The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of James F. Sullivan, 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 May 2, 2016. The order granted the branch of defendant’s cross motion seeking to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order 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 summary judgment dismissing the complaint or, in the alternative, to hold the action in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. By order entered May 2, 2016, the Civil Court granted the branch of defendant’s cross motion seeking to hold the action in abeyance. Plaintiff appeals.

Defendant proffered sufficient evidence to support its contention that there is an issue of fact as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since primary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board, it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro [*2]v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). In the case at bar, the Civil Court correctly recognized that the issue of eligibility for workers’ compensation benefits must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; New Millennium Radiology, P.C., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U]) before the court considers whether plaintiff is entitled to recover first-party no-fault benefits.

Accordingly, the order is affirmed.

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

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 29, 2016, against petitioner in favor of respondent, and bringing up for review an order, same court and Justice, entered January 12, 2016, which denied petitioner’s motion to vacate an arbitral award and remand to the lower arbitrator for a de novo hearing, and granted respondent’s motion to confirm the award, unanimously reversed, on the law, without costs, the judgment vacated, petitioner’s motion granted, and respondent’s motion denied.

Respondent seeks from petitioner no-fault insurance benefits for medical equipment that respondent provided to its assignor, who was involved in a motor vehicle accident. In denying respondent’s claim, petitioner relied on a peer review report that concluded, based on a review of the medical records, that the assignor’s condition was degenerative in nature and not post-traumatic and therefore that the surgery undergone by the assignor was “not medically necessary in relation to the accident” (emphasis supplied). The arbitral award must be vacated and a de novo hearing held, because, on the record before us, as argued, it would be irrational to conclude that the need for the subject medical equipment was causally related to the accident (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [2d Dept 1999]; Shahid Mian, M.D., P.C. v Interboro Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50589[U] [App Term, 1st Dept 2013]). Concur—Friedman, J.P., Renwick, Webber, Kahn, Kern, JJ.

CV-707232-16/QU

LAW OFFICES OF GABRIEL & SHAPIRO, L.L.C.

Counsel for Plaintiff

Andrew J. Dowd, M.D.

As Assignee of Audra Fulton

3361 Park Avenue, Suite 1000

Wantagh, New York 11793

Joseph J. Padrucco, Esq.

LAW OFFICES OF KAREN L. LAWRENCE

Counsel for Defendant

Allstate Insurance Company

1225 Franklin Avenue, Suite 100

Garden City, New York 11530

Marie-Ann Inguanti, Esq.

I.Background

Andrew Dowd, M.D. (the “Plaintiff”), as assignee of Audra Fulton (the “Assignor”), commenced this action based on Assignor’s automobile accident that allegedly occurred on or about February 6, 2012. Plaintiff served a summons and complaint on defendant Allstate Insurance Company (the “Defendant”) on or about October 12, 2016. Defendant joined issue by service of its answer on or about October 28, 2016.

On or about April 18, 2012, a letter purportedly addressed to Assignor’s alleged attorney, Richard Gershman & Associates, was sent on behalf of Defendant by Defendant’s contractor to [*2]schedule an independent medical examination (“IME”). A copy of the letter was also allegedly mailed to Assignor. The April 18, 2012 IME letter stated that Assignor’s IME was scheduled for May 5, 2012 at 1:30 p.m. and notably indicated that the IME was prompted by an accident that took place on February 5, 2012—not February 6, 2012, which is the alleged date of the accident in the current matter’s complaint. Assignor failed to appear for the scheduled IME on May 5, 2012.

On or about May 9, 2012, a second letter was allegedly mailed to Richard Gershman & Associates and Assignor that rescheduled Assignor’s IME to May 19, 2012 at 2:00 p.m., and the May 9, 2012 letter also indicated that the IME was prompted by an accident that took place on February 5, 2012. Assignor failed to appear for the rescheduled IME on May 19, 2012.

On or about June 19, 2012, Defendant received a bill in the amount of $1,186.42 for medical services provided by Plaintiff to Assignor on May 18, 2012. On or about July 10, 2012, a denial of claim form and explanation of medical benefits for date of service May 18, 2012, was allegedly sent to Richard Gershman & Associates and Assignor. Defendant’s sole basis for denying Plaintiff’s claim was Assignor’s failure to appear at the above IME appointments.

Defendant now moves for summary judgment, dismissing Plaintiff’s complaint or, in the alternative, granting the instant motion to the extent of finding that Defendant has established a prima facie case as to the mailing of its denial forms, setting this matter down for a hearing on the issue of IME no show and tolling the interest together with such other and further relief as the Court deems proper.

In accordance with rule 2219 of New York’s Civil Practice Law and Rules (“CPLR”), the Court considered herein the following: (1) Defendant’s notice of motion for summary judgment and motion to dismiss, affirmation in support of said motions and corresponding exhibits; (2) Plaintiff’s affirmation in opposition and corresponding exhibits; and (3) Defendant’s reply affirmation. As explain below, Defendant’s motion for summary judgment and motion to dismiss are denied.

