered or each expense was incurred (11 NYCRR 65-3.15; Alleviation Medical Services, P.C. v. Allstate Ins. Co., 55 Misc 3d 44 [App. Term, 2nd Dept., 2d, 11th & 13th Jud. Dists., 2017]).
In the case at bar, to demonstrate the policy's exhaustion based on priority of payment when defendant received the bill, defendant relies on a payment "ledger" which it contends is admissible based on its claim examiner's statement that the document is "a true and accurate copy of the payment ledger maintained on this claimant." Defendant, however does not satisfy the evidentiary requirements of CPLR §4518 absent information regarding who or by whom the ledger was created or maintained, or whether the data in the ledger was recorded contemporaneously or soon after the occurrence. As defendant must prove its defense in admissible form, the failure to establish the evidentiary foundation of the ledger, which is the essence of its policy exhaustion defense, warrants denial of its motion.
Aside from its inadmissibility, the ledger's ambiguity, further prevents defendant from demonstrating the exhaustion defense. The ledger does not specify when defendant received any of the prior bills leading to the exhaustion of the policy, but contains vague headings such as 'paid date,' 'service period start' and 'service period end' without proof that any of the headings represent the date that defendant in fact received or paid the bill at issue.
Finally, defendant fails to establish that its exhaustion of policy defense was based on proper priority of payment of claims. The term "claims," in the priority of payment regulation excludes claims that are incomplete because verification requests are outstanding (Nyack Hospital v. General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, while an insurer awaits verification of an unverified claim, it may pay subsequently received verified claims, even if that will result in exhaustion of the policy before the requested verification is finally received (Id.).
In the instant matter, defendant admits receipt of the bills at issue on December 16, 2015, when, as per the ledger, the entire $50,000 policy was still available to pay claims since no claims had been yet been paid. Since defendant has failed show that the 30-day period it had to pay the bill was tolled by a properly mailed verification request or by non-compliance with such verification, it failed to justify its nonpayment within the 30-days.
Defendant has failed to establish as a matter of law either the defense of EUO non-appearance or that of policy exhaustion. Thus, its motion for summary judgment is denied.
PLAINTIFF'S CROSS-MOTION
In opposition to the plaintiff's cross-motion for summary judgment, defendant attaches a copy of a decision in Budget Truck Rental, LLC v. Mollo, Index No.: 150666/15 [Sup. Court, NY County, Lebovits, J.] which included a finding that the time that plaintiff in this case was not [*4]properly incorporated when it submitted its billing in that case which arose from a November 7, 2013 accident and therefore not entitled to payment for those bills.
If it is proven in this case that the plaintiff was ineligible to receive payment as of the date services were rendered, that would constitute a defense. (See, e.g., State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]) Although the defendant presents no denial of claim on this basis of improper or fraudulent incorporation of the plaintiff, it is nonwaivable and may be asserted at any time notwithstanding the absence of a timely denial. (Lexington Acupuncture, P.C. v. General Assur. Co., 35 Misc 3d 42 [App Term, 2d Dept 2012]). Accordingly, there are material issues of fact as to plaintiff's corporate status at the time that services were rendered necessitating the denial of plaintiff's cross-motion.
All of the motions before this court are denied with one exception. Plaintiff's cross-motion pursuant to pursuant to CPLR 3212(g) is granted only to the extent that it has been established that the bills at issue were mailed to and received by the defendant.
Dated: May 17, 2019
Decided on January 2, 2019
against
Allstate Insurance Company, Defendant.
For Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Ave.-3rd Floor-Suite 7, Brooklyn, NY 11235 (718) 569-7040
For Defendant: Abrams, Cohen & Associates, 5 Hanover Square, Suite 1601, New York, NY 10004, (646) 449-7490
Richard J. Montelione, J.
Plaintiff's motion and defendant's cross-motion for summary judgment pursuant to CPLR 3212 came before the court on October 18, 2018. In addition to the oral arguments of counsel, the court has considered the following listed submissions of the parties, pursuant to CPLR 2219(a):
Title Number
Plaintiff's Notice of Motion undated; Attorney Affirmation of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on October 13, 2017 (Exhibit 2); and Exhibits 1-5 (inclusive of the foregoing affidavit) 1
Defendant's Notice of Cross-Motion dated June 27, 2018; Attorney Affirmation of Jeff Winston, Esq., affirmed on June 28, 2018; Affidavit of Yamile Souffrant, sworn to on June 18, 2018 (Exhibit B); Affidavit of John Niles, sworn to on May 1, 2018 (Exhibit B); and Exhibits A-K (inclusive of the foregoing affidavits) 2
Plaintiff's Attorney Affirmation in Opposition of Oleg Rybak, Esq., undated; Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 2); Affidavit of Ciffy Chelle, sworn to on September 14, 2018 (Exhibit 3); and Exhibits 1-3
In this action by a provider to recover assigned first party no-fault benefits, plaintiff moves for summary judgment arguing that it established its prima facie entitlement to recovery of its unpaid no-fault bills. Defendant cross-moves for summary judgment based upon plaintiff's [*2]purported failure to appear for four Examinations Under Oath ("EUO") or alternatively, based upon defendant's founded belief that the alleged accident was an intentional loss and therefore, the alleged accident is not a covered event.
Plaintiff argues, inter alia, that the affidavits proffered by defendant are conclusory and insufficient to establish that the EUO letters and denials were timely and properly mailed. Specifically, plaintiff argues that the address on the EUO letters and denials are different and defendant failed to establish that the letters were sent to the correct address. Plaintiff further argues that the non-appearances at the scheduled EUOs were not established as the transcripts proffered did not sufficiently provide personal knowledge of plaintiff's assignor's purported non-appearances.
Where an insurer moves for summary judgment dismissing the complaint on the ground that a provider's assignor failed to appear for an EUO, to establish its prima facie case, the insurer need only establish "as a matter of law that it twice duly demanded an [EUO] from the [provider's] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claims arising from the [provider's] treatment of the assignor" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [App. Div. 2nd Dept 2014]; see also 11 NYCRR § 65.15(d); Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50928[U][App Term 2nd Dept 2016]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51653[U][App. Term 2nd Dept. 2015]; Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622[U][App Term 9th & 10th Jud. Dists. 2011]; Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept. 2006]).
Moreover, it is well settled and established that an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698 [App. Div. 2nd Dept 2006]; Eagle Ins. Co. v. Davis, 22 AD3d 846 [App. Div. 2nd Dept. 2005]). An insurer asserting a lack of coverage defense must set forth admissible evidence of "the fact or [a] founded belief that the alleged injury does not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]; St. Luke's Roosevelt Hosp. v. Allstate Ins. Co., 303 AD2d 743 [App. Div. 2nd Dept. 2003]; Ocean Diagnostic Imaging P.C. v. Allstate Ins. Co., 6 Misc 3d 134[A], 134A [App. Term 2nd Dept. 2005]; Amaze Med. Supply, Inc. v. Utica Mut. Ins. Co., 26 Misc 3d 129(A), 129A [App. Term 2nd Dept. 2009]). "[A]n insurer's evidence of a purposeful collision will often be circumstantial. This is to be expected; in the absence of a mea culpa from one of the participants, the insurer—and ultimately the court—must examine the facts and circumstances of the incident to determine whether they give rise to an inference of lack of coverage. Circumstantial evidence is sufficient if a party's conduct 'may be reasonably inferred based upon logical inferences to be drawn from the evidence. (internal citation omitted)'" (V.S. Medical Services, P.C. v Allstate Ins. Co., 11 Misc 3d 334 [Civ. Ct. Kings Cty. 2006], aff'd, 25 Misc 3d 39 [App. Term 2nd Dept. 2009]).
Upon review of defendant's EUO no-show defense, the court finds that the denials issued in this matter were untimely as they were issued on February 2, 2016 and the last EUO was scheduled on December 7, 2015. Defendant had 30 days from the last EUO in which defendant was required to pay or deny the claims (see 11 NYCRR § 65—3.8[a][1]) and as defendant did not do so in this case, the defense is precluded.
Defendant proffers the EUO transcripts of the passengers and assignor, Bernetta Green, [*3]Craig Alexander and Tara Thomas, and as to the date of loss of August 14, 2015 [FN1] , to demonstrate that the incident was a caused loss and defendant contends that the same established its founded belief that there was a material misrepresentation of the claims; namely, that the accident was in fact, not an accident, but a purposeful collision. Specifically, defendant's founded belief is based upon the inconsistent testimonies between the parties.
Upon a review of the EUO transcript, the court notes that while their testimonies were vague and at times, inconsistent, their recollections are not sufficient to demonstrate that a purposeful collision occurred. Even in considering whether circumstantial evidence exists to demonstrate that there may have been a purposeful collision, the vague testimonies of the parties are not sufficient. Moreover, defendant did not proffer any affidavit from an investigator who can elaborate on why the inconsistencies demonstrate intentional losses. Without a cogent and detailed investigative summary of this type of alleged intentional loss and solely relying on the transcripts alone in this matter, the testimonies given do not rise to the level of a founded belief that the accident was staged. As such, defendant's proofs are insufficient to raise a triable issue of fact.
Plaintiff established its prima facie case through the affidavit of Ciffy Chelle, plaintiff's employee and the bills annexed to the motion (see Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 [2015]).
Therefore, based upon the foregoing, defendant's motion for summary judgment is denied. Plaintiff's cross-motion for summary judgment is granted and plaintiff may enter judgment in the amount of $534.32, together with applicable statutory interest, attorneys' fees and costs.
This constitutes the Decision and Order of the court.
Dated: January 2, 2019
Richard J. Montelione, J.C.C./A.J.S.C.
Decided on April 9, 2019
against
Omni Indemnity Co., Defendant.
Attorney for the Plaintiff: The Rybak Firm, PLLC, 1810 Voorhies Avenue, 3rd Floor Suite 7, Brooklyn, New York 11235
Attorney for the Defendant: Freiberg, Peck & Kang, LLP, 200 Business Park Drive, Suite 200, Armonk, New York 10504
Consuelo Mallafre-Melendez, J.
This is an action by a provider to recover assigned first-party no-fault benefits. Defendant moves for summary judgment pursuant to CPLR 3212. Plaintiff opposes Defendant's motion and cross moves for summary judgment for payment of medical bills incurred from its treatment of assignor, Eduardo Olaveria.
On April 8, 2015 the insured, Eimy Peguero, applied for and was issued a Pennsylvania automobile insurance policy with Defendant. On her application, Ms. Peguero stated that she resided and garaged the vehicle at her residence in Reading, Pennsylvania. On June 3, 2016, Ms. Peguero's common law husband, Eduardo Olaveria, was allegedly injured when Ms. Peguero's car was hit in the rear as he was driving in the Bronx. Mr. Olaveria underwent treatment by Plaintiff and filed for No-Fault benefits. On October 10, 2016 Defendant, through their attorneys, conducted an Examination Under Oath (EUO) of Mr. Olaveria and its insured Ms. Peguero. It is noted that Mr. Olaveria required an interpreter during the examination. Defendant claims that as a result of her testimony during the EUO they determined that Ms. Peguero made material misrepresentations in the procurement of the insurance policy. As a result, Defendant retroactively rescinded Ms. Peguero's policy and returned all premiums paid.
In its motion for summary judgment Defendant argues that Pennsylvania law applies to this matter. Pennsylvania law permits retroactive rescission of a policy where the undiscovered [*2]fraud was of such a nature that it is clear an insurer would never have accepted the risk inherent in issuing the policy. Defendant claims that as the policy was void ab initio, no policy coverage exists from which Plaintiff can recover and the action must be dismissed.
