Reported in New York Official Reports at Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)
| Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. |
| 2019 NY Slip Op 29225 [64 Misc 3d 98] |
| Accepted for Miscellaneous Reports Publication |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, September 27, 2019 |
[*1]
| Pierre J. Renelique Physician, P.C., as Assignee of Jose Mercado, Appellant, v Allstate Insurance Company, Respondent. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 19, 2019
APPEARANCES OF COUNSEL
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel) for appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg and Samuel Kamara of counsel) for respondent.
{**64 Misc 3d at 99} OPINION OF THE COURT
Ordered that the order is reversed, without costs, and the branch of defendant’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the default judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on April 15, 2016, upon defendant’s failure to appear or answer the complaint. Defendant thereafter moved to, among other things, vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that it has an excusable default and a meritorious defense, or, in the alternative, for an order directing a traverse hearing. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that defendant failed to establish a reasonable excuse for its default or a meritorious defense. Defendant contends, in response, that it did satisfy the requirements of CPLR 5015 (a) (1).[FN*]
At the outset, we note that the process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by service upon a [*2]general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate N.Y., Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac{**64 Misc 3d at 100} Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]). Thus, to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]).
As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed (see HSBC Bank USA, N.A. v Eliyahu, 170 AD3d 1130 [2019]; Indymac Fed. Bank FSB, 99 AD3d at 764; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Thus, defendant’s attempt to establish a lack of service was insufficient, as defendant failed to swear to specific facts to rebut those contained in the affidavit of the process server. Under the circumstances, defendant’s moving papers failed to establish a reasonable excuse for its default, let alone a triable issue as to whether service had ever been effectuated (see Bank of N.Y. v Samuels, 107 AD3d 653 [2013]; Reich v Redley, 96 AD3d 1038 [2012]; cf. New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322 [2014]).
Accordingly, the order is reversed and the branch of defendant’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the default judgment is denied.
Siegal, J.P., Pesce and Elliot, JJ., concur.
Footnotes
Footnote *:Defendant does not argue on appeal that the judgment should be vacated pursuant to CPLR 5015 (a) (4) and no longer seeks, in the alternative, a traverse hearing.
Reported in New York Official Reports at Sama Physical Therapy v MVAIC (2019 NY Slip Op 29218)
| Sama Physical Therapy v MVAIC |
| 2019 NY Slip Op 29218 [64 Misc 3d 988] |
| July 15, 2019 |
| Catapano-Fox, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, September 27, 2019 |
[*1]
| Sama Physical Therapy, as Assignee of Heather Thomas, Plaintiff, v MVAIC, Defendant. |
Civil Court of the City of New York, Queens County, July 15, 2019
The Rybak Firm, PLLC, Brooklyn (Oleg Rybak of counsel), for plaintiff.
Lawrence N. Rogak, LLC, Oceanside (Lawrence N. Rogak of counsel), and Jaime Gangemi, New York City, for defendant.
Plaintiff commenced this action against defendant to recover first party no-fault benefits on November 20, 2013, and issue was joined on December 6, 2013. The parties appeared for trial on June 13, 2019, and as this court is constrained to follow the order of the Honorable Jodi Orlow[FN*] dated December 16, 2014, the parties were directed to submit memoranda of law on the sole issue of whether the timing of defendant’s examination under oath requests was reasonable. The parties submitted memoranda of law on July 1, 2019, and upon review of the parties’ submissions, I render the following decision.
The parties stipulated to the following facts. This action stems from plaintiff providing no-fault medical benefits to assignor Heather Thomas, for personal injuries sustained in a motor vehicle accident. Plaintiff submitted two bills to defendant, one submitted in the amount of[*2]$677.60 and received by defendant on October 12, 2011, and a second bill in the amount of $246.40, received by defendant on November 11, 2011. Defendant sent to plaintiff’s assignor requests for an examination under oath mailed on December 9, 2013, and January 2014.{**64 Misc 3d at 990}
Plaintiff argues that defendant’s examination under oath requests were untimely as a matter of law, and therefore it is entitled to judgment for both bills. It argues that the case law supports the conclusion that defendant’s failure to timely request plaintiff’s assignor appear for an examination under oath precludes defendant from asserting this defense. Plaintiff claims that the no-fault regulations require defendant to make a request for an examination under oath within 15 business days of receipt of the bills, and since defendant’s requests were over two years later, they are untimely. Further, plaintiff argues that since the requests were untimely, defendant is precluded from asserting a defense of failure to appear at the examination under oath. Finally, as defendant failed to pay or timely deny plaintiff’s bills, plaintiff argues it is entitled to judgment in the amount of $924, with statutory interest and fees.
Defendant argues that plaintiff is not entitled to judgment because plaintiff’s assignor failed to appear at an examination under oath, requested by defendant because there was evidence that plaintiff’s assignor was not a qualified person under Insurance Law article 52. It argues that while under the no-fault regulations a request for an examination under oath must be sent within 15 days from the date of receipt of the bill, there is an exception for defenses premised on lack of coverage. Defendant argues that a similar exception exists where defendant believes that the applicant for MVAIC coverage is not a qualified person and therefore would not be covered under MVAIC guidelines, and that this defense can be raised at any time. Defendant admits that the requests for examinations under oath were made in excess of two years from receiving the bills but argues that it is irrelevant because its requests were based upon the MVAIC qualification process, and not the no-fault verification procedures. Therefore, defendant argues that since plaintiff’s assignor failed to appear for the examinations under oath, the requests for which were properly mailed to her, judgment must be awarded for defendant and dismissal of plaintiff’s complaint is warranted.
Article 51 of the Insurance Law, commonly referred to as the No-Fault Law, was enacted by the legislature to correct certain maladies recognized under the common-law tort system of compensating automobile accident victims. (Licari v Elliott, 57 {**64 Misc 3d at 991}NY2d 230 [1982].) The purpose of the No-Fault Law is to assure claimants of expeditious compensation for injuries sustained in a motor vehicle accident by ensuring prompt payment of first party benefits regardless of fault. (Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]; see also Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C., 137 AD3d 1270 [2d Dept 2016].) Under the strict time frames of the no-fault regulations which emphasize the great convenience of “prompt uncontested, first-party insurance benefits,” an insurer may be precluded from untimely raising a defense, resulting in payment by the insurer of a no-fault claim it might not have had to honor if the claim had been timely denied. (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015].)
Insurance Law § 5106 states that payment of no-fault benefits shall be made as the loss is incurred, and such benefits are overdue if not paid within 30 days from the date the claimant supplies proof of the fact and the loss sustained. Pursuant to 11 NYCRR 65-3.5, an insurer shall forward verification forms to the claimant within 10 days from the date of receipt of the application for no-fault benefits, and any additional verification forms must be [*3]sent to the claimant within 15 days of receiving the initial verification forms.
Insurance Law § 5221 (b) states that defendant MVAIC shall provide for the payment of first party benefits to a qualified person for basic economic loss arising out of the use or operation of an uninsured motor vehicle. Further, Insurance Law § 5221 (b) (6) states that “[i]f a controversy arises between the corporation and an insurer concerning the obligation to pay first party benefits, payment of first party benefits by the corporation shall not be stayed pending resolution of the controversy.”
It is undisputed that defendant’s requests for examinations under oath were made outside of the 15-day time frame requirement of the No-Fault Law. (See 11 NYCRR 65-3.5 [b].) Therefore, the issues presented are whether defendant MVAIC is subject to the no-fault requirements, and if so, whether there is an exception to the 15-day rule when MVAIC asserted a defense of no coverage due to the injured party not being a “qualified person.”
The legislature has made it clear that MVAIC is subject to the same requirements under the no-fault regulations as insurers. (Insurance Law § 5221 [b] [3].) While it is true at the commencement{**64 Misc 3d at 992} of the No-Fault Law, MVAIC was not subject to its requirements, this created an imbalance and unfairness to injured parties, and therefore the legislature amended the Insurance Law to specifically hold MVAIC subject to the same guidelines as other insurance companies. (See Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509 [2d Dept 1983].) The Appellate Division has further determined that defendant MVAIC maintains the same rights and obligations which are applicable to an insurer subject to Insurance Law article 51. (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2d Dept 2004], lv denied 4 NY3d 705 [2005].)