II.Discussion

Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally Brill v City of New York, 2 NY3d 648, 651 [2004]). Since summary judgment deprives the non-moving parties of their day in court and has res judicata effects, it is therefore only appropriate “if no genuine, triable issue of fact is presented” (see Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). On a motion for summary judgment, the moving party must make out its prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see Marshall v Arias, 12 AD3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see Zolin v Roslyn Synagogue, 154 AD2d 369, 370 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see McArdly v M & M Farms of New City, Inc., 90 AD2d 538, 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see William Iselin & Co., Inc. v Landau, 71 NY2d 420, 427 [1988]; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).

In support of Defendant’s motion for summary judgment, Defendant was required to establish, prima facie, that the April 18, 2012 and May 9, 2012 IME letters were mailed to [*3]Assignor and that Assignor failed to appear for the IMEs (see generally Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2d Dept 2006]). Defendant has not met its burden because Defendant submits conclusory allegations that fail to establish that Defendant’s practices and procedures for mailing IME letters was designed to ensure that the IME letters were addressed to the proper party and properly mailed (see Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2d Dept 2007]; Orthotech Express Corp. v. MVAIC, 2012 NY Slip Op 51913[U], *1 [App Term, 1st Dept 2012] (“The affiant, however, had no personal knowledge of the dates the IME notices were actually mailed, and described in only the most general terms her offices mailing practices and procedures. In the absence of any recitation of such matters as how the names and addresses on the IME notices were checked for accuracy and how the notices were picked up for mailing, we cannot say, on this record, that the office practice and procedure followed by Defendant’s contractor was designed to ensure that the [IME notices] were addressed to the proper parties and properly mailed.”) (internal quotation marks and citation omitted)).

Specifically, in discussing Defendant’s general practices and procedures associated with mailing IME letters, the affidavit of Defendant’s contractor merely states that “[t]he IME scheduling letter is generated with the name and address of the attorney representing the person to be examined, as provided by the insurance carrier, placed at the top of the scheduling letter” (aff of Jean Rony Pressoir at 2) (emphasis added). Defendant fails to provide any evidence detailing the practices and procedures implemented by Defendant, as the insurance carrier, or Defendant’s contractor to ensure that the correct address was used (see Westchester, 45 AD3d at 676-677).

Although Defendant’s contractor further states that “[i]t is [Defendant’s contractor’s] regular office business and policies and procedures that the letters are mailed to the claimants address on the bill” (aff of Jean Rony Pressoir at 3) (emphasis added), this practice and procedure is inapplicable to the current matter because the IME letters at issue were mailed before any claims were submitted by Plaintiff. Accordingly, Defendant has failed to make out a prima facie case establishing that it is entitled to summary judgment.

Moreover, the Court finds no basis to grant Defendant’s motion to dismiss Plaintiff’s complaint pursuant to CPLR 3211 [a] [1], CPLR 3211 [a] [7] and CPLR 3211 [a] [5]. Indeed, the documentary evidence submitted by Defendant fails to conclusively establish a defense as a matter of law (see Carlson v Am. Intern. Grp., Inc., 30 NY3d 288, 298 [2017] (“Under CPLR 3211 [a] [1], a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law.”). Plaintiff has adequately pled causes of action pursuant to New York’s no-fault regulations (see Shebar v Metro. Life Ins. Co., 25 AD3d 858, 859 [3d Dept 2006] (“[O]n a motion to dismiss for failure to state a claim, the court must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable theory”) (internal quotation marks and citation omitted)).

Furthermore, although Defendant did not specifically state the grounds for its motion to dismiss pursuant to CPLR 3211 [a] [5], the Court presumes that Defendant’s motion is based on a prior arbitration award referred to by Defendant that was issued against a different Plaintiff in a separate matter. Plaintiff in the current matter has not agreed to be bound by an arbitration award, Plaintiff has not waived any remedies at law and this Court is not bound by an arbitration award against a different Plaintiff in a separate matter (see Zupan v. Firestone, 91 AD2d 561, 562 [1st Dept 1982] (dismissing plaintiff’s complaint pursuant to CPLR 3211 [a] [5] where an arbitration award was issued after plaintiff consented to arbitration and agreed to be bound by any determination and waived her rights to pursue any remedies at law against the defendant); Tenenbaum v Setton, 18 NYS3d 498, 500 [App Term, 2d Dept, 11th & 13th Jud Dists 2015]).

[*4]III.Conclusion

Accordingly, it is hereby ordered that Defendant’s motion for summary judgment and motion to dismiss are denied.

This constitutes the decision and order of the Court.