In determining a conflicts of law issue, the first inquiry must be whether there is an actual conflict between the laws of the two jurisdictions (See Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Shaw v. Carolina Coach, 82 AD3d 98 [2d Dept. 2011]; Bonded Waterproofing Servs., Inc. v. Anderson-Bernard Agency, Inc., 86 AD3d 527 [2d Dept. 2011]; Jimenez v. Monadnock Construction, Inc., 109 AD3d 514 [2d Dept. 2013]). In this case there is clearly a conflict because Pennsylvania law gives an insurer a common law right to retroactively rescind an automobile insurance policy within a reasonable time of a discovered fraud or a material misrepresentation of such nature that the insurer would not have assumed the risk (Erie Insurance Exchange v. Lake, 543 Pa. 363 [1996]). New York, on the other hand, does not permit the retroactive cancellation of an automobile insurance policy. "It is well settled that Vehicle and Traffic Law § 313 'supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively'" (Matter of Metlife Auto & Home v. Agudelo, 8 AD3d 571, 572 [2d Dept. 2004] quoting Matter of Liberty Mut. Ins. Co. v. McClellan, 127 AD2d 767, 769 [2d Dept. 1987]; see Matter of Integon Ins. Co. v. Goldson, 300 AD2d 396, 397 [2d Dept. 2002]; Matter of Insurance Co. of N. Am. v. Kaplun, 274 AD2d 293, 297—298 [2d Dept. 2000]; Matter of Global Liberty Insurance co. of NY v. Pelaez, 84 AD3d 803 [2d Dept. 2011]).
Having established that a conflict of laws exists, the court must next determine whether the applicable rules lie in principles governing torts or contracts. The Second Department holds that such an issue arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts (Unitrin Direct/Warner Ins. Co. v. Brand, Supreme Court, 120 AD3d 698 [2d Dept. 2014]); Matter of Eagle Ins. Co. v. Singletary, 279 AD2d 56 [2d Dept. 2000]; Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d at 226; Zurich Ins. Co. v. Shearson Lehman Hutton, 84 NY2d 309 [1994]).
To determine which state's laws apply, the courts use the flexible "'center of gravity' or 'grouping of contacts' inquiry, which permits consideration of the 'spectrum of significant contacts' in order to determine which state has the most significant contacts to the particular contract dispute" (Matter of Eagle Ins. Co. 279 AD2d at 58—59 quoting Matter of Allstate Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d at 226; Matter of Midland Ins. Co., 16 NY3d 536, 543 [2011]; Jimenez v. Monadnock Constr., Inc, 109 AD3d). "In general, significant contacts in a case involving contracts, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties" (Matter of Eagle Ins. Co., 279 AD2d at 59). "In the context of liability insurance contracts, the jurisdiction with the most 'significant relationship to the transaction and the parties' will generally be the jurisdiction 'which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other [jurisdiction] has a more significant relationship'" (Matter of Midland Ins. Co., 16 NY3d at 544, quoting Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d at 318). "In the case of a noncommercial vehicle, which is by its nature mobile, the principle [*3]location of the insured's risk is the place where the vehicle is to be principally garaged" (Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 59 citing Restatement [Second] of Conflict of Laws § 193, Comment c).
Here, when Ms. Peguero applied for her automobile insurance policy in Pennsylvania, she indicated on her application that she resided in Pennsylvania and owned a vehicle that was registered and garaged in Pennsylvania. Ms. Peguero's driver's license is also issued by the State of Pennsylvania. The Defendant is an insurance company doing business in Pennsylvania. The only connection to New York State in this matter is that Plaintiff's assignor, the insured's common law husband, was injured while driving the insured vehicle in New York. Therefore, under New York's conflict of law rules, Pennsylvania law is controlling in this matter (see Compass Medical, P.C. v. Infinity Group, 46 Misc 3d 146[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v. Infinity Group, 43 Misc 3d 130[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2014]; Optimal Well—Being Chiropractic, P.C. v. Infinity Ins. Co., 46 Misc 3d 27 [App Term, 2d Dept, 11th & 13th Jud Dists 2014]; Matter of Government Empls. Ins. Co. v. Nichols, 8 AD3d 564 [2d Dept. 2004]; Matter of Eagle Ins. Co. v. Singletary, 279 AD2d at 58).
In support of its motion for summary judgment, Defendant submits the EUO transcripts of Eimy Peguero and Eduardo Olaveria. Defendant submits these EUO transcripts in admissible form as the testimonies therein were obtained under oath (see Rodriguez v. Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Zabari v. City of New York, 242 AD2d 15 [1st Dept.1998]; Jamaica Dedicated Medical Care, P.C. v. Praetorian Ins. Co., 47 Misc 3d 147[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2015]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.).
This court adheres to Pennsylvania's law permitting retroactive rescission of an automobile insurance policy in cases of material misrepresentation. However, Defendant's own submissions raise a triable issue of fact as to whether the insured resided in Pennsylvania at the time of the accident and whether she made material misrepresentation concerning her domicile and the garaging of her car in the procurement of the policy (see Sure Way NY, Inc. v. Travelers Insurance Company, 60 Misc 3d 139[A] [App Term, 2d Dept, 11th & 13th Jud Dists 2018]; see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 853; Sandiford v. Kahn, 84 AD3d 1209 [2d Dept. 2011]).
The recent Appellate Term conflict of laws case, Sure Way NY, Inc. v. Travelers Insurance Company, addressed a similar issue wherein the defendant auto-insurer retroactively rescinded the insurance policy claiming that the assignor resided in New York and not in Florida (Sure Way NY, Inc. v. Travelers Insurance Company, 60 Misc 3d 139[A]). The Court applied Florida law which permits retroactive rescission (id.). Nonetheless, the court found that the defendant auto-insurer, by its very own submissions, raised a triable issue of fact as to whether the assignor resided in New York or Florida at the time of the accident (id.). As a result, the court affirmed the lower court's decision and found that the defendant auto-insurer failed to meet [*4]its burden on its own motion for summary judgment (id.).
Similarly, the Second Department in Matter of Nationwide Ins. Co. v. Guareno, affirmed the lower court's application of Virginia law which permitted retroactive rescission of the subject auto insurance policy (Matter of Nationwide Ins. Co. v Guareno, 278 AD2d 419 [2000]). However, the court found that there were questions of fact as to whether the insured made material misrepresentations in the application for insurance and, therefore, whether the defendant auto-insurance company properly cancelled her policy (id.).
In support of its motion, Defendant asserts that the Peguero and Olaveria's EUO provide conclusive proof that its retroactive rescission of the insured's policy was proper based on certain material misrepresentations regarding domicile. This court disagrees. Rather, careful review of both EUO transcripts reveal that there are issues of fact as to whether Mr. Olaveria and Ms. Peguero resided in Pennsylvania at the time the policy was procured and/or at the time of the accident. Based upon their testimonies, the couple appear to be young people of limited means who supply groceries for the household in return for their dwelling. Both testify that they travel to the Bronx on weekends to visit Ms. Peguero's father and her young son who lives with her father. Mr. Olaveria is a mechanic who works on cars with his uncle when work is available at a rear yard in Reading, Pennsylvania. Ms. Peguero braids hair for a living and travels to where her clients live to render her services. She has clients in Pennsylvania and in New York. Although unconventional, Mr. Olaveria and Ms. Peguero manner of living and making ends meet does not demonstrate that they are not domiciled in Pennsylvania. It is certainly not definitive proof that they are domiciled in New York. Aside from these EUO transcripts, Defendant provides no other admissible evidence in support of its position that Ms. Peguero was not a resident of Pennsylvania at the time she procured the policy or at the time of the accident.
Defendant argues that an insurance company must only show that it provided notice to the insured in proper form and proper mailing in order to satisfy its burden on summary judgment. Defendant cites numerous Appellate Term cases in support of this proposition. However, in those cases there were no issues of fact as to whether there existed a material misrepresentation. Contrary to Defendant's assertions, the alleged existence of a material misrepresentation is not a foregone conclusion upon which summary judgment must be granted. Rather, it is an issue which must be determined by a trier of fact, not on summary judgment.
Based on the foregoing, Defendant failed to meet its burden of establishing entitlement to summary judgment as its own moving papers show that a material issue of fact exists (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853; see also Sandiford v. Kahn, 84 AD3d 1209; Sure Way NY, Inc. v. Travelers Insurance Company, 60 Misc 3d 139[A]). Accordingly, Defendant's motion for summary judgment is denied. Plaintiff's cross motion is granted solely to the extent that it made a prima facie showing of timely mailing the requisite statutory billing forms and that payment of no-fault benefits are overdue.
This constitutes the decision and order of this court.
April 9, 2019
Brooklyn, NY
ENTER
Decided on January 31, 2020
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1603 K C
Active Care Medical Supply Corp., as Assignee of Pierre, Miraclea, Appellant,
against
Titan Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Mccormack & Mattei, P.C. (Jamila Shukry and Erin O'Neill of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 7, 2018. The order granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue, and implicitly denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remaining branches of defendant's motion.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground, among others, that plaintiff lacked standing to bring the action because it did not possess a license to distribute the products at issue. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered February 7, 2018, the Civil Court granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked standing to bring the action, and implicitly denied plaintiff's cross motion. The court stated that defendant's licensing defense is not precludable and noted that, in two separate orders in a declaratory judgment action, the Supreme Court, Nassau County, had found that plaintiff herein lacked a license to distribute its products. The Civil Court did not reach the remaining branches of defendant's motion, which sought summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath and that the limits of the insurance policy had been exhausted.
"The proponent of a summary judgment motion must make a prima facie showing of [*2]entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In an affidavit in support of the branch of defendant's motion seeking summary judgment on the ground that plaintiff lacked the required license to distribute the supplies at issue, defendant's medical investigator admitted that plaintiff had obtained a license with the New York City Department of Consumer Affairs on October 12, 2011, and the affidavit of defendant's claims specialist demonstrated that the supplies had been provided after that date. Thus, defendant's evidence was insufficient to demonstrate the absence of any material issues of fact (see id.) regarding plaintiff's licensing. Furthermore, to the extent that the Civil Court considered prior determinations by the Supreme Court, Nassau County, in the declaratory judgment action, as the Supreme Court's orders pertained to supplies that had been distributed before October 12, 2011, the Civil Court's reliance on the orders of the Supreme Court was misplaced, and the branch of defendant's motion based on plaintiff's alleged lack of a license should have been denied.
Contrary to plaintiff's assertion, plaintiff was not entitled to summary judgment, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff lacked a license to distribute the medical supplies at issue is denied, and the matter is remitted to the Civil Court to determine the remaining branches of defendant's motion.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 31, 2020
Decided on July 17, 2015
against
USAA General Indemnity Company, Defendant.
The Rybak Firm, PLLC
Counsel for plaintiff
1506 Kings Highway
2nd Floor
Brooklyn, NY 11229
NcDonnell & Adels, PC
Counsel for defendant
401 Franklin Avenue
Garden City, NY 11530
Reginald A. Boddie, J.
Introduction
Plaintiff commenced the instant case to recover first party no-fault benefits in the amount of $5,291.31 for medical services provided to its assignor as the result of an automobile accident that occurred on February 4, 2009. The parties stipulated that the bills and denials were timely and properly mailed, and that the sole issue for determination by the court is defendant's defense of material misrepresentation and fraudulent procurement of the underlying insurance policy.
Facts
At trial, plaintiff did not present any witnesses. Defendant presented April Lally, a litigation manager for USAA General Indemnity Company (USAA). Ms. Lally has been employed by USAA for 26 years and was trained to determine eligibility for military and other coverage issues. Her principal job duties include reviewing coverage and eligibility for litigation. She detailed the categories of eligibility, which included active service members, children of service members, national guard members, officer candidates, certain former service members, and their families. She also described the application process during which an application is completed on the USAA website and the company follows up with the mailing of an "integrity letter" to the applicant. The integrity letter seeks to confirm the information provided for purposes of eligibility prior to issuance of a policy.
Ms. Lally testified that the assignor made an online application for insurance in which he [*2]falsely represented that he was an active member of the Navy. She alleged and presented documents to establish that a subsequent search of the Department of Defense website affirmed that the assignor was not an active seaman. Defendant contends that because this representation constitutes a material misrepresentation and fraud, the assignor was properly denied first-party coverage, although coverage remained available to third parties and the policy was therefore not terminated or deemed void.
Defendant argued this action is consistent with the assignor's insurance policy, that was admitted into evidence and states the following:
Fraud
We do not provide coverage for any covered person, as defined in the policy, who hasknowingly concealed or misrepresented any material fact or circumstance relating to this insurance:
1. At the time the application was made; or
2. At any time during the policy period; or
3. In connection with the presentation or settlement of a claim
On cross-examination, however, Ms. Lally conceded that she is not involved in the underwriting of policies and has no knowledge of the policies and procedures governing such underwriting.
