Reported in New York Official Reports at Moon Rehab, P.T., P.C. v MVAIC (2019 NY Slip Op 51252(U))
[*1]| Moon Rehab, P.T., P.C. v MVAIC |
| 2019 NY Slip Op 51252(U) [64 Misc 3d 140(A)] |
| Decided on August 2, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2019
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-574 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for appellant. Law Offices 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 (Katherine A. Levine, J.), entered September 16, 2016. 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 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 Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.
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]). In light of the foregoing, we reach no other issue.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019Bronx Acupuncture Therapy, P.C. v MVAIC (2019 NY Slip Op 51253(U))
Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v MVAIC (2019 NY Slip Op 51253(U))
[*1]| Bronx Acupuncture Therapy, P.C. v MVAIC |
| 2019 NY Slip Op 51253(U) [64 Misc 3d 141(A)] |
| Decided on August 2, 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 August 2, 2019
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-611 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Jeffrey Kadushin 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 June 30, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,420.
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.
After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $1,420.
“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] [internal quotation marks and 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 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., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019Longevity Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51276(U))
Reported in New York Official Reports at Longevity Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51276(U))
[*1]| Longevity Med. Supply, Inc. v MVAIC |
| 2019 NY Slip Op 51276(U) [64 Misc 3d 143(A)] |
| Decided on August 2, 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 August 2, 2019
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1959 K C
against
MVAIC, Respondent.
Law Offices of Melissa Betancourt (Melissa Betancourt of counsel), for appellant. Marshall & Marshall, PLLC (Jaime E. Gangemi and Tracy Bader Pollak of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered March 23, 2017. 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.
Plaintiff’s assignor failed to demonstrate that he was a “qualified” person entitled to benefits from MVAIC, as the record indicates that plaintiff’s assignor was the named insured (see Insurance Law §§ 5202 [b]; 5208 [a] [1]; Barillas v Rivera, 32 AD3d 872 [2006]; see also Naula v Dela Puente, 48 AD3d 434 [2008]). Moreover, 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 [*2]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 triable issue of fact (see Insurance Law § 5208 [c]).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019Vision Rehab PT PC v MVAIC (2019 NY Slip Op 51206(U))
Reported in New York Official Reports at Vision Rehab PT PC v MVAIC (2019 NY Slip Op 51206(U))
[*1]| Vision Rehab PT PC v MVAIC |
| 2019 NY Slip Op 51206(U) [64 Misc 3d 1219(A)] |
| Decided on July 29, 2019 |
| Civil Court Of The City Of New York, Bronx County |
| Gomez, J. |
| 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 July 29, 2019
Vision Rehab PT PC,
AS ASSIGNEE OF SHADEQUA LEWIS, Plaintiff(s),
against MVAIC, Defendant(s). |
7000569/17
Attorney for Plaintiff: Olga Sklyut
Attorney for Defendant: Law Office of Jaime E. Gangemi
Fidel E. Gomez, J.
Defendant moves seeking an order granting it summary judgment pursuant to CPLR § 3212 and dismissing the complaint. Defendant asserts that because SHADEQUA LEWIS (Lewis or the assignor), the assignor, did not file a timely Notice of Claim, Lewis is not a qualified person under Insurance Law § 5221(b)(1), and as such, not entitled to any no-fault benefits from defendant. Plaintiff VISION REHAB PC PT (plaintiff) opposes the instant motion, asserting that defendant’s failure to timely deny plaintiff’s claims for medical services provided, submitted pursuant to the no-fault law, preclude defendant from availing itself of the foregoing defense. Plaintiff also cross-moves seeking an order granting it summary judgment pursuant to CPLR § 3212, asserting that because defendant failed to timely deny plaintiff’s claims for medical treatment provided to Lewis, plaintiff is entitled to summary judgment as a matter of law. Defendant opposes the instant cross-motion, asserting that the defense asserted – the failure to file a timely Notice of Claim – is a lack of coverage defense, which is not precluded by the failure to deny coverage within 30 days and can be raised at any time.
For the reasons that follow hereinafter, defendant’s motion is granted and plaintiff’s cross-motion is denied.
The instant action is for payment of no-fault insurance benefits for medical treatment. The endorsed complaint alleges, in relevant part, the following: Between April and June 2014, plaintiff, as a result of a covered event occurring on April 14, 2014, provided medical treatment to SHADEQUA LEWIS (Lewis or assignor). The value of said treatment was $958.82. Defendant, a no-fault [FN1] insurer, who as a matter of law was required to cover the foregoing treatment was presented with proof of the treatment and failed to pay plaintiff for the same. Thus, plaintiff seeks a judgment in the amount of $958.82.