Dated:March 11, 2019

Jamaica, New York

Hon. John C.V. Katsanos

Judge, Civil Court

Decided on March 8, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 8, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 8, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on March 8, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber of counsel), for appellant. Law Firm of Natalia Skvortsova, PLLC (Natalia Skvortsova and Pryanka Arora of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 1, 2016. The order denied defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

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 to strike the complaint and dismiss the action pursuant to CPLR 3126.

This action, commenced in 2010, involved numerous discovery disputes, during which, among other things, plaintiff’s owner, Dr. John McGee, was ordered to appear for a deposition. After that deposition and further discovery, certain of plaintiff’s claims were dismissed based on plaintiff’s “failure to comply in good faith with defendant’s discovery demands.” In 2014, Dr. McGee was ordered to appear for a second deposition, this time on the issue of whether plaintiff was in violation of state licensing requirements prohibiting nonphysicians from owning or controlling medical service corporations, “i.e. [whether] Dr. John McGee is plaintiff’s bona fide owner & operator” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; Andrew Carothers, M.D., P.C. v Progressive Ins. Co., 42 Misc 3d 30, 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013], affd 150 AD3d 192 [2017], lv granted 2017 NY Slip Op 90794[U] [2017]). At that deposition, Dr. McGee testified that he was plaintiff’s owner and sole physician, and that he performed medical and managerial tasks for plaintiff. Over defendant’s objection, and on the advice of plaintiff’s counsel—based upon her claim that, in essence, the questions [*2]were irrelevant—Dr. McGee refused to answer several questions, including those pertaining to other medical service corporations which Dr. McGee either admittedly or allegedly owned or operated during the time plaintiff was in operation, and Dr. McGee’s involvement with those corporations, including his hours and duties at those corporations.

Defendant subsequently moved to strike the complaint and dismiss the action, based on Dr. McGee’s refusal to answer questions and on plaintiff’s alleged spoliation of evidence. The Civil Court denied defendant’s motion, stating, among other things, that the questions at issue were “outside the scope of the deposition due to the fact that they had nothing to do with the plaintiff corporation.”

Contrary to the finding of the Civil Court, the questions at issue were “designed to elicit information which was material and necessary to the appellant’s defense of this action” (Parker v Ollivierre, 60 AD3d 1023, 1024 [2009]), as Dr. McGee’s involvement in other medical service corporations, including how much time he spent at those entities, could necessarily affect his involvement in the daily activities and management of plaintiff, and were relevant to whether Dr. McGee was plaintiff’s “bona fide owner [and] operator.” Moreover, counsel’s “directions not to answer [the questions at issue] were not otherwise authorized by [Uniform Rules for the Conduct of Depositions] 22 NYCRR [§] 221.2” (id. at 1024). In light of plaintiff’s failure to fully comply with discovery over many years, plaintiff’s refusal to answer the questions at issue may be presumed to be willful and contumacious (see e.g. Honghui Kuang v MetLife, 159 AD3d 878 [2018]); therefore, a sanction is warranted. Given that certain of plaintiff’s claims have already been struck based upon its noncompliance with discovery and that Dr. McGee has already been deposed twice, we find that striking plaintiff’s complaint is the appropriate sanction (see id.).

Accordingly, the order is reversed and defendant’s motion to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted.

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

Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Law Office of Aloy O. Ibuzor (Michael L. Rappaport 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 February 18, 2016. The order granted defendant’s motion for leave to amend its answer and, upon amendment, 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 for services it had rendered to its assignor, defendant moved for leave to amend its answer to assert the affirmative defense of collateral estoppel and, upon amendment, for summary judgment dismissing the complaint. By order dated January 7, 2016, the Civil Court granted defendant’s motion.

In support of the branch of defendant’s motion seeking leave to amend its answer to assert the affirmative defense of collateral estoppel, defendant argued that an April 2014 arbitrator’s decision had found that plaintiff could not recover no-fault benefits because it was not a licensed professional medical corporation in the State of New York. Leave to amend a pleading “shall be freely given” absent prejudice or surprise resulting from the delay (CPLR 3025 [b]). Mere lateness is not a barrier to an amendment; rather, significant prejudice must be demonstrated to justify the denial of an application for an amendment (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). Contrary to plaintiff’s arguments, plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to the answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), or to establish that defendant had waived its right to assert the defense. Consequently, the Civil Court properly granted the branch of defendant’s motion seeking leave to amend its answer.

With respect to the branch of defendant’s motion seeking summary judgment based on the [*2]doctrine of collateral estoppel, plaintiff’s argument on appeal as to why the doctrine of collateral estoppel does not apply in the case at bar is, essentially, that it cannot be determined if the issues to be litigated were substantially similar because defendant failed to include in its motion the evidence and documents submitted by the parties at the arbitration. In view of the fact that plaintiff does not point to any ambiguity in the arbitrator’s decision, or any distinction between the facts of this case and those underlying the arbitration, or any other meritorious argument, plaintiff has presented no basis to disturb so much of the order of the Civil Court as, upon amendment of the answer, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Decided on March 8, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS