June 16, 2015

Metro Health Prods., Inc. v Nationwide Ins. (2015 NY Slip Op 25203)

https://www.beynensonlaw.com/case-law/metro-health-prods-inc-v-nationwide-ins-2015-ny-slip-op-25203/

Court: Appellate Term, Second Department
Decided: June 16, 2015
Citation: 2015 NY Slip Op 25203 · 48 Misc 3d 85
Posture: Summary judgment
Outcome: Split result
Later treatment: Distinguished in 1 and followed in 3 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Effect of insurer's declaratory judgment (see the maps)

Cite as

Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A declaratory judgment order granting a default motion without declaring the parties' rights does not preclude a no-fault action. The insurer relied on a Supreme Court order granting its unopposed CPLR 3215 motion and directing settlement of judgment on notice. It did not demonstrate that judgment had been settled, so the order was not a conclusive final determination. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion, while affirming denial of the provider's motion because its affidavit did not establish untimely denials or timely denials lacking legal merit. The declaratory action apparently covered only one of four claims; the court could not reach the provider's abandonment argument under 22 NYCRR 202.48 (a) and (b).

Reported in New York Official Reports at Metro Health Prods., Inc. v Nationwide Ins. (2015 NY Slip Op 25203)

Metro Health Prods., Inc. v Nationwide Ins.

2015 NY Slip Op 25203 [48 Misc 3d 85]

Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, September 30, 2015

[*1]

Metro Health Products, Inc., as Assignee of Malcolm George, Appellant,
v
Nationwide Ins., Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 16, 2015

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

{**48 Misc 3d at 86} OPINION OF THE COURT

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.

Plaintiff Metro Health Products, Inc. commenced this action to recover assigned first-party no-fault benefits for medical “services” (actually supplies) provided to its assignor as a result of injuries sustained in an automobile accident. Thereafter, defendant insurer commenced a declaratory judgment action in Supreme Court, Nassau County, against Metro Health Products, Inc. seeking a declaration that Nationwide Insurance was under no obligation to pay any of the outstanding claims mentioned therein. In an order dated December 5, 2012, the Supreme Court stated the following:

“[Nationwide]’s unopposed motion for a default judgment on this declaratory judgment action pursuant to CPLR § 3215 is granted, there being no opposition.

“Settle judgment on notice.”

Plaintiff subsequently moved, in the instant no-fault action, for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the instant action was barred by virtue of the Supreme Court’s order. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “in light of [the] order entered [in] Supreme Court.”

Since the Supreme Court’s December 5, 2012 order in the declaratory judgment action did not make a declaration determining the rights of the parties involved (see Hirsch v Lindor Realty Corp., 63 NY2d 878, 881 [1984] [requiring the court in a declaratory judgment action to make a declaration determining the rights of the parties involved in the dispute]; Lanza v Wagner, 11 NY2d 317, 334 [1962]; Suburban Bindery Equip. Corp. v Boston Old Colony Ins. Co., 150 AD2d 767{**48 Misc 3d at 87}[1989]), but rather directed the insurer to settle the judgment on notice (which [*2]defendant did not demonstrate that it had done), the order cannot be considered a conclusive final determination. Therefore, the Supreme Court order has no preclusive effect on the instant no-fault action (cf. Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been denied. We note that, in any event, the declaratory judgment action apparently only included one of the four claims at issue in the instant no-fault action. We cannot pass on the issue, raised by plaintiff on appeal, of whether the motion made before the Supreme Court in the declaratory judgment action, or for that matter the action itself, is deemed abandoned pursuant to 22 NYCRR 202.48 (a), (b) (see Skeete v Bell, 292 AD2d 371 [2002]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted in support of its motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denial of claims that were conclusory, vague or without merit as a matter of law (see EMC Health Prods., Inc. v Travelers Ins. Co., 47 Misc 3d 133[A], 2015 NY Slip Op 50475[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, 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.

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

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's affidavit failed to show the claims were not timely denied or that timely denials were conclusory, vague or without merit, so its summary judgment motion was properly denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Effect of insurer's declaratory judgment

Open the full map

Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: No preclusion because the DJ does not conclusively decide these claims or cannot operate on them

Held a Supreme Court order granting the insurer's unopposed default motion and directing settlement of a judgment made no declaration of rights, so it was not a final determination and had no preclusive effect.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 164 decisions on this question in the Second Department courts and the Court of Appeals, 27 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co. (2015 NY Slip Op 50222(U)) Contrasted (cf., but see)A default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata.
EBM Med. Health Care, P.C. v Republic W. Ins. (2012 NY Slip Op 22300) Contrasted (cf., but see)An unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action.
EMC Health Prods., Inc. v Travelers Ins. Co. (2015 NY Slip Op 50475(U))Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.

Cited by

A label shows how the later decision treated this one.

Kerisli Chiropractic, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 28325) DistinguishedA default declaratory order specifying the parties' rights has res judicata effect when it remains unvacated.
Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co. (2015 NY Slip Op 51886(U)) FollowedAn order authorizing entry of a declaratory judgment has no preclusive effect if it does not declare the parties' rights.
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50803(U)) FollowedThe provider's affidavit raised a presumption that the requested verification had been mailed to and received by the insurer.
Total Chiropratic P.C. v Mercury Cas. Ins. Co. (2021 NY Slip Op 50142(U)) FollowedThe provider's claims were barred by an unvacated default declaratory judgment determining coverage against both provider and assignor.
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111)An EUO request tolls the time to pay or deny a claim, not the deadline to request new verification.
Jamaica Wellness Med., P.C. v Mercury Cas. Co. (2018 NY Slip Op 51128(U))A default judgment against an assignor does not preclude a provider's action when the order does not determine the provider's rights.
Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.
Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))The provider's action was untimely because its claim accrued 30 days after the insurer received the bill, a showing the provider did not rebut.

Similar decisions

Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51451(U))An unanswered notice to admit does not establish EUO nonappearance when the requested admissions go to the heart of the controversy.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50086(U))The provider's action was barred by res judicata because the prior declaratory judgment covered the same claim and accident.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51897(U))A declaratory judgment denying a provider's accident-related no-fault entitlement has preclusive effect even if entered on default.
Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))The insurer failed to establish timely mailing of its denials, and the provider failed to establish entitlement to payment as a matter of law.
Metro Health Prods., Inc. v Allstate Ins. Co. (2015 NY Slip Op 50812(U))The parties' summary judgment requests were denied because claim submission to the insurer remained a disputed factual issue.