In support of the instant motion, defendant submits an affidavit by Tarik Pollins (Pollins), a Qualifications Examiner employed by defendant, who states, upon a review of defendant’s [*2]records, in pertinent part, as follows: Plaintiff failed to receive payment for medical services provided to Lewis because plaintiff was not entitled to payment under the Insurance Law. Specifically, plaintiff failed to file a Notice of Claim within 90 days of the accident in which Lewis was involved. On April 14, 2014, Lewis was involved in an accident with an unidentified motor vehicle. Despite defendant mailing plaintiff multiple requests that it file a Notice of Intent to Make a Claim, in May, June, July and August 2014, Lewis did not file the forgoing notice until November 14, 2014, approximately seven months after the accident and four months beyond the 90th day after the accident. On November 18, 2014, defendant, mailed plaintiff an NF10 Denial of Claim Form, wherein it denied plaintiff’s claims for treatment rendered to Lewis on grounds that Lewis failed to file a Notice of Claim as required by Insurance Law § 5208.
Defendant submits all of the requests sent to plaintiff and referenced by Pollins in his affidavit and plaintiff’s Notice of Intention to Make Claim. The latter indicates that Lewis was involved in a motor vehicle accident on April 14, 2014 with a vehicle which fled the scene. The document is dated September 30, 2014.
Defendant’s motion is granted insofar as it establishes that in failing to timely file a Notice of Intent to Make a Claim, plaintiff is not a qualified person under the Insurance Law and therefore not entitled to no-fault benefits and, thus, payment for medical treatment provided to Lewis.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).
Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals,
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in inadmissible form (Johnson v Phillips, [*3]261 AD2d 269, 270 [1st Dept 1999]).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),
[s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).
No-Fault Law, MVAIC and Notices of ClaimInsurance Law § 5208(a)(2)(A) states, in relevant part, that
any qualified person having a cause of action because of death or bodily injury, arising out of a motor vehicle accident occurring within this state and reported within twenty-four hours after the occurrence to a police, peace or judicial officer in the vicinity or to the commissioner, and who files with the corporation within ninety days of the accrual of the cause of action, as a condition precedent to the right to apply for payment from the corporation
Thus, the timely filing of a notice of claim is a condition precedent to a plaintiff’s right to apply for payment of no-fault benefits from the Motor Vehicle Accident Indemnification Corporation (MVAIC) (Insurance Law § 5208; Hempstead Gen. Hosp. v MVAIC, 97 AD2d 544, 544 [2d Dept 1983]; SML Acupuncture P.C. v MVAIC, 55 Misc 3d 138[A], *1 [App Term 1st Dept 2017]; A.B. Medical Services, PLLC v Motor Vehicle Acc. Indemnification Corp., 10 Misc 3d 145[A], *2 [App Term, 2d Dept 11th Jud Dists 2006]). “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’ who is entitled to recover no-fault benefits from MVAIC” (M.N.M. Medical Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], *1 [App Term, 2d Dept 11th & 13th Jud Dists 2009]).
An application seeking leave of court to file a late notice of claim must be made within one year from the beginning of the applicable period for filing the notice of claim (Insurance Law § 5208(c); Walker v Motor Veh. Acc. Indem. Corp., 41 AD2d 527, 528 [1st Dept 1973], affd sub nom, Walker v Motor Veh. Acc. Indem. Corp., 33 NY2d 781 [1973]).
Discussion
Based on the foregoing, with Pollins’ affidavit and the Notice of Intent to Make a Claim filed by Lewis, defendant meets its prima facie burden by establishing that Lewis and indeed plaintiff failed to timely file a Notice of Claim within 90 days of the accident. To be sure, Pollins indicated that the accident herein occurred on April 14, 2014 but that plaintiff and/or Lewis did not file a Notice of Claim until November 14, 2014, some seven months later and more importantly four months after the expiration of the ninety day period prescribed by Insurance Law § 5208. As noted above, the timely filing of a notice of claim is a condition precedent to a plaintiff’s right to apply for payment of no-fault benefits from MVAIC (Insurance Law § 5208; Hempstead Gen. Hosp. at 544; SML Acupuncture P.C. at *1; A.B. Medical Services, PLLC at *2). Here, defendant’s evidence establishes that Lewis failed to comply with the foregoing requirement. Moreover, even though plaintiff has never moved for leave to file a belated notice of claim, an application seeking leave of court to file a late notice of claim must be made within [*4]one year from the beginning of the applicable period for filing the notice of claim (Insurance Law § 5208(c); Walker at 528). Here, more than six years have elapsed from the date of the instant accident such that leave to file a belated notice of claim is precluded as a matter of law.