Analysis and Conclusion
Insurance Law § 3105 governs material misrepresentation and fraudulent procurement of insurance contracts. Section 3105 (a) provides: "A representation is a statement as to past or present fact, made to the insurer by, or by the authority of, the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof. A misrepresentation is a false representation, and the facts misrepresented are those facts which make the representation false."
Here, Ms. Lally credibly testified and produced documents evidencing that the assignor misrepresented that he was an active member of the Navy on his application for automobile insurance. Although plaintiff sought to challenge defendant's sources of information, he failed to offer any evidence whatsoever to rebut this contention. Consequently, based on the evidence presented, the court finds the allegation of misrepresentation to be true. However, the inquiry does not end there.
It is well settled that to establish the right to rescind an insurance policy an insurer must show that the insured made a material misrepresentation when he or she secured the policy (Interboro Ins. Co. v Fatmir, 89 AD3d 993 [2d Dept 2011], citing see Novick v Middlesex Mut. Assur. Co., 84 AD3d 1330 [2011]; Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855, 856 [2009]; Schirmer v Penkert, 41 AD3d 688, 690 [2007]; Zilkha v Mutual Life Ins. Co. of NY, 287 AD2d 713, 714 [2001]). A misrepresentation is considered to be material only if the insurer would not have issued the policy had it known the facts misrepresented (Interboro, 89 AD2d at 994, citing see Insurance Law § 3105 [b] [1]; Novick, 84 AD3d at 1330; Varshavskaya, 68 AD3d [*3]at 856). "To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show it would not have issued the same policy if the correct information had been disclosed in the application" (Interboro, 89 AD3d at 994, quoting Schirmer v Penkert, 41 AD3d at 690-691).
Here, defendant established that plaintiff's assignor provided false information on the application. However, defendant failed to elicit at trial any testimony or produce any other evidence, including documentation concerning its underwriting policies, to establish that the policy would not have been issued if the correct information was known.
The reason for such failure to elicit this testimony seems apparent since Ms. Lally testified that she was neither qualified nor possessed sufficient knowledge to testify about underwriting issues. Nonetheless, absent such proof, defendant cannot meet its burden, as a matter of law, in establishing that the plaintiff's assignor's misrepresentations were material. Therefore, its defense of misrepresentation and fraudulent procurement cannot be sustained.
For the reasons stated, plaintiff is granted a judgment for the amount sought along with costs, statutory interest and attorney's fees.
Dated: July 17, 2015
Supreme Court of New York, Suffolk County | 06 May 2021 | 2021 N.Y. Misc. LEXIS 12621 | New York
Judge(s): Hon. Andrew A. Crecca
Representation: Plaintiff Travelers Property Casualty Co. of America — Law Offices of Tina Newsome-Lee; Defendants (including Rovner, Bright Star Rehab, Citimedical I PLLC, Coney Island Psychology PC, Metro Pain Specialists PC, Optimum Health Acupuncture PC, Westchester Radiology & Imaging, and others) — The Rybak Firm (Damin J. Toell and Richard Rozhik of counsel, among others for certain defendant groups)
Result: Rybak Firm WON.
Court denied plaintiff insurer’s motion in its entirety, including requests to:
stay arbitration,
stay litigation,
and obtain a preliminary injunction.
Decided on August 2, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-1616 K C
SS Medical Care, P.C., as Assignee of Ash Liza, Appellant,
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 20, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered September 12, 2011 pursuant to an August 16, 2011 order of that court (Robin S. Garson, J.) granting plaintiff's unopposed motion for summary judgment; 2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.
ORDERED that the order entered January 20, 2017 is reversed, with $30 costs, and defendant's motion to stay the execution of the judgment entered September 12, 2011, vacate the judgment and, in effect, the August 16, 2011 order, and dismiss the complaint is denied.
Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on June 27, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On September 12, 2011, a judgment was entered pursuant to the order. After the order had been entered, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau [*2]County, against SS Medical and its assignor herein, among other parties, pertaining to the June 27, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century's motion, pursuant to CPLR 2201 and 6301, to "temporarily stay[]" pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the policy in question, and that the provider had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.
Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered September 12, 2011 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose SS Medical's motion in the Civil Court for summary judgment, that it had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Richard J. Montelione, J.) entered January 20, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.
In support of the branch of its motion in the Civil Court seeking to vacate the judgment, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff's motion for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant's attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff's motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff's motion.
We note that while the Supreme Court's December 19, 2011 order "temporarily stayed" pending lawsuits, the action in the Civil Court was no longer pending, as a judgment had been entered in the Civil Court on September 12, 2011 awarding SS Medical the principal sum of $2,068.50.
Accordingly, the order entered January 20, 2017 is reversed and defendant's motion to stay the execution of the judgment entered September 12, 2011, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019
Decided on August 2, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-1613 K C
SS Medical Care, P.C., as Assignee of Campbelll Asher, Appellant,
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 16, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered February 2, 2012 pursuant to an August 16, 2011 order of that court granting plaintiff's unopposed motion for summary judgment; (2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.
ORDERED that the order entered February 16, 2017 is reversed, with $30 costs, and defendant's motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.
Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on November 23, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On August 30, 2011, plaintiff submitted to the clerk of the court a proposed judgment pursuant to the order, which judgment included statutory interest and attorney's fees, and sought its entry. After the order had been entered in the Civil Court, 21st Century commenced a declaratory judgment [*2]action in the Supreme Court, Nassau County, against SS Medical and its assignor herein, among other parties, pertaining to the November 23, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century's motion, pursuant to CPLR 2201 and 6301, to "temporarily stay[]" pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. On February 2, 2012, without any indication in the record that the Clerk of the Civil Court was aware of the declaratory judgment action or the order issued therein on December 19, 2011, the Civil Court entered a judgment, pursuant to the August 16, 2011 order, awarding SS Medical the principal sum of $1,182.20. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the insurance policy in question, and that the provider and its assignor had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.
Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered February 2, 2012 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose plaintiff's motion for summary judgment in the Civil Court, that 21st Century had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Robin S. Garson, J.) entered February 16, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.
In support of the branch of its motion in the Civil Court seeking to vacate the judgment and, in effect, the August 16, 2011 order, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff's motion for summary judgment (seeCPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant's attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff's motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff's motion.
We note that, by its order entered on August 16, 2011, the Civil Court rendered its determination to grant SS Medical's motion for summary judgment, thus, completing the court's judicial function (see Vogel v Edwards, 283 NY 118 [1940]). Thereafter, and prior to the issuance of the Supreme Court's temporary stay of pending and future lawsuits against 21st Century, plaintiff applied in the Civil Court for the entry of a judgment pursuant to the August 16, 2011 order. As the order had resolved the motion, the entry of the judgment in the Civil Court on February 2, 2012, pursuant the August 16, 2011 order, was simply a ministerial act of [*3]the clerk (see e.g. Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]). The record is devoid of any proceedings taken by either party in the Civil Court action in violation of the stay contained in the Supreme Court's December 19, 2011 order following its issuance.
Accordingly, the order entered February 16, 2017 is reversed and defendant's motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019
Supreme Court of New York, Nassau County | 10 Feb 2012 | 2012 N.Y. Misc. LEXIS 807 | New York
Judge(s): Hon. Joel K. Asarch
Representation: Plaintiff American Transit Insurance Co. — Law Office of Jason Tenenbaum, P.C.; Defendant SK Prime Medical Supply, Inc. — The Rybak Firm (PLLC); other defendant providers — various counsel including Gar Tsirelman, P.C., etc.
Result: Rybak Firm WON.
Court denied plaintiff insurer’s motion for declaratory judgment and summary judgment seeking to void no- fault coverage.
Decided on December 13, 2019
PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1346 K C
SS Medical Care, P.C., as Assignee of Suero Carmen, Appellant,
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 30, 2016. The order granted the branches of a motion by defendant seeking (1) to vacate a judgment of that court entered October 6, 2011 pursuant to an August 11, 2011 order of that court (Johnny Lee Baynes, J.) granting plaintiff's unopposed motion for summary judgment; (2) to, in effect, vacate the August 11, 2011 order; and (3) to dismiss the complaint.
ORDERED that the order entered November 30, 2016 is modified by providing that the branches of defendant's motion seeking to, in effect, vacate the August 11, 2011 order and to dismiss the complaint are denied; as so modified, the order is affirmed, without costs.
Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services it had provided as a result of a motor vehicle accident which had occurred on December 7, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 11, 2011, the Civil Court (Johnny Lee Baynes, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. The Civil Court, noting in its August 11, 2011 order that defendant had represented that it was filing a declaratory judgment action in the Supreme Court, stated that, "if [defendant] fails to receive a stay [from the Supreme Court] within 60 days of this order, the [plaintiff] is directed to enter judgment ex parte." A judgment was entered in the Civil Court on October 6, 2011, before the expiration of the 60-day period.
After the August 11, 2011 order had been entered, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau County, against SS Medical and its assignor herein, among other parties, pertaining to the December 7, 2009 accident, as well as other accidents that had occurred between June 2009 and March 2010, involving other named assignors. On December 19, 2011, the Supreme Court granted 21st Century's motion, pursuant to CPLR 2201 and 6301, to "temporarily stay[]" pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. In an order entered May 29, 2012, the Supreme Court directed that the stay would continue during the pendency of the Supreme Court action. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established that the collision at issue was intentional and, thus, not covered by the policy in question, and that the provider, i.e., plaintiff herein, had failed to raise a triable issue of fact.
Thereafter, 21st Century moved, in the Civil Court, to, among other things, vacate the judgment in favor of SS Medical entered October 6, 2011 pursuant to the August 11, 2011 order and, in effect, that order, and to dismiss the complaint on the basis of the May 6, 2015 order in the Supreme Court declaratory judgment action. In support of the motion, 21st Century asserted, as its excuse for failing to oppose SS Medical's motion in the Civil Court for summary judgment, that it had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Robin S. Garson, J.) entered November 30, 2016 which granted the above-stated branches of defendant's motion.
The judgment that was entered in favor of plaintiff in the Civil Court was in violation of the August 11, 2011 order, which provided that plaintiff could enter judgment after the expiration of 60 days from the Civil Court order if defendant had failed to obtain a stay from the Supreme Court. In is undisputed that plaintiff entered judgment before the expiration of the 60 days. Consequently, the judgment must be vacated.
However, to vacate so much of the August 11, 2011 order of the Civil Court as awarded plaintiff summary judgment on default, defendant was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff's motion for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The excuse proffered by defendant's attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff's motion (see SS Med. Care, P.C. v 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51268[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As defendant failed to demonstrate an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff's motion for summary judgment (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914 [2018]). In view of the foregoing, we reach no other arguments asserted by the parties.
Accordingly, the order entered November 30, 2016 is modified by providing that that the branches of defendant's motion seeking, in effect, to vacate the August 11, 2011 order and to dismiss the complaint are denied.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019
Decided on August 12, 2022
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-327 K C
Hands On Physical Therapy Care, as Assignee of Neale, Tracy, Appellant,
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated April 15, 2021. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the first through third causes of action 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, plaintiff appeals from an order of the Civil Court granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff's cross motion for summary judgment.
Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant's mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.
Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant's June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).
Accordingly, the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing the first through third causes of action are denied.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022
Decided on April 21, 2023
against
R.L., E.G., G.R., A.A. and M.A., Participant, Defendants,
and Z.K.K., Adverse Vehicle Defendant,
and CHAND MEDICAL, P.C., EQUINOX PHYSICAL THERAPY, P.C., MACINTOSH MEDICAL, P.C., BIG APPLE MEDICAL GROUP CORP., BRUNO PSYCHOLOGICAL SERVICES, P.C., SMS THERAPY SUPPLY, INC., PULMONARY AND SLEEP MEDICAL, P.C., TITAN DIAGNOSTIC IMAGING SERVICES, INC., 5-STAR CHIROPRACTIC SERVICES, P.C., BEDFORD MEDICAL SERVICES, P.C., A TO Z SUPPLY SERVICES, INC., ECLIPSE MEDICAL IMAGING, P.C., FAMILY HEALTH NP, P.C., MORNING STAR PHYSICAL THERAPY, P.C., HEALTHY BIG APPLE CHIRO, P.C., NEW TIMES ACUPUNCTURE, P.C., NEXRAY MEDICAL IMAGING, P.C., NEXRAY MEDICAL IMAGING, P.C. d/b/a SOUL RADIOLOGY, PROMETHEUS IMAGING, LLC, RIDGEWOOD DIAGNOSTIC LABORATORY, LLC, THODEN CHIROPRACTIC, P.C., ELENA STYBEL, D.O. and DIANNA BRUNO, PSY.D., Provider Defendants.
