Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U))

Reported in New York Official Reports at Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U))

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))

Reported in New York Official Reports at Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))

Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52045(U))

Reported in New York Official Reports at Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52045(U))

[*1]

Active Care Med. Supply Corp. v MVAIC

2019 NY Slip Op 52045(U) [66 Misc 3d 128(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-982 K C

Marshall & Marshall, PLLC (Barbara Carabell 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 February 2, 2018, deemed from a judgment of that court entered May 1, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 2, 2018 order denying defendant’s motion for summary judgment dismissing the complaint or, in the alternative, granting defendant leave to amend its answer, and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $6,876.40.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint or, in the alternative, for leave to amend its answer to assert that plaintiff is collaterally estopped from maintaining the present action. Plaintiff cross-moved for summary judgment. Defendant appeals from an order of the Civil Court entered February 2, 2018 denying defendant’s motion and granting plaintiff’s cross motion. A judgment was subsequently entered on May 1, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The papers submitted by MVAIC in support of the branch of its motion seeking summary judgment demonstrate that MVAIC neither denied the claims within 30 days of receiving them [*2]nor timely sought to extend its time to do so by requesting verification (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a] [1]). In New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp. (12 AD3d 429 [2004]), the Appellate Division rejected MVAIC’s contention that the 30-day claim determination period does not begin to run until after MVAIC is satisfied that a claimant is a “qualified person” (see Insurance Law § 5202 [b]) who is also a “covered person” (see Insurance Law § 5221 [b] [2]). The Appellate Division held that defenses which are subject to preclusion remain subject to the time frames set forth in the regulations applicable to claims which seek to recover first-party no-fault benefits pursuant to Insurance Law article 51. Consequently, MVAIC’s contentions that it is entitled to summary judgment due to plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations, as well as plaintiff’s failure to provide requested verification, lack merit as both defenses are precluded (see New York Hosp. Med. Ctr. of Queens, 12 AD3d 429; Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC, 53 Misc 3d 148[A], 2016 NY Slip Op 51622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

MVAIC’s remaining contention—that the branch of its motion seeking leave to amend its answer to assert collateral estoppel should have been granted—lacks merit. Plaintiff was not named in the other proceedings upon which MVAIC relies nor, at the time, was it in privity with someone who was (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Maxford, Inc. v Erie Ins. Co. of NY, 60 Misc 3d 135[A] 2018 NY Slip Op 51057[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the judgment is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U))

Reported in New York Official Reports at Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U))

[*1]

Metro Pain Specialist, P.C. v Hertz Co.

2019 NY Slip Op 52047(U) [66 Misc 3d 129(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1091 K C

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. The Rybak Firm, PLLC (Damin 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 the policy limits had been exhausted and plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, and, upon denying plaintiff’s cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings that the only remaining issues for trial were defendant’s defenses that the policy limits had been exhausted, that defendant had never received the claim for services rendered on June 26, 2015, and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule.

Contrary to defendant’s contention, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it 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 [*2]Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint on that ground.

While the affidavit of defendant’s claims adjuster demonstrated, prima facie, that defendant had not received the claim form for services rendered on June 26, 2015, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the subject claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

To the extent defendant argues that it was entitled to summary judgment on the ground that the fees sought exceeded the amount permitted by the fee schedule, such an argument is devoid of merit. Defendant’s motion did not seek summary judgment on this ground and defendant offered zero evidence to support such a defense.

Contrary to defendant’s contention, defendant fails to articulate a sufficient basis to strike the Civil Court findings, in effect pursuant to CPLR 3212 (g), 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]). Defendant’s remaining contention lacks merit.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Charles Deng Acupuncture, P.C. v MVAIC (2019 NY Slip Op 52049(U))

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v MVAIC (2019 NY Slip Op 52049(U))

[*1]

Charles Deng Acupuncture, P.C. v MVAIC

2019 NY Slip Op 52049(U) [66 Misc 3d 129(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1174 K C

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damien Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 10, 2018. 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 modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are granted and the matter is remitted to the Civil Court for a hearing in accordance with the decision herein and a new determination thereafter on the branches of defendant’s motion seeking summary judgment dismissing the fifth through seventh 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, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied MVAIC’s motion which had sought summary judgment dismissing the complaint on the grounds that the statute of limitations had expired, that MVAIC never received the claim forms underlying the fifth through seventh causes of action, and that the limits of any available coverage had already been exhausted.

MVAIC’s motion papers established, prima facie, that the action had been commenced after the three-year statute of limitations had expired with respect to the claims underlying the first through fourth causes of action (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

With respect to the fifth through seventh causes of action, contrary to MVAIC’s argument, it failed to establish, as a matter of law, an exhaustion of the available coverage limits, as it did not demonstrate that the available limits had been exhausted at the time the claims at issue were complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Nevertheless, MVAIC did demonstrate that it is entitled to summary judgment dismissing these causes of action; however, the record does not establish, as a matter of law, whether the dismissal should be with prejudice or without prejudice. While MVAIC made a prima facie showing that it had not received the claim forms underlying these causes of action, the affidavit submitted by plaintiff’s owner was sufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). If the subject claim forms were mailed by plaintiff and received by MVAIC, the branch of MVAIC’s motion which asserts that the statute of limitations had expired before plaintiff commenced this action upon such claim forms should be granted, and such a dismissal would be with prejudice. However, if MVAIC sufficiently establishes that it never received them, the branch of MVAIC’s motion which asserts that these causes of action are premature should instead be granted (see Veraso Med. Supply Corp. v NY City Tr. Auth., 63 Misc 3d 152[A], 2019 NY Slip Op 50754[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]), which dismissal would be without prejudice. As a result, we are of the opinion that, under the unique circumstances presented, a hearing is necessary pursuant to CPLR 2218, on the limited issue of whether plaintiff mailed and MVAIC received the claim forms underlying the fifth through seventh causes of action (see Med-Tech Prods., Inc. v Statewide Ins. Co., 35 Misc 3d 128[A], 2012 NY Slip Op 50584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]), as the findings made after such a hearing will prove dispositive.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through fourth causes of action are granted, and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine whether MVAIC received the claim forms which are the subject of the fifth through seventh causes of action and thus, the ground upon which the branches of defendant’s motion seeking summary judgment dismissing such causes of action shall be granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019SK Prime Med. Supply v Permanent Gen. Assur. Corp. (2019 NY Slip Op 52052(U))

Reported in New York Official Reports at SK Prime Med. Supply v Permanent Gen. Assur. Corp. (2019 NY Slip Op 52052(U))

[*1]

SK Prime Med. Supply v Permanent Gen. Assur. Corp.

2019 NY Slip Op 52052(U) [66 Misc 3d 129(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1232 K C

Freiberg, Peck & Kang, LLP (Yilo J. Kang 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 (Michael Gerstein, J.), entered August 11, 2017. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 of lack of coverage, in that defendant had cancelled the insurance policy, for nonpayment of the premium, prior to the accident at issue. Plaintiff opposed the motion and cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered August 11, 2017 as denied defendant’s motion.

Upon a review of the record, we find that defendant sufficiently demonstrated that it had mailed a policy cancellation letter to the insured in accordance with Vehicle and Traffic Law § 313 (1), and that defendant had filed a copy of the notice of cancellation with the Department of Motor Vehicles within 30 days of the effective date of the cancellation, pursuant to Vehicle and Traffic Law § 313 (2) (a) (see Bullock v Hanover Ins. Co., 144 AD2d 416, 471 [1988]; KJC Chiropractic, P.C. v Hartford Ins. Co., ___ Misc 3d ___, 2019 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; cf. Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Material Damage Adj. Corp. v King, 1 AD3d 439 [2003]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant demonstrated that the cancellation is effective with respect to plaintiff’s assignor, who was not the named insured or a member of the [*2]insured’s household (see Vehicle and Traffic Law § 313 [3]; Matter of Liberty Mut. Ins. Co. v Vidale, 207 AD2d 489, 490 [1994] [where the insurance policy was cancelled effective May 16, 1991, the accident occurred on June 1, 1991, and the insurer sent notice of the policy cancellation to the Department of Motor Vehicles on June 10, 1991, the court held that the insurer had “met its burden of proving that its policy was validly canceled” as to the third parties]). Consequently, defendant should have been awarded summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52058(U))

Reported in New York Official Reports at Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52058(U))

[*1]

Active Care Med. Supply Corp. v MVAIC

2019 NY Slip Op 52058(U) [66 Misc 3d 130(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1351 K C

Marshall & Marshall, PLLC (Frank D’Esposito 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 S. Garson, J.), entered May 23, 2018, deemed from a judgment of that court entered June 14, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 23, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $7,071.54.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification. Plaintiff cross-moved for summary judgment. By order entered May 23, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. A judgment was subsequently entered on June 14, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

For the reasons set forth in Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC (53 Misc 3d 148[A], 2016 NY Slip Op 51622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the judgment is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Beacon Acupuncture, P.C. v Hertz Claim Mgt. (2019 NY Slip Op 52059(U))

Reported in New York Official Reports at Beacon Acupuncture, P.C. v Hertz Claim Mgt. (2019 NY Slip Op 52059(U))

[*1]

Beacon Acupuncture, P.C. v Hertz Claim Mgt.

2019 NY Slip Op 52059(U) [66 Misc 3d 130(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1354 K C

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 22, 2018. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from September 28, 2015 through February 3, 2016 are granted; 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 so much of an order of the Civil Court as denied defendant’s cross 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).

As to the claims for services rendered from September 28, 2015 through February 3, 2016, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; 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, 11th & 13th Jud Dists 2011]).

As to the remaining claims, defendant stated that the first EUO scheduling letter had been sent more than 30 days after defendant had received those claims; therefore, the request was a nullity with respect 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from September 28, 2015 through February 3, 2016 are granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 52061(U))

Reported in New York Official Reports at Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 52061(U))

[*1]

Island Life Chiropractic Pain Care, PLLC v MVAIC

2019 NY Slip Op 52061(U) [66 Misc 3d 130(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1502 K C

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Barbara Carabell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 22, 2018. The order denied plaintiff’s motion for entry of a default judgment and granted defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer.

ORDERED that the order is affirmed, with $25 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 the entry of a default judgment and granted defendant’s cross motion to open its default in answering 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]).

Contrary to plaintiff’s contention, the Civil Court did not improvidently exercise its discretion in finding that defendant had established a reasonable excuse for not timely answering the complaint. Further, defendant demonstrated that it had a potentially meritorious defense as to whether there was a lack of coverage for plaintiff’s claims because the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199-200 [1997]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019Tadros v MVAIC (2019 NY Slip Op 52066(U))

Reported in New York Official Reports at Tadros v MVAIC (2019 NY Slip Op 52066(U))

[*1]

Tadros v MVAIC

2019 NY Slip Op 52066(U) [66 Misc 3d 131(A)]

Decided on December 13, 2019

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2019

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1622 K C

Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt 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 July 12, 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 reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

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 an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Since plaintiff’s assignor was aware of the identity of the owner of the vehicle in which plaintiff’s assignor was a passenger at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed, defendant’s motion for summary judgment is granted and plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019