Plaintiff fails to raise an issue of fact sufficient to preclude summary judgment. Contrary to plaintiff’s argument, defendant’s failure to timely deny plaintiff’s claims does not preclude it from asserting a lack of coverage defense because the failure to file a timely notice of claim is lack of coverage defense which can always be raised despite untimely denial of benefits (Cent. Gen. Hosp. v Chubb Group of Ins. Companies, 90 NY2d 195, 199 [1997] [“We are persuaded that an insurer, despite its failure to reject a claim within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15(g)(3), may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident. The denial of liability based upon lack of coverage within the insurance agreement, as framed in part by the litigation strategy and nature of the instant dispute, is distinguishable from disclaimer attempts based on a breach of a policy condition.”]; SML Acupuncture at *1; A.B. Medical Services, PLLC at *2; Matter of MVAIC v Interboro Med. Care & Diagnostic, P.C., 73 AD3d 667 [1st Dept 2010]). Insofar as plaintiff did not satisfy a condition precedent for recovery against defendant, she was not a “qualified” and thus, a “covered” person entitled to recover no-fault benefits from defendant. As such, Plaintiff, as an assignee who has no greater rights than those of its assignor (MB Advanced Equip., Inc. v MVAIC, 48 Misc 3d 1049, 1053 [Civ Ct, Kings County 2015]), may not recover on its claims for no-fault benefits.
In light of the foregoing, the Court need not consider defendant’s remaining argument. Moreover, plaintiff’s cross-motion must also be denied insofar as it premises summary judgment on the unavailing claim that defendant’s untimely disclaimer precludes the successful application of defendant’s defense based on the absence of a timely notice of claim (see (Cent. Gen. Hosp. at 199; SML Acupuncture at *1; A.B. Medical Services, PLLC at *2; Matter of MVAIC at 667).
Accordingly, defendant’s motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied. It is hereby
ORDERED that the Clerk dismiss the plaintiff’s complaint, with prejudice. It is further
ORDERED that defendant serve a copy of this Decision and Order upon plaintiff, with Notice of Entry, within thirty (30) days hereof.
This constitutes the Decision and Order of this Court.
Fidel E. Gomez, JCC.
Footnote 1: The payment of no-fault benefits and claims made pursuant thereto are governed by, inter alia, 11 NYCRR 65-3.1 which states that “[t]he following are rules for the settlement of claims for first-party and additional first-party benefits on account of injuries arising out of the use or operation of a motor vehicle, a motorcycle or an all-terrain vehicle. These rules shall apply to insurers and self-insurers, and the term insurer, as used in this section, shall include both insurers and self-insurers as those terms are defined in this Part and article 51 of the Insurance Law, the Motor Vehicle Accident Indemnification Corporation (MVAIC), pursuant to section 5221(b) of the Insurance Law and any company or corporation providing insurance pursuant to section 5103(g) of the Insurance Law, for the items of basic economic loss specified in section 5102(a) of the Insurance Law.”Matter of Hereford Ins. Co. v American Tr. Ins. Co. (2019 NY Slip Op 05778)
Reported in New York Official Reports at Matter of Hereford Ins. Co. v American Tr. Ins. Co. (2019 NY Slip Op 05778)
| Matter of Hereford Ins. Co. v American Tr. Ins. Co. |
| 2019 NY Slip Op 05778 [174 AD3d 805] |
| July 24, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Hereford Insurance Company, as Subrogee of
Samuel Mensah, Respondent, v American Transit Insurance Company, Appellant. |
Law Offices of Richard A. Reinstein, P.C., Brooklyn, NY (Joshua M. Goldberg of counsel), for appellant.
Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Timothy R. Bishop of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated April 13, 2017, American Transit Insurance Company appeals from an order of the Supreme Court, Queens County (Cheree A. Buggs, J.), entered March 26, 2018. The order granted the petition to confirm the arbitration award.
Ordered that the order is affirmed, with costs.
On May 15, 2015, a vehicle insured by Hereford Insurance Company (hereinafter Hereford) and owned by Samuel Mensah, and a vehicle insured by American Transit Insurance Company (hereinafter ATIC), were involved in a motor vehicle accident. As a result of the accident, Hereford paid a total of $70,027.94 in benefits to the injured party.
Thereafter, Hereford sought to recover the sum of $50,000 from ATIC in compulsory arbitration pursuant to Insurance Law § 5105. Of the $50,000 sought by Hereford, ATIC “disput[ed] the total of $16,551.89 over paid for services rendered in New Jersey.” The arbitrator determined that ATIC’s insured was 100% at fault in the happening of the accident. The arbitrator also determined that Hereford had proved all damages and awarded Hereford the sum of $50,000.