Plaintiff: represented by Mcdonnell, Adels & Klestzick, PLLC
Defendants, A to Z Supply Services, Inc. : represented by Kopelevich & Feldsherova, PC Ridgewood Diagnostic Laboratory, LLC, Elena Stybel, D.O. and Dianna Bruno, PSY.D: represented The Rybak Firm, PLLC
Conrad D. Singer, J.
The following papers were read on this motion:
Amended Order to Show Cause and Supporting Papers [Seq. 001] XDefendants RIDGEWOOD DIAGNOSTIC LABORATORY, LLC, ELENA STYBEL, D.O, and DIANNA BRUNO, PSY.D.'s Affirmation in Opposition to Motion [Seq. 001] X
Defendant A TO Z SUPPLY SERVICES, INC. Affirmation in Opposition to Motion [Seq. 001] X
Upon the foregoing e-filed papers, the motion filed by the plaintiff, STATE FARM FIRE AND CASUALTY COMPANY ["STATE FARM", or "plaintiff"], for an Order pursuant to CPLR §§ 2201, 6301, and 6313, granting the plaintiff an immediate stay on all pending lawsuits, arbitrations, and other proceedings arising from the underlying incident of March 18, 2021, assigned claim number 00-00X0-00X, commenced against the plaintiff by the defendants, their employees, agents and all persons acting on their behalf subject to the determination of this action; and enjoining the defendants named herein, their employees, agents and all persons acting on their behalf, from filing or commencing any additional lawsuits, arbitrations, and other proceedings arising from the underlying incident of March 18, 2021 assigned claim number 00-00X0-00X against the Plaintiff, subject to the determination of this action, which seeks to resolve all issues between these parties, is determined as hereinafter follows:
The plaintiff commenced this action for declaratory judgment by filing a Summons and Verified Complaint on July 1, 2022. This action concerns a motor vehicle collision which occurred on March 18, 2021 [the "March 18, 2021, incident"].
STATE FARM alleges that effective March 5, 2021, Participant Defendant M.A. ["A."] insured a 2006 Saturn bearing vehicle identification number (VIN) 0X0X0XX00XX00 through STATE FARM. Defendant A.'S vehicle was insured by STATE FARM under a policy of insurance bearing policy number 0000-000-00, and the subject policy provided Personal Injury Protection Benefits ["PIP"] of $50,000 per person, Optional Basic Economic Loss Coverage ["OBEL"] of $25,000 per person, and Supplementary Uninsured Motorists Coverage of $25,000 per person/$50,000 per accident. The STATE FARM policy was cancelled effective May 1, 2021, due to the non-payment of the STATE FARM policy premium.
STATE FARM alleges that Participant Defendants, R.L. ["L."], E.G. ["G."], G.R. ["R."], and A.A. ["A."] [collectively, and together with defendant A., "Participant Defendants"] were purportedly occupants of the 2006 Saturn insured by the plaintiff at the time of the underlying March 18, 2021, incident. Participant Defendants L., G., R. and A. have received and/or are continuing to receive medical treatment from the Provider Defendants named herein as a result of the underlying March 18, 2021, incident.
STATE FARM alleges that in conjunction with the March 18, 2021, incident, the Provider Defendants submitted numerous bills to the plaintiff for unnecessary, excessive and costly medical "treatment" of Participant Defendants L., G., R. and A.. STATE FARM further alleges that in addition to Participant Defendants G., R. and A., who were purportedly passengers in the 2006 Saturn insured by Provider Defendant A. at the time of the March 18, [*2]2022, incident, STATE FARM is also exposed to third-party liability and property damage lawsuits by Adverse Vehicle Defendant Z.K.K. ["R." or "Adverse Vehicle Defendant"]. Therefore, the plaintiff alleges that the full liability coverage limits of the STATE FARM insurance policy are exposed.
STATE FARM seeks a declaration that the March 18, 2021, incident was not a covered "accident", but was instead a non-covered event intended to look like an "accident", and is therefore not covered by the STATE FARM policy of insurance. STATE FARM further seeks a declaration that it is not obligated to provide any coverage for the March 18, 2021, incident to any of the defendants named in this action due to the material misrepresentations made by the Participant Defendants regarding events surrounding the March 18, 2021, incident.
STATE FARM also seeks an additional declaration that it is not legally obligated to provide any coverage for claims submitted to it by or on behalf of the Participant Defendants and the Provider Defendants, CHAND MEDICAL, P.C., EQUINOX PHYSICAL THERAPY, P.C., MACINTOSH MEDICAL, P.C., BIG APPLE MEDICAL GROUP CORP., BRUNO PSYCHOLOGICAL SERVICES, P.C., SMS THERAPY SUPPLY, INC., PULMONARY AND SLEEP MEDICAL, P.C., TITAN DIAGNOSTIC IMAGING SERVICES, INC., 5-STAR CHIROPRACTIC SERVICES, P.C., BEDFORD MEDICAL SERVICES, P.C., A TO Z SUPPLY SERVICES, INC., ECLIPSE MEDICAL IMAGING, P.C., FAMILY HEALTH NP, P.C., MORNING STAR PHYSICAL THERAPY, P.C., HEALTHY BIG APPLE CHIRO, P.C., NEW TIMES ACUPUNCTURE, P.C., NEXRAY MEDICAL IMAGING, P.C., NEXRAY MEDICAL IMAGING, P.C. d/b/a SOUL RADIOLOGY, PROMETHEUS IMAGING, LLC, RIDGEWOOD DIAGNOSTIC LABORATORY, LLC, THODEN CHIROPRACTIC, P.C., ELENA STYBEL, D.O. and DIANNA BRUNO, PSY.D., [collectively, "Provider Defendants"], who rendered treatment to the Participant Defendants in connection with the incident of March 18, 2021, because Participant Defendants L., A., and A. breached a condition precedent to coverage by failing to attend Examinations Under Oath ("EUOs") noticed in connection with the March 18, 2021, incident.
By its motion, STATE FARM seeks an Order pursuant to CPLR 2201, 6301, and 6313, immediately staying all pending lawsuits, arbitrations, and other proceedings arising from the March 18, 2021, incident commenced by the defendants against the plaintiff, subject to the determination of this action, and enjoining the defendants, et al., from filing or commencing any additional lawsuits, arbitrations, and other proceedings arising from the underlying March 18, 2021, incident against the plaintiff subject to the determination of this action. This Court granted a temporary stay of all pending lawsuits, arbitrations, and other proceedings arising from the March 18, 2021, incident, pending a hearing and determination of this action. That stay is still in effect.
Provider defendant A TO Z SUPPLY SERVICES, INC., opposes the plaintiff's motion and, separately, provider defendants RIDGEWOOD DIAGNOSTIC LABORATORY, LLC, ELENA STYBEL, D.O,, and DIANNA BRUNO, PSY.D. have also filed an affirmation in opposition to the plaintiff's motion.
As a threshold matter, while the plaintiff's motion seeks a stay pursuant to CPLR 2201 and a preliminary injunction pursuant to CPLR 6301, the opposing Provider Defendants have established that, because the plaintiff is not seeking a stay of the instant action, and CPLR 2201 only empowers the Court to grant a stay of the proceedings in an action pending in this Court, the plaintiff's motion must be treated as one for a preliminary injunction pursuant to CPLR 6301, [*3]rather than a stay pursuant to CPLR 2201. (See, e.g., 21st Century Advantage Ins. Co. v Cabral, 35 Misc 3d 1240(A) [Sup Ct Nassau County 2012], St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145(A) [Sup Ct Queens County 2007]).
The plaintiff seeks a preliminary injunction staying and enjoining the parties from litigating or commencing any proceedings arising from the March 18, 2021, incident. "To establish the right to a preliminary injunction, the plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff's favor." (Keneally, Lynch & Bak, LLP v Salvi, 190 AD3d 961 [2d Dept 2021] [citations omitted]; see also Gonzalez v 231 Maujer St., HDFC, 157 AD3d 869, 870 [2d Dept 2018]; Doe v. Axelrod, 73 NY2d 748, 750 [1988]). The decision to grant a preliminary injunction is committed to the sound discretion of the court. (Tatum v Newell Funding, LLC, 63 AD3d 911, 912 [2d Dept 2009] [citations omitted]).
"A party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts". (Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051, 1052 [2d Dept 2009] [citations omitted]). "The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties." (Matter of Wheaton/TMW Fourth Ave., LP, 65 AD3d at 1052).
The plaintiff seeks a declaration that the March 18, 2021, incident was not a covered "accident", but was instead a non-covered event intended to look like an "accident", i.e., a "staged accident". Where a motor vehicle collision is the result of an intentional or "staged" event, there is no insurance coverage. (See, Metro Med. Diagnostics, P.C. v Eagle Ins. Co., 293 AD2d 751, 751-52 [2d Dept 2002]). The plaintiff's motion consists of, inter alia, an affidavit from STATE FARM claim specialist T.M. with supporting exhibits appended thereto. Rather than provide "clear and convincing evidence" of the likelihood of the plaintiff's success on the merits, M.'s supporting affidavit largely consists of unsubstantiated and hearsay-based assertions. For example, she references uncertified police reports [Exhibit 1 to M. Affidavit], she cites to an "ISO ClaimSearch" database record that was obtained from an unidentified third-party concerning defendant L.'S alleged involvement in prior accidents ["Exhibit 4 to M. Affidavit], and her reference to an investigation into the insured's claimed address in Albany is largely based on hearsay.
The plaintiff has put forth some evidence which appears to indicate that questionable circumstances are involved in the subject collision. For example, she references discrepancies between the sworn EUO testimony given by Participant Defendants R. and G., who were both alleged passengers in the car that was operated by defendant L. However, in light of the other evidentiary deficiencies in the plaintiff's motion papers, the Court finds that the plaintiff failed to "establish a clear right to [a preliminary injunction] under the law and the undisputed facts". (See Matter of Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051, 1052 [2d Dept 2009] [citations omitted]).
The Court further finds that the opposing defendants' respective motion papers have raised certain issues as to whether the plaintiff complied with the no-fault insurance claim procedures and regulations concerning EUOs and claim denials and the plaintiff's motion papers do not substantively address their compliance with these regulations. "While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion [*4]should not be granted where there are issues that subvert the plaintiff's likelihood of success on the merits ... to such a degree that it cannot be said that the plaintiff established a clear right to relief". (Cooper v Bd. of White Sands Condominium, 89 AD3d 669, 669, 931 NYS2d 696, 697 [2d Dept 2011] [citations omitted]). The Court finds that the disputed factual issues in this case are sufficiently significant to "subvert the plaintiff's likelihood of success on the merits" with respect to its claims arising from the Participant Defendants/Assignors' alleged failure to appear for their EUOs. Accordingly, the Court finds that the plaintiff has failed to establish a likelihood of success on the merits.
The plaintiff's failure to demonstrate by "clear and convincing evidence" a likelihood of success on the merits warrants outright denial of the plaintiff's motion for a preliminary injunction. (Tatum v Newell Funding, LLC, 63 AD3d 911, 912 [2d Dept 2009] ["Here, the Supreme Court properly denied the plaintiffs' motion for a preliminary injunction because the plaintiffs failed to demonstrate, by clear and convincing evidence, a likelihood of success on the merits."]).
