Reported in New York Official Reports at Right Aid Med. Supply Corp. v MVAIC (2019 NY Slip Op 51682(U))
[*1]| Right Aid Med. Supply Corp. v MVAIC |
| 2019 NY Slip Op 51682(U) [65 Misc 3d 137(A)] |
| Decided on October 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-2707 K C
against
MVAIC, Respondent.
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 (Richard J. Montelione, J.), entered September 12, 2016. 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, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
All of plaintiff’s arguments as to why defendant’s motion for summary judgment should have been denied are not properly before this court, since they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51683(U))
Reported in New York Official Reports at AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51683(U))
[*1]| AR Med. Rehabilitation, P.C. v MVAIC |
| 2019 NY Slip Op 51683(U) [65 Misc 3d 138(A)] |
| Decided on October 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-104 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated November 19, 2014, and from a judgment of that court entered October 8, 2015. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $8,557.97.
ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); and it is further,
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the sole issue was whether plaintiff’s assignor was injured during the underlying motor vehicle accident. Following the trial, the Civil Court awarded judgment to plaintiff. Upon a review of the record, we find that the court erroneously excluded the police report regarding the accident at issue from evidence. As the report was material to the sole issue before the court, we find that a new trial is required.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Compas Med., P.C. v MVAIC (2019 NY Slip Op 51687(U))
Reported in New York Official Reports at Compas Med., P.C. v MVAIC (2019 NY Slip Op 51687(U))
[*1]| Compas Med., P.C. v MVAIC |
| 2019 NY Slip Op 51687(U) [65 Misc 3d 138(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-2023 K C
against
MVAIC, Respondent.
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 (Joy F. Campanelli, J.), entered February 17, 2017. 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 affirmed, with $25 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 on the ground, among others, that the action had been commenced after the statute of limitations had expired, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.
MVAIC’s motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations (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], [*2]2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). We reach no other issue.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Bronx Acupuncture Therapy, P.C. v MVAIC (2019 NY Slip Op 51694(U))
Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v MVAIC (2019 NY Slip Op 51694(U))
[*1]| Bronx Acupuncture Therapy, P.C. v MVAIC |
| 2019 NY Slip Op 51694(U) [65 Misc 3d 139(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-338 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Gary Tsirelman, P.C. (Evan Polansky of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 2, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,130.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
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 judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,130.
“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citation omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its [*2]prima facie case (see Insurance Law §§ 5202 [b]; 5208, 5221 [b] [2]). In light of the foregoing, we reach no other issue.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019A.C. Med., P.C. v MVAIC (2019 NY Slip Op 51698(U))
Reported in New York Official Reports at A.C. Med., P.C. v MVAIC (2019 NY Slip Op 51698(U))
[*1]| A.C. Med., P.C. v MVAIC |
| 2019 NY Slip Op 51698(U) [65 Misc 3d 139(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1072 K C
against
MVAIC, Respondent.
Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Marshall & Marshall, PLLC (Tracy Bader Pollak 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 20, 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 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 granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Plaintiff, as assignee, was required to exhaust its remedies against all potential insurance carriers before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Orlin & Cohen Orthopedic Assoc. v Motor Veh. Acc. Indem. Corp., 58 Misc 3d 132[A], 2017 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, plaintiff did not demonstrate that it had exhausted its remedies. As a result, plaintiff’s claim is premature (see Hauswirth, 244 AD2d 528).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Yellow Riv. Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51699(U))
Reported in New York Official Reports at Yellow Riv. Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51699(U))
[*1]| Yellow Riv. Acupuncture, P.C. v MVAIC |
| 2019 NY Slip Op 51699(U) [65 Misc 3d 140(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1076 K C
against
MVAIC, Respondent.
Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 19, 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 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 granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Since MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law § 5208 [a]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In opposition to MVAIC’s motion, plaintiff failed to establish that leave had been obtained to file a late notice of claim or otherwise raise a [*2]triable issue of fact (see Insurance Law § 5208 [c]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Yellow Riv. Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51700(U))
Reported in New York Official Reports at Yellow Riv. Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51700(U))
[*1]| Yellow Riv. Acupuncture, P.C. v MVAIC |
| 2019 NY Slip Op 51700(U) [65 Misc 3d 140(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1079 K C
against
MVAIC, Respondent.
Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for appellant. Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered March 19, 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 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 granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Yellow River Acupuncture, P.C., as Assignee of Ira Sutton v MVAIC (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-1076 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. (2019 NY Slip Op 51703(U))
Reported in New York Official Reports at Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. (2019 NY Slip Op 51703(U))
[*1]| Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. |
| 2019 NY Slip Op 51703(U) [65 Misc 3d 140(A)] |
| Decided on October 18, 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 October 18, 2019
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1276 K C
against
GEICO Casualty Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).
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 as limited by the brief, denied defendant’s motion to sever the claim of each assignor into separate actions.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to sever the claim of each assignor into separate actions is granted.
In this action by a provider to recover first-party no-fault benefits assigned to it by six assignors, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion pursuant to CPLR 603 to sever the causes of action into six separate actions.
The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates and the denial of claim forms indicate that the claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor. Therefore, there are likely to be few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2012]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to sever the claims into separate actions is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019Spine Care of NJ, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51632(U))
Reported in New York Official Reports at Spine Care of NJ, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51632(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Global Liberty Insurance Company of New York, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum 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 (Sharon Bourne-Clark, J.), entered June 14, 2018. The order, insofar as appealed from and as limited by the brief, granted the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on bills for services rendered on December 21, 2016 and December 29, 2016.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on bills for services rendered on December 21, 2016 and December 29, 2016 are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on bills for services rendered on December 21, 2016 and December 29, 2016.
The branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on bills for services rendered on December 21, 2016 and December 29, 2016 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 [*2]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 reversed, and the branches of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover on bills for services rendered on December 21, 2016 and December 29, 2016 are denied.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019
Reported in New York Official Reports at Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))
| Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY |
| 2019 NY Slip Op 51631(U) [65 Misc 3d 135(A)] |
| Decided on October 11, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on October 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1600 K C
against
Global Liberty Ins. Co. of NY, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 15, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,342.08.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.
Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019