On October 16, 2017, Hereford, as subrogee of Mensah, commenced this proceeding pursuant to CPLR article 75 to confirm the arbitration award. ATIC opposed the petition, and requested that the award be vacated. In an order entered March 26, 2018, the Supreme Court granted the petition to confirm the award, determining that, “based upon the parties’ submissions, there [was] no basis to vacate the arbitrator’s award.” The court also noted that “[t]he fee schedule defenses were raised by [ATIC] in full detail in its contentions and fully considered by the arbitrator.” ATIC appeals.
“While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious” (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y., 144 AD3d 1160, 1160-1161 [2016] [internal quotation marks omitted]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982 [2018]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015], quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).
Here, the arbitrator’s determination that Hereford was entitled to recoup $50,000 for the benefits paid to the injured party was not arbitrary and capricious. “[E]ven assuming that the arbitrator might have misapplied applicable law . . . the arbitrator’s award was . . . supported by a ‘reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).
ATIC’s remaining contention is without merit.
Accordingly, we agree with the Supreme Court’s determination to grant the petition to confirm the arbitration award. Mastro, J.P., Miller, Barros and Christopher, JJ., concur.
Reported in New York Official Reports at Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Integon National Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Odierno Law Firm, P.C. (Paul A. Bargellini of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 16, 2018. The judgment, upon a decision of that court dated February 2, 2015, after a nonjury trial, awarded plaintiff the principal sum of $17,388.68.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 2, 2015 is deemed a premature notice of appeal from the judgment entered August 16, 2018 (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, a nonjury trial was held, limited, pursuant to a stipulation, to defendant’s defense of lack of medical necessity. The parties further stipulated that defendant’s witness, an orthopedic surgeon, was an expert. Defendant’s witness testified that he had read a peer review report prepared by a different doctor and that he agreed with the peer reviewer’s conclusion that the services provided to the assignor were not medically necessary nor causally related to the assignor’s motor vehicle accident. Plaintiff did not call any witnesses to rebut defendant’s doctor’s testimony. Following the trial, the Civil Court found that defendant’s witness was not credible and awarded judgment to plaintiff in the principal sum of $17,388.68.
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 [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). At a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s expert witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, we find no basis to disturb the Civil Court’s findings.
Accordingly, the judgment is affirmed.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51185(U))
| Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. |
| 2019 NY Slip Op 51185(U) [64 Misc 3d 139(A)] |
| Decided on July 19, 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1348 K C
against
Erie Insurance Company of New York, Appellant.
Robyn M. Brilliant 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 February 15, 2014, deemed from a judgment of that court entered June 22, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 15, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,652.63.
ORDERED that the judgment is reversed, with $30 costs, the order entered February 15, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint 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 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered February 15, 2014, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. Defendant’s appeal from the February 15, 2014 order is deemed from a judgment that was entered on June 22, 2017 pursuant to the order (see CPLR 5501 [c]).
In support of its cross motion, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St.
Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit from a doctor which failed [*2]to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the judgment is reversed, the order entered February 15, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Right Aid Med. Supply Corp. v Travelers Ins. Co. (2019 NY Slip Op 51184(U))
| Right Aid Med. Supply Corp. v Travelers Ins. Co. |
| 2019 NY Slip Op 51184(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-797 K C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Janice A. Robinson 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 September 26, 2016, deemed from a judgment of that court entered November 29, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to a decision of the same court dated September 26, 2016, after a nonjury trial, dismissed the complaint.ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether the verification requested by defendant had been provided. The only witness at trial was an employee of defendant who testified that defendant had not received the requested verification. The Civil Court found the testimony to be credible and entered judgment dismissing the complaint.
Contrary to plaintiff’s sole argument, the testimony by defendant’s witness was sufficient to establish that defendant had not received the requested verification. The witness, a 27-year employee of defendant, testified regarding defendant’s policies and procedures for the receipt of mail, both at the Buffalo office, where certain items were sent, and the Melville office, where the claims at issue were processed.
Accordingly, the judgment is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))
| Brand Med. Supply, Inc. v Repwest Ins. Co. |
| 2019 NY Slip Op 51183(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-686 K C
against
Repwest Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bryan Cave, LLP (Laurie Belony of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 11, 2017. The order, insofar as appealed from as limited by the brief, granted 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’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court granted defendant’s motion.
Plaintiff’s sole argument on appeal is that defendant mailed the IME scheduling letters to the assignor’s address without using an apartment number, and that, therefore, that defendant’s motion should have been denied. However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IMEs (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U))
| Mollo v 21st Century Ins. Co. |
| 2019 NY Slip Op 51182(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-615 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Konstantinos Tsirkas of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 2, 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 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 summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Plaintiff correctly contends that certain letters from defendant were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the examination under oath (EUO) scheduling letters which were timely mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Additionally, contrary to plaintiff’s argument, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019