Furthermore, while the plaintiff asserts that the denial of a preliminary injunction would cause the plaintiff "irreparable injury" because it would have to proceed with "multiple, similar lawsuits and arbitrations and the risk of inconsistent judgments", the Court finds that under the facts of this particular case, the plaintiff has "failed to demonstrate that it would suffer any imminent and nonspeculative harm in the absence of the requested injunctive relief ... and failed to demonstrate that any injuries it would suffer would not be compensable by money damages". (Am. Commerce Ins. Co. v Francois, 125 AD3d 903 [2d Dept 2015] [internal citations omitted]). The Court further finds that the plaintiff has failed to establish that the balancing of equities favors granting the preliminary injunction, particularly in light of he issues raised by the opposing Provider Defendants. To the extent that the plaintiff is ultimately successful in establishing that the March 18, 2021, incident was "staged", the Provider Defendants were not involved with such fraudulent conduct and the opposing Provider Defendants have established that the granting of a preliminary injunction would harm them to the extent it would delay the resolution of their claims for the medical services they provided to the injured parties.
Based on the foregoing, and in this Court's discretion, the Court finds that the plaintiff has failed to establish entitlement to a preliminary injunction pursuant to CPLR 6301. Therefore, the plaintiff's motion for a preliminary injunction will be DENIED, and the temporary restraining order issued by this Court in the Amended Order to Show Cause entered October 19, 2022, shall be vacated.
Accordingly, it is hereby,ORDERED, that the plaintiff's motion for an Order pursuant to CPLR 2201, 6301, and 6313, staying all pending lawsuits, arbitrations, and proceedings arising from the underlying March 18, 2021, incident, and, inter alia, enjoining the defendants named herein, their employees, agents, and all persons acting on their behalf, from filing or commencing any additional lawsuits, arbitrations, and other proceedings arising from the underlying March 18, 2021, incident [Seq. 001], is DENIED in its entirety; and it is further,
ORDERED, that the temporary restraining order which was granted by this Court in the Order to Show Cause entered on October 19, 2022 [NYSCEF Doc. No.66], is hereby VACATED; and it is further,
ORDERED, that all other requests for relief not specifically addressed herein shall be deemed DENIED.
This constitutes the Decision and Order of the Court.
Dated: April 21, 2023
Mineola, New York
HON. CONRAD D. SINGER, J.S.C.
Supreme Court of New York, Appellate Term, Second Department | 22 Sep 2023 | 81 Misc. 3d 127(A) | New York
Judge: HON. WAVNY TOUSSAINT, P.J., HON. CHEREÉ A. BUGGS, J., HON. LISA S. OTTLEY, J. Representation:
Plaintiff JULES FRANÇOIS PARISIEN, M.D. — The Rybak Firm, PLLC
Defendant ESURANCE — Abrams, Cohen & Associates, P.C.
Result: Rybak Firm won because the order is modified by providing that defendant's cross- motion for summary judgment dismissing the complaint is denied.
Decided on November 16, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1674 K C
Ksenia Pavlova, D.O., as Assignee of Cosby Reavis, Appellant,
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wharburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 14, 2016. The order, insofar as appealed from, denied the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover for services billed under CPT code 20999 and granted the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 is denied; 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, plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover for services billed under CPT code 20999 and granted the branch of defendant's cross motion seeking summary judgment dismissing that portion of the complaint.
As plaintiff failed to demonstrate prima facie that its claim for the services at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 [*2]AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), plaintiff failed to establish its prima facie entitlement to judgment as a matter of law with respect to its claim for these services. Consequently, plaintiff's motion for summary judgment on the portion of the complaint that sought to recover for these services was properly denied.
It is undisputed that defendant denied plaintiff's claim for services billed under CPT code 20999 in its entirety. Because the workers' compensation fee schedule has assigned a "By Report" designation for that CPT code, a provider billing under that CPT code is required to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff properly argues that where, as here, a provider does not provide such documentation with its claim form, and the insurer will not pay the claim as submitted, 11 NYCRR 65-3.5 (b) requires the insurer to, within 15 business days of its receipt of the claim form, request "any additional verification required by the insurer to establish proof of claim" (see Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., 54 Misc 3d 135[A], 2017 NY Slip Op 50101[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Thus, defendant's denial of payment for the services billed under CPT code 20999 on the ground that plaintiff had failed to provide sufficient documentation, where defendant did not demonstrate that it had requested any such documentation, was not proper and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under that CPT code should have been denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 20999 is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018
Decided on August 7, 2020
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1353 K C
Milky Way Acupuncture, P.C., as Assignee of Paulino, Elvin Veras, Appellant,
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Peter C. Merani, P.C. (Adam Waknine and Samuel Kamara of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered March 2, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of defendant's motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant's failure to appear or answer the complaint, and to compel plaintiff to accept defendant's answer.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant's motion seeking to vacate the default judgment and to compel plaintiff to accept defendant's answer are denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant's motion seeking to vacate a judgment of that court entered October 19, 2016 upon defendant's failure to appear or answer the complaint, and to compel plaintiff to accept defendant's answer.
The process server's affidavits constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by serving general agents of defendant authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate NY, Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 [*2]AD3d 1006 [2014]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Santomauro v Allstate Ins. Co., 64 Misc 3d 149[A], 2019 NY Slip Op 51413[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., Inc., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]). For the reasons stated in Santomauro (64 Misc 3d 149[A], 2019 NY Slip Op 51413[U]), we find that the affidavit submitted by defendant's employee in support of defendant's motion, which is virtually identical to that submitted in Santomauro, was insufficient to establish an excusable default (see also Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant's motion seeking to vacate the default judgment and to compel plaintiff to accept defendant's answer are denied.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 7, 2020
Decided on April 26, 2019
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2017-1372 K C
Charles Deng Acupuncture, P.C., as Assignee of Greene, Beverly, Appellant, against Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McDonald & Safranek (Paul Cohen of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), dated March 21, 2017. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
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 its motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. On appeal, plaintiff contends that it established its entitlement to summary judgment as a matter of law and that defendant's cross motion should have been denied because, among other things, defendant failed to establish that the notice of the cancellation of the insurance policy had been mailed to the insured.
In support of its cross motion, defendant asserted that there was no coverage for the accident because the relevant Pennsylvania insurance policy had been cancelled prior to the [*2]accident. The supporting affidavit of defendant's underwriting analyst stated that the notice of cancellation had been issued and mailed to the assignor on July 9, 2009 "both VIA CERTIFIED MAIL and VIA U.S. MAIL" "in accordance with the business practices of this office," without setting forth any details of those practices. It is noted that defendant did submit proof as to defendant's mailing practices and procedures with respect to claims processing, but not as to the process involved where other correspondence, such as a notice of cancellation, is mailed. Consequently, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in accordance with Pennsylvania law in order to effectuate the cancellation (see 31 Pa. Code § 61.5; Island Life Chiropractic, P.C. v Country Wide Ins. Co., 53 Misc 3d 131[A], 2016 NY Slip OP 51378[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant is not entitled to summary judgment dismissing the complaint on this basis.
We further find that plaintiff's moving papers failed to establish that defendant did not deny plaintiff's claim within the requisite 30-day period (see Vivianne Eitenne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff failed to establish a prima facie case and, thus, its motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 26, 2019
Decided on September 22, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1807 Q C
Compas Medical, P.C., as Assignee of Robinson, Anthony, Appellant, against Citiwide Auto Leasing, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Palmieri, Castiglione & Nightingale, P.C. (Michael S. Nightingale, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 21, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground, among others, that the claims at issue had been untimely submitted (see 11 NYCRR § 65-1.1).
Contrary to plaintiff's argument, the proof it submitted in opposition to defendant's motion was insufficient to raise a triable issue of fact as to whether the claims at issue had been timely mailed, as the affidavit of plaintiff's principal does not state that the claims were sent to defendant.
In light of the foregoing, plaintiff's remaining arguments are academic.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Decided on November 13, 2020
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2120 K C
Sovera Medical Supply Corp., as Assignee of Jose Gonzalez, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Picciano & Scahill, P.C. (Matthew Sledzinski of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 26, 2018. The judgment, entered pursuant to an order of that court entered May 10, 2016 granting defendant's motion to dismiss the complaint pursuant to CPLR 3126, dismissed the complaint.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered May 10, 2016 as granted defendant's motion seeking to dismiss the complaint is vacated and defendant's motion is granted to the extent of compelling plaintiff to provide responses to defendant's demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of this decision and order.
In this action by a provider to recover assigned first-party no-fault benefits, on April 10, 2015, the parties entered into a stipulation in which plaintiff agreed to serve verified responses to defendant's demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days. In July 2015, defendant moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiff's failure to provide the agreed-upon discovery. By order entered May 10, 2016, the Civil Court granted defendant's motion. A judgment dismissing the complaint was entered on April 26, 2018.
Although a court may strike the "pleadings or parts thereof" (CPLR 3126 [3]) as a sanction against a party who "refuses to obey an order for disclosure or wilfully fails to disclose [*2]information which the court finds ought to have been disclosed [upon notice]" (CPLR 3126 [3]), "the drastic remedy of striking [a pleading] is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith" (Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 726-727 [2008] [internal quotation marks and citation omitted]; accord Laskin v Friedman, 90 AD3d 617, 617-618 [2011]; see Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2007]). Here, defendant could not show that plaintiff had failed to comply with a court order, as no such order had ever been entered, and defendant further did not make a clear showing that the alleged failure of plaintiff to comply with defendant's discovery demands and the parties' stipulation was willful, contumacious or in bad faith. As a result, the Civil Court improvidently exercised its discretion in granting defendant's motion to strike plaintiff's complaint (see Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 35 Misc 3d 147[A], 2012 NY Slip Op 51064[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the judgment is reversed, so much of the order entered May 10, 2016 as granted defendant's motion seeking to dismiss the complaint is vacated and defendant's motion is granted to the extent of compelling plaintiff to provide responses to defendant's demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of this decision and order.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020
Decided on November 6, 2020
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1615 K C
ABC Physical Therapy, P.C., as Assignee of Alexander, Tomas, Appellant, against GEICO Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered April 13, 2018. The order denied plaintiff's motion for leave to enter a judgment upon defendant's failure to appear or answer the complaint and granted defendant's cross motion to open its default and to compel plaintiff to accept defendant's late answer.
ORDERED that the order is reversed, with $30 costs, plaintiff's motion for leave to enter a default judgment is granted and defendant's cross motion to open its default in answering and to compel plaintiff to accept defendant's late answer is denied.
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 leave to enter a judgment upon defendant's failure to appear or answer the complaint and granted defendant's cross motion to open its default and to compel plaintiff to accept defendant's late answer.
A defendant seeking to open a default in answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).
While a claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005), the claim must be supported by a "detailed and credible" explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Upon a [*2]review of the record, we find that the Civil Court improvidently exercised its discretion in granting defendant's cross motion to open its default in answering and to compel plaintiff to accept defendant's late answer, as defendant failed to meet its burden of demonstrating a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc., 67 NY2d at 141).
"In order to be entitled to enter a default judgment upon a defendant's failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant's default in appearing or answering (see CPLR 3215 [f]; L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2018]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 970 [2016])" (Glanz v Parkway Kosher Caterers, 176 AD3d 686, 688 [2019]). Here, plaintiff satisfied these requirements.
Accordingly, the order is reversed, plaintiff's motion for leave to enter a default judgment is granted and defendant's cross motion to open its default in answering and to compel plaintiff to accept defendant's late answer is denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Judges: Pesce, P.J., Aliotta, Elliott, JJ.
Representation: Plaintiff-appellant T & S Med. Supply Corp. (The Rybak Firm, PLLC, Damin J. Toell and Karina Barska of counsel) v. Defendant-respondent Ocean Harbor Casualty Insurance Company (Gallo, Vitucci & Klar, Yolanda L. Ayala and Richard E. Weber, Jr. of counsel)
Result: Rybak Firm won because the defendant failed to establish proper rescission of the insurance policy, specifically failing to demonstrate proper mailing of the rescission notice and refund check in accordance with required office practices and Florida law, so summary judgment dismissing the complaint was reversed.
Decided on September 18, 2020
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-2041 K C
JPF Medical Services, P.C., as Assignee of Castillo, Rigoberto, Appellant, against Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 9, 2018. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant's claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Although defendant's claim specialist referred to an affidavit annexed as exhibit K, which presumably discussed the payment log, an affidavit was not attached to the papers received by the court. Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.
Plaintiff's motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. [*2]Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 18, 2020
Decided on May 14, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-319 K C
JFL Medical Care, P.C., as Assignee of Martin, Anesia, Appellant, against ELRAC, Inc., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Scahill Law Group, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 10, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff's cross motion for summary judgment.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling the IMEs were properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff's assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Metro Pain Specialist, P.C. v ELRAC, Inc., 69 Misc 3d 140[A], 2020 NY Slip Op 51341[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], [*2]2015 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021
Decided on May 14, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-521 K C
Total Chiropractic, P.C., as Assignee of Sanders, Leander, Appellant, against Integon National Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 28, 2019. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying its motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its cross motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) were properly addressed and mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff's assignor failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021
Decided on May 14, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-498 K C
Excel Products, Inc., as Assignee of Francois, Ambrose, Respondent, against Farmington Casualty Company, Appellant.
Law Offices of Tina Newsome-Lee (Erika E.E. Treco of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), dated December 10, 2018. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that plaintiff's cross motion for summary judgment is 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 appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff's cross motion for summary judgment.
Contrary to defendant's contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff's failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant's remaining contentions regarding its motion for summary judgment are improperly raised for the first time on appeal and we decline to consider [*2]them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Plaintiff's cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that plaintiff's cross motion for summary judgment is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021
Decided on October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-1842 Q C
Pierre Jean Jacques Renelique, as Assignee of Linda Thomas, Appellant, against American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 22, 2014. The order granted defendant's motion for leave to reargue its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered May 23, 2014, and, upon reargument, in effect, vacated the order dated May 23, 2014, and thereupon granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order entered July 22, 2014 is reversed, with $30 costs, defendant's motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant's motion for summary judgment dismissing the complaint is reinstated.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had paid plaintiff for the services at issue in accordance with the workers' compensation fee schedule. Defendant alleged that it had reduced the payment for CPT Code 20553 in accordance with the fee schedule, attaching the page of the fee schedule setting forth the appropriate relative value. However, it did not provide the conversion factor or provide an explanation for the reduction. By order entered May 23, 2014, the Civil Court denied defendant's motion. Defendant subsequently moved for leave to reargue its prior motion and, upon reargument, for summary judgment dismissing the complaint. By order entered July 22, 2014, the Civil Court granted reargument and, upon reargument, in effect, vacated the May 23, 2014 order and granted defendant's motion for summary judgment dismissing the complaint.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). Here, defendant did not allege that the Civil Court had overlooked or misapprehended any matters of fact or law in denying its motion for summary judgment. Rather, defendant's attorney alleged, for the first [*2]time, that the fee schedule reduction had been based upon a calculation, and attached, for the first time, the page of the fee schedule setting forth the appropriate conversion factor. As this is not a proper basis for seeking leave to reargue, and defendant did not seek leave to renew its prior motion or provide an explanation for its failure to present the relevant facts on its prior motion (see CPLR 2221 [e] [3]), defendant's motion for leave to reargue should have been denied.
Accordingly, the order entered July 22, 2014 is reversed, defendant's motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant's motion for summary judgment dismissing the complaint is reinstated.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017
Decided on June 14, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1356 K C
Active Care Medical Supply Corp., as Assignee of Gauthier, Brian, Appellant, against Farmington Casualty Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gregory W. Broido of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 14, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, the record demonstrates that defendant did not receive the verification requested with respect to the second and third causes of action and, thus, those causes of action were properly dismissed as premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Indeed, defendant annexed letters from plaintiff in which plaintiff acknowledged defendant's requests for wholesale invoices for the equipment furnished by [*2]plaintiff and plaintiff's letters further stated that plaintiff was not providing such invoices to defendant. In opposition, plaintiff failed to raise a triable issue of fact.
The branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action on the ground of lack of medical necessity did not assert, let alone establish, that those causes of action were premature. Thus, the Civil Court improperly dismissed those causes of action on that ground. Consequently, so much of the order as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action must be vacated and the matter remitted to the Civil Court for a new determination of those branches of defendant's motion.
Accordingly, the order is modified by vacating so much thereof as granted the branches of defendant's motion seeking summary judgment dismissing the first and fourth causes of action and the matter is remitted to the Civil Court for a new determination of those branches of defendant's motion in accordance with this decision and order.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2019
Decided on March 1, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2015-2807 K C
Island Life Chiropractic, P.C., as Assignee of Saintilma, Guy, Respondent, against State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 15, 2015. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant's motion finding, among other things, the existence of an issue of fact as to whether plaintiff had contacted defendant to reschedule the EUOs and, if so, whether defendant had responded to plaintiff.
The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmations submitted by defendant's attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
In opposition to defendant's motion for summary judgment, plaintiff's owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant's investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that [*2]plaintiff's owner's affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019
Decided on July 23, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
2019-1634 K C
Ksenia Pavlova, D.O., as Assignee of David Wright, Respondent, against Global Liberty Insurance, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 18, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,111.94.
ORDERED that, on the court's own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered April 18, 2019 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,111.94. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers' compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.
When reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 493 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).
In the present case, the record supports the finding of the Civil Court, based upon its assessment of the credibility of defendant's witness and the proof adduced at trial, that defendant failed to demonstrate that the amount plaintiff sought to recover exceeded the amount permitted by the workers' compensation fee schedule. Consequently, we find no basis to disturb the Civil Court's determination.
Accordingly, the judgment is affirmed.
ALIOTTA, P.J., and GOLIA, J., concur.
ELLIOT, J., taking no part.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 23, 2021
Decided on June 3, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1280 K C
Columbus Imaging Center, LLC, as Assignee of Kone, Mohamed, Appellant, against National Liability & Fire Insurance Company, Respondent.
The Rybak Firm, PLLC, (Damin J. Toell of counsel), for appellant. Law Offices of Moira Doherty, P.C. (Maureen Knodel of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 30, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations (IMEs) and denied plaintiff's cross motion for summary judgment.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling the IMEs were properly addressed and timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff's assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Neptune Med. Care, P.C. v Praetorian Ins. Co., 64 Misc 3d 132[A], 2019 NY Slip Op 51052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, defendant's motion seeking summary judgment on the ground that plaintiff's assignor had failed to appear for IMEs should have been denied. We reach no other issue with respect to defendant's motion for summary judgment.
However, contrary to plaintiff's contention, it failed to demonstrate its prima facie [*2]entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022
Decided on June 1, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2585 Q C
GL Acupuncture, P.C., as Assignee of Baez, Vicente, Appellant, against Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered September 21, 2015. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment on the second through fifth causes of action and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the second through fifth causes of action 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, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment on the second through fifth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers' compensation fee schedule.
Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from [*2]asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the second through fifth causes of action.
However, contrary to plaintiff's contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, the branches of plaintiff's motion seeking summary judgment on the second through fifth causes of action were properly denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the second through fifth causes of action are denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Decided on November 30, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-1602 K C
Solution Bridge, Inc., as Assignee of Castillo, Lilian, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 10, 2016. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim underlying the first cause of action and that it had timely and properly denied the claim underlying the second cause of action based upon plaintiff's failure to provide requested verification within 120 days of the initial verification request (see 11 NYCRR 65-3.5 [o]), and denied plaintiff's cross motion for summary judgment.
Plaintiff correctly argues, in effect, that the proof submitted in support of its cross motion was sufficient to give rise to a presumption that plaintiff had timely mailed the claim underlying the first cause of action (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, there is a triable issue of fact as to whether the claim underlying the first cause of action was timely submitted.
Contrary to plaintiff's further contentions, defendant's proof was sufficient to [*2]demonstrate, prima facie, that it had timely mailed initial and follow-up verification requests as to the claim underlying the second cause of action (see id.); that it had not received the requested verification; and that it had timely denied the claim on that ground (see id.). However, as plaintiff further argues, the affidavit submitted by plaintiff in support of its cross motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see id.). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification as to the second cause of action.
In view of the triable issues of fact, plaintiff's cross motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
Decided on June 3, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1478 K C
JPC Medical, P.C., as Assignee of Isaacs, Wesley, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel.), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered May 15, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant's claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Contrary to plaintiff's contention that its cross motion for summary judgment should have been granted, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue [*2]had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022
Decided on July 1, 2022
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-132 K C
Columbus Imaging Center, LLC, as Assignee of Daughterofessie, Quisha, Respondent, against Nationwide Ins., Appellant.
Law Office of Kevin J. Philbin (Kevon Lewis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), entered September 17, 2020. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that plaintiff's cross motion for summary judgment is 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 appeals from an order of the Civil Court denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment.
The affidavits defendant submitted in support of its motion for summary judgment demonstrated, prima facie, that independent medical examination (IME) scheduling letters had been timely and properly mailed (see 11 NYCRR 65-3.5 [a], [d]; Appendix 13; St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 71 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, contrary to defendant's contention, the affidavits from the doctors who were scheduled to perform the IMEs did not establish that [*2]they possessed personal knowledge of the nonappearance of plaintiff's assignor for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Consequently, defendant failed to establish its entitlement to judgment, as a matter of law, dismissing the complaint on the ground that plaintiff's assignor had failed to appear for IMEs.
Plaintiff's cross motion for summary judgment should have been denied as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that plaintiff's cross motion for summary judgment is denied.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022
Decided on July 30, 2021
PRESENT: : WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
2020-179 K C
Ahava Medical Diagnostic, P.C., as Assignee of Amiri, Behzad, Respondent, against Hertz Co., Appellant.
Rubin, Fiorella, Friedman & Mercante, LLP (Sarah V. Cohenson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), entered November 8, 2019. The order denied defendant's motion to vacate a judgment of that court entered November 1, 2018 upon defendant's failure to appear or answer the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that defendant failed to appear or answer the complaint. The Civil Court granted plaintiff's motion for a default judgment, and a default judgment was entered on November 1, 2018. Thereafter, defendant moved, insofar as is relevant to this appeal, to vacate the default judgment, and plaintiff opposed the motion. By order entered November 8, 2019, the Civil Court denied defendant's motion.
A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). While defendant argues on appeal that it demonstrated the existence of a potentially meritorious defense, we need not reach that issue because, as plaintiff argues, the papers submitted by defendant's claim representative in support of the motion did not provide a sufficiently detailed explanation of the inadvertent office failure that allegedly caused the default (see Auburn Realty, LLC v Surujdyal, 183 AD3d 682 [2020]; Herrera v MTA Bus Co., 100 AD3d 962 [2012]). Indeed, absent from defendant's papers was an affidavit by the person responsible for the office failure or any explanation as to why such affidavit was not provided (see Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, it is unnecessary to determine whether defendant [*2]demonstrated the existence of a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v Syed, 160 AD3d 914 [2018]; Scott v Ward,130 AD3d 903 [2015]; Vardaros v Zapas, 105 AD3d 1037 [2013]).
Accordingly, the order is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021
Decided on September 1, 2017
PRESENT: : THOMAS P. ALIOTTA, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2015-2625 K C
Bayshore Chiropractic, P.C., as Assignee of Isabella Cifone, Respondent, against Allstate Insurance Company, Appellant.
Peter C. Merani, P.C. (Eric Wharburg, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 16, 2015. The order denied defendant's motion to, among other things, vacate a default judgment entered March 12, 2014 pursuant to an order of the same court (Harriet L. Thompson, J.) dated February 13, 2014 granting plaintiff's unopposed motion for summary judgment.
ORDERED that the order entered July 16, 2015 is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. By order dated February 13, 2014, the Civil Court (Harriet L. Thompson, J.) granted plaintiff's motion without opposition. A default judgment awarding plaintiff the principal sum of $9,500 was entered on March 12, 2014. Defendant moved, by order to show cause dated October 20, 2014, to, among other things, vacate the default judgment. Defendant appeals from an order of the Civil Court (Katherine A. Levine, J.) entered July 16, 2015, which denied defendant's motion.
To warrant the opening of its default in opposing plaintiff's motion for summary judgment, defendant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a]; Simpson v Tommy Hilfiger [*2]U.S.A., Inc., 48 AD3d 389 [2008]). While a claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005), the claim must be supported by a "detailed and credible" explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In this case, defendant's claim of law office failure during the transfer of the case file from defendant's prior counsel was insufficient to constitute a reasonable excuse for the default, as the explanation offered by defense counsel indicated that the default was the result of attorney neglect (see Morales v Perfect Dental, P.C., 73 AD3d 877 [2010]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90). Consequently, the Civil Court did not improvidently exercise its discretion in denying defendant's motion. In the absence of a reasonable excuse for the default, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969 [2016]).
Accordingly, the order entered July 16, 2015 is affirmed.
ALIOTTA, J.P., PESCE and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 01, 2017
Decided on March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1172 K C
Charles Deng Acupuncture, P.C., as Assignee of Turay, Santige, Appellant, against 21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC, Damin J. Toell, Esq., for appellant. Law Office of Bryan M. Rothenberg, Sharon A. Brennan, Esq., for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 22, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
In support of its motion, defendant contended that the insured had fraudulently procured the insurance policy in question. Although defendant timely raised this defense in its denial of claim form, it presented no evidence that plaintiff's assignor, a passenger in the insured's vehicle at the time of the accident, had "participated in or was aware of" the insured's alleged fraudulent scheme to obtain the insurance policy (Alexander Alperovich, M.D., P.C. v Auto One Ins. Co., 24 Misc 3d 141[A], 2009 NY Slip Op 51721[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see also Matter of Metlife Auto & Home v Agudelo, 8 AD3d 571, 572 [2004]). [*2]Consequently, defendant is not entitled to summary judgment on that ground.
To the extent that defendant also sought summary judgment on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), we find that defendant's proffered evidence was insufficient to establish, as a matter of law, that the assignor's alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Tam Med. Supply Corp. v 21st Century Ins. Co., 51 Misc 3d 131[A], 2016 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
Solomon, J.P., Pesce and Elliot, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 31, 2017
Decided on February 19, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-1860 K C
Quality Health Supply Corp., as Assignee of Michel, Linda, Appellant, against Hertz Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 6, 2018. The order granted defendant's motion to amend the pleadings and to dismiss the complaint on the ground of res judicata, and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied; as so modified, the order is affirmed, without costs.
Plaintiff Quality Health Supply Corp. (Quality Health) commenced this action against "Hertz Co." to recover assigned first-party no-fault benefits for services provided to plaintiff's assignor, who had allegedly been injured in an accident on July 7, 2015. Prior to the commencement of this action, "Hertz Vehicles, LLC" had brought a declaratory judgment action in the Supreme Court, New York County, against Quality Health and its assignor herein, among other parties, pertaining to the July 7, 2015 accident, and had moved in the Supreme Court for a default judgment against Quality Health and its assignor. In an order entered August 4, 2016, the Supreme Court, upon granting an unopposed motion by Hertz Vehicles, LLC, declared that Hertz Vehicles, LLC was not obligated to pay claims for reimbursement submitted by Quality Health and its assignor. Hertz Co. thereafter moved in the Civil Court for an order, pursuant to CPLR 3025 (c), "amending the named defendant in this action to the proper party, 'Hertz Vehicles, LLC.' " Relying upon the Supreme Court's order, Hertz Co. sought the further relief in the Civil Court of dismissing the complaint on the ground that the present action is barred by the doctrine of res judicata. Plaintiff cross-moved for summary judgment and opposed defendant's motion. Plaintiff appeals from an order of the Civil Court entered February 6, 2018 granting defendant's motion and denying plaintiff's cross motion.
For the reasons stated in Quality Health Supply Corp. v Hertz Co. (68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order is modified by providing that Hertz Co.'s motion to amend the pleadings and to dismiss the complaint on the ground of res judicata is denied.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 19, 2021
Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2083 Q C
Maria S. Masigla, P.T., as Assignee of Edouard, Nadia, Appellant, against Ameriprise Auto & Home, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 8, 2014. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment upon the first, third and fourth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action are denied; 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, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff's motion seeking summary judgment upon the first, third and fourth causes of action, and granted the branches of defendant's cross motion seeking summary judgment dismissing those causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUO).
For the reasons stated in Renelique v Utica Mut. Ins. Co. (53 Misc 3d 141[A], 2016 NY Slip Op 51530[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the branches of [*2]defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action should not have been granted based on plaintiff's failure to appear for EUOs. However, the branches of plaintiff's motion seeking summary judgment upon those causes of action were properly denied, as plaintiff failed to establish that the additional ground upon which the claims at issue had been denied lacks merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant's cross motion seeking summary judgment dismissing the first, third and fourth causes of action are denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 15, 2017
Decided on September 8, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1534 Q C
Compas Medical, P.C., as Assignee of Akhtar, Waseem, Appellant, against American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 3, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's sole contention on appeal with the respect to the first cause of action, the proof submitted by defendant in support of its motion was sufficient to demonstrate that defendant had not received the claim form underlying that cause of action. Consequently, there is no basis to disturb so much of the order as granted the branch of defendant's motion seeking summary judgment dismissing the first cause of action (see Artzel, Inc. v Mercury Cas. [*2]Co., 53 Misc 3d 135[A], 2016 NY Slip Op 51437[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
However, plaintiff correctly argues that defendant's motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff for the claims underlying the second cause of action exceeded the amounts permitted by the workers' compensation fee schedule.
Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the second cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Decided on June 8, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2067 K C
Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Jajoute, Marie, Appellant, against GEICO Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 16, 2015. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment on the first through fourth causes of action and granted defendant's cross motion for partial summary judgment dismissing the first through fourth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for partial summary judgment dismissing the first four causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. Plaintiff appeals from so much of an order of the Civil Court as denied the branches of its motion seeking summary judgment on the first four causes of action and granted defendant's cross motion.
For the reasons stated in Gentlecare Ambulatory Anesthesia Servs. etc., as Assignee of Saint-Louis, Lydia v GEICO Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. [*2]2015-1996 K C], decided herewith), the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 08, 2018
Decided on April 29, 2022
PRESENT: : DONNA-MARIE E. GOLIA, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-87 K C
PFJ Medical Care, P.C., as Assignee of Zuniga, Karla, Appellant, against Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2019. The order, insofar as appealed from, granted the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action and denied plaintiff's cross motion for summary judgment.
ORDERED that so much of the appeal as is from the denial of plaintiff's cross motion is dismissed as no appeal lies from an order entered upon the consent of the appealing party (see CPLR 5511); and it is further,
ORDERED that the order, insofar as appealed from and reviewed, is reversed, with $30 costs, and the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that the action was premature due to plaintiff's failure to provide requested verification. Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 2, 2019, insofar as appealed from by plaintiff, the Civil Court granted the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action, and, on consent, accepted plaintiff's untimely cross motion as opposition only, thereby implicitly denying it.
Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and that it had timely denied plaintiff's claims on that ground (see 11 NYCRR 65-3.5 [o]). However, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to raise an issue of fact as to whether the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from and reviewed, is reversed and the branches of defendant's motion seeking summary judgment dismissing the first through fourth causes of action are denied.
GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 29, 2022
Decided on May 25, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-263 Q C
Mind & Body Acupuncture, P.C., as Assignee of Ocello Josephine, Appellant, against Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric. M. Wahrburg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered December 16, 2015. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
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 defendant's cross motion for summary judgment dismissing the complaint on the ground that the amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers' compensation fee schedule.
Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 [*2]AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff's contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff's motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018
Decided on June 17, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-894 K C
New York Wellness PT, P.C., as Assignee of Sang, Kashana, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Daniel Passer and Kyeko Stewart of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated September 10, 2020. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff's cross motion for summary judgment.
Although defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff's assignor for the EUOs. In addition, defendant's motion failed to establish, as a matter of law, that defendant had timely denied plaintiff's claim after plaintiff's assignor had allegedly failed to appear at two duly scheduled EUOs. Therefore, defendant failed to establish its entitlement to summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Finally, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its cross motion failed to establish that defendant failed to deny the claim within the 30-day period (see Viviane Etienne Med. Care, P.C. v [*2]Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued denials that were conclusory, vague or without merit as a matter of law (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022
Decided on January 31, 2020
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1134 K C
Charles Deng Acupuncture, P.C., as Assignee of Davis-Vaughan, Felecia, Respondent, against Hertz Co., Appellant.
Robyn M. Brilliant, P.C. (Robyn M. Brilliant and Barry Montrose of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered January 24, 2018. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and, upon denying plaintiff's cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff's favor.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage due to the fact that the assignor, a resident of New York, was not an eligible injured person since she had been a passenger in a rental car which had been involved in a motor vehicle accident in New Jersey and neither the assignor, nor any member of her household, owned a vehicle in New York. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court dated January 24, 2018 as denied defendant's motion and, upon denying plaintiff's cross motion, made, in effect, CPLR 3212 (g) findings in plaintiff's favor.
The papers that defendant submitted in support of its motion failed to establish, as a matter of law, that the assignor was not entitled to receive benefits pursuant to Insurance Law § 5103 (a) (3) and, therefore, the Civil Court properly denied defendant's motion for summary judgment.
Moreover, defendant failed to articulate a sufficient basis to strike the Civil Court's findings in plaintiff's favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 31, 2020
Decided on November 29, 2019
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
2017-2004 K C
Jules Francois Parisien, M.D., as Assignee of Frandy Bolivar, Respondent, against Nationwide Ins., Appellant.
Harris J. Zakarin, P.C. (Harris J. Zakarin and Alan Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 16, 2017. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claim based upon plaintiff's failure to appear for three duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. Defendant argued in a reply affirmation that, by virtue of an order of the Civil Court (Richard J. Montelione, J.) dated January 6, 2017 in an action involving the same parties, plaintiff was collaterally estopped from disputing elements of defendant's case. Defendant appeals from so much of an order of the Civil Court (Harriet L. Thompson, J.) entered March 16, 2017 as denied defendant's motion, rejecting both the proof initially proffered by defendant and the claim of collateral estoppel.
Defendant's papers failed to establish, as a matter of law, that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defense. Consequently, the Civil Court properly found that defendant is [*2]not entitled to summary judgment dismissing the complaint. We incidentally note that the doctrine of collateral estoppel asserted by defendant would, in any event, not apply to the denial of the claim at issue here, as that claim was not at issue in the prior action.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2019
Decided on September 22, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1973 Q C
Adelaida M. Laga, PT, as Assignee of Noel, Jocelyn, Appellant, against American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 30, 2014. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the sixth cause of action is denied; as so modified, the order is affirmed, without costs.
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 defendant's cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.
Plaintiff correctly argues that defendant failed to establish that it had timely denied the claim underlying the sixth cause of action. Thus, the branch of defendant's cross motion seeking summary judgment dismissing that cause of action should have been denied. However, plaintiff is not entitled to summary judgment on this cause of action, as plaintiff failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of this claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], [*2]2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
The order is affirmed as to the remaining causes of action for the reason stated in Laga, as Assignee of Noel, Jocelyn v American Commerce Ins. Co. (— Misc 3d &mdash, 2017 NY Slip Op — [appeal No. 2014-2015 Q C], decided herewith).
Accordingly, the order is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the sixth cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Decided on July 30, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-118 K C
Allay Medical Services, P.C., as Assignee of Bright, Sayquan U, Respondent, against Nationwide Ins., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered December 24, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 24, 2018, the Civil Court denied the motion and cross motion but found, pursuant to CPLR 3212 (g), that the claims at issue were mailed by plaintiff and received by defendant. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.
Contrary to defendant's contention, defendant's motion failed to establish that defendant had timely denied plaintiff's claim after plaintiff failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant's motion for summary judgment dismissing the complaint was properly denied (see Bento Ortho, Inc. v Ameriprise Auto & Home, 64 Misc 3d 136[A], 2019 NY Slip Op 51160[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We reach no other issue.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 30, 2021
Decided on October 27, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-2637 K C
Adelaida M. Laga, PT, as Assignee of Joseph, Presnel, Respondent, against Hereford Insurance Co., Appellant.
Law Offices of Lawrence R. Miles ( Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 3, 2014. The order, insofar as appealed from and as limited by the brief, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered October 3, 2014, the Civil Court denied defendant's motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. As limited by its brief, defendant appeals from so much of the order as denied its motion.
While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint as premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017
Decided on November 30, 2018
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-742 K C
Acupuncture Now, P.C., as Assignee of Davis, Ebony, Appellant, against American Commerce Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 20, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff's argument, defendant's proof was sufficient to establish plaintiff's nonappearance at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
However, plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the first cause of action based on plaintiff's failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claim underlying that cause of action, and, therefore, the request was a nullity as to that claim (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], [*2]2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is modified by providing that the branch of defendant's motion seeking summary judgment dismissing the first cause of action is denied.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018
Decided on August 12, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1404 K C
RA Medical Services, P.C., as Assignee of Saint-Flavin, Farra M., Respondent, against Lancer Insurance Co., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant's motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff's cross motion for summary judgment.
Contrary to defendant's contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff's failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip [*2]Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Furthermore, as defendant raises no issue with respect to plaintiff's establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court's determination with respect thereto.
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022
Decided on August 23, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-595 K C
Right Aid Medical Supply Corp., as Assignee of Marie, Alexandre, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Richard T. Lau & Associates (Martin Dolitsky of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered March 21, 2016. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature. By order entered November 19, 2014, the Civil Court found that defendant had established that it had timely requested additional verification, and held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether plaintiff had provided the requested verification to defendant. At a nonjury trial held on February 26, 2016, the Civil Court noted that the only issue to be determined was whether plaintiff had provided the requested verification, stated that the burden was on plaintiff, and directed plaintiff to call its first witness. Plaintiff did not call any witnesses, arguing that the burden was on defendant to first establish that it had not received the requested verification. With no testimony having been presented, the Civil Court found for defendant on the ground that plaintiff had failed to demonstrate that it had provided the requested verification. Plaintiff appeals from a judgment entered March 21, 2016, dismissing the complaint.
For the reasons stated in Island Life Chiropractic, P.C. v Travelers Ins. Co. (___ Misc 3d ___, 2019 NY Slip Op 51273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether the requested verification remains outstanding.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 23, 2019
Decided on June 23, 2017
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2014-1875 Q C
Island Life Chiropractic, P.C., as Assignee of Joseph, Jude, Appellant, against Commerce Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 25, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.
Defendant's motion sought summary judgment on the ground that the amount of available coverage had been exhausted. Although the insurance policy had been issued in Massachusetts, defendant acknowledged that, pursuant to New York law, the insurance policy provided $50,000 in personal injury protection benefits. Defendant further contended that claims exceeding $50,000 had been received and that defendant had paid $50,000 in accordance with 11 NYCRR 65-3.15. However, defendant failed to establish, as a matter of law, an exhaustion of the [*2]coverage limits of the insurance policy at issue, as defendant did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
ELLIOT, J.P., PESCE and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 23, 2017
Decided on September 15, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1901 K C
Tam Medical Supply Corp., as Assignee of Green, Jabron, Respondent, against Hereford Insurance Co., Appellant.
Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered June 10, 2014, the Civil Court denied defendant's motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. Defendant appeals from so much of the order as denied its motion.
While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint as premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-436 Q C
Law Office of Aloy O. Ibuzor (Miriam Granov, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered November 18, 2014. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.
Contrary to defendant's contention, the Civil Court correctly denied defendant's motion for summary judgment, which was based upon defendant's allegation that plaintiff had failed to provide requested verification. While defendant made a prima facie showing that it had not received the requested verification, the affidavit plaintiff submitted in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017
Decided on September 22, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1984 Q C
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Shana A. Kleinman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification.
Contrary to plaintiff's contentions, defendant's proof was sufficient to demonstrate, prima facie, that it had properly mailed the initial and follow-up verification requests (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification, and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant's motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v [*2]Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017
Supreme Court of New York, Appellate Term, Second Department | 10 Dec 2021 | 73 Misc. 3d 142(A) | New York
Judges: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ. (Aliotta, P.J., Elliot and Golia, JJ., concur)
Representation:
Plaintiff/Respondent: The Rybak Firm, PLLC (Damin J. Toell, Esq.)
Defendants/Appellants: Freiberg, Peck & Kang, LLP (for American Independent Ins. Co.); Omni Indemnity Company (appellant)
Result: Rybak Firm won because the appeal was dismissed since Omni Indemnity was not aggrieved by the order and therefore had no standing to challenge it.
Decided on September 8, 2017
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1602 Q C
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 12, 2014. The order, insofar as appealed from, denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is denied; 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action.
Plaintiff correctly argues that defendant did not demonstrate, as a matter of law, that it had fully paid plaintiff for the claim underlying the first cause of action in accordance with the [*2]workers' compensation fee schedule. Consequently, the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action should have been denied. However, plaintiff failed to establish its prima facie entitlement to summary judgment, since the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing the first cause of action is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017
Decided on May 3, 2021
CPLR § 3117 (a)(2)
Plaintiff relies upon Mia Acupuncture, P.C .v. Mercury Ins., which held that "[b]y virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees." Mia Acupuncture, P.C. v. Mercury Ins. Co., 26 Misc 3d 39, 40 [App. Term, 2d Dept, 2009]. Plaintiff also argues that pursuant to, CPLR § 3117(a)(3)(iv), an EUO transcript may be entered into evidence in the event, "that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts." Plaintiff argues that defendant had failed to make any showing that "diligent efforts" have been made to procure the witness whose EUO transcript they seek to rely upon.
Defendant urges the Court to find that the EUO transcript falls into a hearsay exception as a party admission against interest. Defendant inaptly relies upon Zalot v Zieba, which is a case involving a summary judgment motion in which Second Department ruled that a deposition was in fact admissible. Zalot v Zieba, 81 AD3d 935, 917 [App. Term,.2d Dept, 2011]. However, Zalot, was based on a summary judgement motion, in which facts contained in the motion papers are deemed as true if not disputed by admissible evidence. In the mater sub judice, there is an objection by plaintiff to purported hearsay. Absent admissible evidence, defendant cannot support its contentions. Defendant also relies upon a First Department case, American States Ins. Co. v Huff, 119 AD3d 478 [1st Dept 2014], stating that the Court should apply the First Department's holding in Huff to the instant matter permitting the EUO transcript to be entered into evidence. However, the facts in Huff differ substantially from those before this Court. The Huff Court explicitly states that the defendant does not contest what happened during the EUO. Id. In this case, plaintiff has objected to the admissibility of the EUO and they were neither present nor notified of the EUO. Moreover, the EUO in Huff was used to demonstrate that the assignor left in the middle of the EUO, which is readily distinguishable from an effort to use the assignor's EUO testimony solely to prove the ultimate fact to be determined at trial. Huff is inapplicable.
The Court finds that defendant failed to establish that the assignor's EUO transcript should be treated as an exception to the hearsay rule as a statement against interest. In a similar matter, JSI Expert Serv. v. Liberty Mut. Ins. Co., 7 Misc 3d 1000 (A) [NY Civ. Ct. March 23, 2005], the defendant attempted to use an EUO transcript as evidence at trial claiming, that the [*4]EUO transcript was a hearsay exception because it was an admission against interest. In JSI Expert Serv., the Court found that the "New York doctrine," which states "In New York declarations of a vendor or assignor of a chattel or chose in action, whether made before or after the transfer, are inadmissible to affect the claim or title of a subsequent transferee for value" was applicable and therefore, the hearsay exception for admission against interest was inapplicable. Id. quoting Richardson on Evidence, Farrell 11th ed., §§ 8-239 and 8-241.
Similarly, in this matter plaintiff argues that the "New York Doctrine" is applicable and therefore, the EUO is not admissible. This is the same argument adopted by the Court in JSI Expert Serv. In 2006, this issue was again visited and it was held that, "the declarations of an assignor, whether made before or after the assignment, are inadmissible as against the assignee." CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006]. The Court finds the Court's decisions in JSI Expert Serv. and CPT Med. Serv, to be persuasive, and that the "New York doctrine" in applicable in this instance therefore, the EUO testimony is hearsay and not admissible.
Defendant has failed to show the assignor was an unavailable witness as required to admit a deposition testimony, per CPLR § 3117(a)(3)(iv). The decision in CPT Med. Serv., PC, directly addresses this issue when the Court held, "while it is well established that the statements made by an assignor (though a nonparty) in an EUO may be offered by a defendant insurer against a provider/assignee to prove a lack of coverage defense in opposition to a summary judgment motion despite being hearsay, EUO statements are nonetheless hearsay. As such, such statements are inadmissible at trial unless, for example, they are used for impeachment purposes upon cross-examination in the event such declarant/assignor testifies." CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006] [internal citations omitted]. It is important to note that CPT Med. Serv. does provide for the defendant to raise viable defenses so long as they cannot be established by, or proven without, inadmissible hearsay. Id. In this case, defendant was provided with the opportunity to provide the court with admissible evidence or witnesses at trial to establish that the assignor was unqualified for MVAIC benefits and instead relied on inadmissible hearsay evidence as the sole basis for their defense in this matter.
Thus, the Court finds that plaintiff has established its prima facie burden. Plaintiff has additionally established that assignor was uninsured and eligible for MVAIC coverage at the time of the accident, insofar as the parties stipulated that the assignor was uninsured at the time of the accident. Defendant has failed to prove by admissible evidence that plaintiff's assignor was an unqualified person, due to having been in possession of the uninsured vehicle for more than thirty days. Plaintiff is entitled to MVAIC benefits in all three of the matters consolidated for trial.
WHEREFORE it is hereby
ORDERED AND ADJUDGED that judgement be entered in favor of plaintiff in the sum of $4,186.71 for index 43846-15, $4,178.10 for index 26655-15, and $2,029.50 for index 26628-15 plus costs, disbursements, interest, and attorneys fees for all three index numbers referenced.
Dated: Brooklyn, New York
May 3, 2021
____________________________________
HON. JILL R. EPSTEIN, JCC
Decided on May 14, 2021
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-451 K C
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 5, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by denying the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment.
With respect to the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action, the affidavit of defendant's claims representative established that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms denying the claims set forth within those causes of action on the ground that they had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for plaintiff's failure to give timely notice was provided (see id.). As defendant established its prima facie entitlement to judgment as a matter of law upon those causes of action (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that those claim forms had been timely mailed to defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff timely submitted the claims which are the subject of the second through fifth causes of action.
With respect to the first cause of action, contrary to plaintiff's sole argument to defeat that branch of defendant's motion, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant's peer reviewer (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50149[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As to the sixth cause of action, plaintiff's contention that the affidavit it submitted was sufficient to raise a triable issue of fact lacks merit.
Accordingly, the order is modified by denying the branch of defendant's motion seeking summary judgment dismissing the second through fifth causes of action.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021
Decided on February 16, 2024
PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-225 K C
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Angelique Evangelista and Frank D'Esposito of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated January 23, 2023. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff's cross-motion for summary judgment.
To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, as MVAIC failed to set forth the dates on which it had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, MVAIC failed to make a prima facie [*2]showing of its entitlement to summary judgment dismissing the complaint.
Plaintiff's cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.
BUGGS, J.P., OTTLEY and HOM, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2024
Decided on November 18, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2021-446 K C
Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), dated July 1, 2021. The decision and order awarded plaintiff the sum of $547.24.
ORDERED that the appeal is dismissed.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from a "decision and order" of the Civil Court, which was dated July 1, 2021 and awarded plaintiff the sum of $547.24. We note that the "decision and order" lists several facts as having been agreed to by the parties at a pretrial conference, but the record does not include a copy of a stipulation or a transcript of that conference. Furthermore, while trial memoranda were included in the printed record, there is nothing else in the record to indicate that a trial was held, suggesting that this case may have been decided solely on stipulated facts which were not provided to this court. Finally, no judgment has been entered.
To the extent that the July 1, 2021 "decision and order" constitutes an "order," the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [*2][2]; CPLR 2211; Accelerated DME Recovery, Inc. v Travelers Ins., 73 Misc 3d 131[A], 2021 NY Slip Op 50955[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Mautner-Glick Corp. v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the July 1, 2021 "decision and order" constitutes a "decision," no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]; Accelerated DME Recovery, Inc. v Travelers Ins., 2021 NY Slip Op 50955[U]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc 3d 138[A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the appeal is dismissed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 18, 2022
Decided on July 22, 2022
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-491 K C
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 13, 2019. The order granted defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
As plaintiff argues, the affidavit submitted by plaintiff in opposition to defendant's motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d [*2]152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff's remaining contention lacks merit.
Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 22, 2022