A review of the relevant law leads to the ultimate conclusion that MVAIC’s defense that the injured party is not a “qualified person” is subject to preclusion if not presented in a timely denial or if not investigated through timely verification requests, including requests for an examination under oath. (See T & S Med. Supply Corp. v MVAIC, 63 Misc 3d 150[A], 2019 NY Slip Op 50737[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists, May 10, 2019]; Complete Med. Servs., P.C. v MVAIC, 20 Misc 3d 85 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Contrary to defendant’s position, the Appellate Division rejected the premise that the 30-day claim determination does not begin to run until after MVAIC is satisfied the assignor is a qualified covered person. (See id.) Pursuant to New York Hosp. Med. Ctr., the appellate courts have consistently found that defendant’s obligations under the No-Fault Law do not begin only upon the qualification of the injured party as a covered person. (See 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]; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].)
As a result of New York Hosp. Med. Ctr. and its progeny, it can be held that a determination that the injured party is not a qualified person is a defense subject to preclusion, and not a condition precedent to establishing a valid claim. (See T & S.) Unlike the defense of no coverage, determining whether the injured party is a “qualified person” is not a condition precedent to coverage, and must be presented as an affirmative defense and is subject to preclusion. While defendant correctly points out that lack of coverage can be based upon failure of the injured party to file an accident report within 24 hours of the occurrence, the lack of coverage exception to the no-fault{**64 Misc 3d at 993} time frames cannot be based upon MVAIC’s investigation as to whether an individual is a “qualified person.” (See Meridian Health Acupuncture, P.C. v MVAIC, 22 Misc 3d 141[A], 2009 NY Slip Op 50440[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005].) This time frame exception for failure to timely file [*4]an accident report is consistent with Insurance Law § 5208, which clearly states that filing an accident report is a condition precedent to the right to apply for payment from MVAIC. However, even an expansive reading of the no-fault regulations and MVAIC guidelines cannot lead one to determine that the issue of “qualified persons” is not subject to preclusion under the relevant statutory and case law.
It is instructive to review the Court of Appeals decision in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) in analyzing when a defendant insurance company can deny a claim outside of the strict no-fault timelines. In Chubb, the Court of Appeals held that an insurer may assert a lack of coverage defense at any time premised on the fact or founded belief that the alleged injury does not arise out of an insured incident, but a defense based on a breach of a policy condition must be timely asserted or can be subject to preclusion. (Chubb at 199.)
Here, defendant MVAIC is not asserting that the injuries claimed did not arise out of a covered accident, but that the injured party may not be a “qualified person” under MVAIC guidelines. This defense is based upon a breach of a policy condition, and therefore is outside the strict exception permitted under Chubb and is subject to preclusion if not timely asserted. Since it is undisputed that the requests for examinations under oath were made over two years after receipt of the bills, defendant is precluded from asserting a lack of coverage based upon the injured party not being a qualified person. (See Acupuncture Now, P.C. v American Commerce Ins. Co., 61 Misc 3d 151[A], 2018 NY Slip Op 51768[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 49 Misc 3d 145[A], 2015 NY Slip Op 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)
Defendant’s reliance on Canty v Motor Veh. Acc. Indem. Corp. (95 AD2d 509 [2d Dept 1983]) to support its claim that it is not subject to the time frames when determining if an injured party{**64 Misc 3d at 994} is a qualified person is misplaced. In Canty, the Appellate Division discussed the statutory requirements to determine whether an injured party is a “qualified person” but did not discuss whether MVAIC’s investigation is an exception to the no-fault time frame. Rather, the Court in Canty clearly stated that MVAIC is under the same obligation to pay no-fault benefits to qualified persons to the same extent as if an insurance policy providing no-fault benefits was in effect. (Id. at 511.) Therefore, it is illogical to assume that MVAIC’s investigation into determining whether a party is a “qualified person” is a unique exception to the no-fault statutory time frames, but the same investigation performed by insurance carriers to determine if an individual was a “qualified person” is subject to the time frames. There are numerous cases, many cited by plaintiff, in which the courts have precluded insurance carriers from asserting a defense based upon the failure to timely seek verification or requests for examinations under oath. (See LMS Acupuncture, P.C. v Titan Ins. Co., 57 Misc 3d 132[A], 2017 NY Slip Op 51229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; A.C. Med., P.C. v Ameriprise Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51787[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016].) Therefore, it is only logical and proper to assume that MVAIC is not given greater latitude in determining whether an injured party is a “qualified person” than other insurance carriers and would thereby be required to comport with the time frames demanded under the no-fault statutory regulations.
Accordingly, I find that defendant failed to pay or timely deny plaintiff’s claims, and therefore plaintiff is entitled to judgment in its favor in the amount of $924 with statutory interest and fees.
Footnote *:The parties appeared before Judge Orlow for a motion and cross motion for summary judgment, and an order was issued on December 16, 2014, in which it was determined that both parties established their prima facie burdens and “the sole question for trial is whether the timing of the EUO requests was reasonable given that MVAIC’s verification requests were mailed in October and November 2011 but the EUO requests were mailed in December 2013 and January 2014.” It is assumed that the decision incorrectly states the MVAIC verification requests were mailed in October and November, as it is stipulated between the parties that plaintiff mailed the bills in October and November, and defendant mailed the EUO verification requests in December and January. Nevertheless, a trial was held before Judge Orlow on July 5, 2016, where the sole issue presented was whether the assignor was a qualified person under Insurance Law article 52. A notice of appeal was filed, and prior to it being perfected, Judge Orlow sua sponte recalled and set aside the trial decision and judgment and ordered a new trial.Kanter Physical Medicine & Rehab, P.C., GEICO Ins. Co. (2019 NY Slip Op 51175(U))
Reported in New York Official Reports at Kanter Physical Medicine & Rehab, P.C., GEICO Ins. Co. (2019 NY Slip Op 51175(U))
| Kanter Physical Medicine & Rehab, P.C. v GEICO Ins. Co. |
| 2019 NY Slip Op 51175(U) [64 Misc 3d 138(A)] |
| Decided on July 12, 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 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2018-394 Q C
against
GEICO Insurance Company, Respondent.
Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 7, 2017. The order denied a petition to vacate a master arbitrator’s award dated October 16, 2016 in a proceeding pursuant to CPLR article 75.
ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated October 16, 2016, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. The Civil Court denied the petition.
Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).
We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51174(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO Insurance, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Albright Whiting of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 21, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 11, 2017, and, upon reargument, vacated the order entered May 11, 2017 and denied defendant’s motion.
ORDERED that the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 11, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 21, 2017 granting plaintiff’s motion.
For the reasons stated in Faith Acupuncture, P.C., as Assignee of Igor Shkundin, v GEICO Ins. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-302 K C], decided herewith), the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Faith Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51173(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO Insurance, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Albright Whiting of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 1, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 9, 2017, and, upon reargument, vacated the order entered May 9, 2017 and denied defendant’s motion.
ORDERED that the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 9, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 1, 2017 granting plaintiff’s motion.
The Civil Court correctly found in its May 9, 2017 order that plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse (see Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Pro Health Acupuncture, P.C. v GEICO Ins., 63 Misc 3d 136[A], 2019 NY Slip Op 50501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order entered November 1, 2017 is modified by providing that, upon reargument, the order entered May 9, 2017 granting defendant’s motion to dismiss the complaint [*2]pursuant to CPLR 3216 is adhered to.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51172(U))
| Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. |
| 2019 NY Slip Op 51172(U) [64 Misc 3d 138(A)] |
| Decided on July 12, 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 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-2258 K C
against
USAA Casualty Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff’s “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.
ORDERED that the order is affirmed, without costs.
Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s “cross” motion.
For the reasons stated in Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. ( Misc 3d , 2019 NY Slip Op [appeal No. 2017-2251 K C], decided herewith), the order is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Jamaica Dedicated Med. Care, P.C. v USAA Cas. Ins. Co. (2019 NY Slip Op 51171(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
USAA Casualty Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Anita Nissan Yehuda and Joseph Schwarzenberg of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 1, 2016. The order granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), and denied plaintiff’s “cross” motion, pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the service on December 31, 2015 timely.
ORDERED that the order is affirmed, without costs.
Plaintiff, a provider, commenced this action to recover assigned first-party no-fault benefits by filing a summons and complaint in the Civil Court on July 14, 2015 (see CCA 400). However, plaintiff did not serve these documents on defendant until December 31, 2015, which was beyond the 120-day time period allotted by CPLR 306-b (see CCA 403). By notice of motion returnable on February 25, 2016, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8), and, by notice of motion returnable on December 1, 2016, plaintiff “cross-moved,” pursuant to CPLR 306-b, for an extension of time to serve the summons and complaint upon defendant and to deem the December 31, 2015 service timely. By order dated December 1, 2016, the Civil Court granted defendant’s motion and denied plaintiff’s “cross” motion.
Pursuant to CPLR 306-b, service of a summons and complaint “shall be made within one hundred twenty days after the commencement of the action or proceeding” and “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (see also Leader v Maroney, Ponzini & Spencer, [*2]97 NY2d 95, 104-105 [2001]). ” ‘Good cause’ and ‘interest of justice’ are two separate and independent statutory standards” (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2009]; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). “An extension of time for service is a matter within the court’s discretion” (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 101).
In the case at bar, it is uncontroverted that plaintiff did not serve defendant with the summons and complaint until December 31, 2015, which was 47 days after the expiration of the CPLR 306-b 120-day time period for service. Plaintiff blames law office failure for this delay; however, plaintiff did not file its “cross” motion for an extension of the time to effectuate service of the summons and complaint upon defendant until about nine months after defendant had moved for dismissal of the complaint on the ground that the time for service had expired. Also, it is uncontroverted that plaintiff effectuated service on defendant after the six-year statute of limitations (see CPLR 213) had expired. In addition, plaintiff made no arguments, and annexed no documentation, regarding the underlying merit of its action.
Since plaintiff’s law office failure argument does not amount to a showing of good cause (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106), we next review plaintiff’s cross motion under an interest of justice standard (id.). Upon a careful analysis of the aforementioned factual setting of the case, we find that the Civil Court properly granted defendant’s motion to dismiss the complaint and denied plaintiff’s “cross” motion.
Accordingly, the order is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Masigla v Nationwide Ins. (2019 NY Slip Op 51170(U))
| Masigla v Nationwide Ins. |
| 2019 NY Slip Op 51170(U) [64 Misc 3d 138(A)] |
| Decided on July 12, 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 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2017-2211 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. McDonald & Safranek (Kevon Lewis of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 7, 2016. The judgment, 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, a nonjury trial was held, limited to the issue of whether verification that had been requested by defendant remained outstanding. The Civil Court dismissed the complaint, stating on the record that the testimony proffered by defendant’s witness was credible.
In 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 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 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). As the record supports the Civil Court’s determination, which was based upon its assessment of the credibility of the only witness to testify, we find no basis to disturb the Civil Court’s finding.
Accordingly, the judgment is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Masigla v Windhaven Ins. Co. (2019 NY Slip Op 51169(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Windhaven Insurance Company, Appellant.
Lawrence N. Rogak, LLP (Lawrence N. Rogak 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 (Harriet L. Thompson, J.), dated May 10, 2017. The order denied 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 in the amount of $2,738.52, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
On appeal, defendant first argues that the Civil Court lacked “subject matter jurisdiction” because defendant does no business in New York. As the complaint seeks to recover a sum of less than $25,000, this action falls within the subject matter jurisdiction of the Civil Court (see CCA 202).
As to defendant’s second argument, there is no need to consider whether defendant’s claimed lack of contacts with New York might raise an issue of personal, rather than subject matter, jurisdiction, since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that [*2]the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at 649; Osserman v Osserman, 92 AD2d 932 [1983]).
Finally, even if, as defendant claims, it is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant did not demonstrate that its policy did not provide such coverage, and, therefore, defendant did not demonstrate its entitlement to judgment as a matter of law.
Accordingly, the order is affirmed.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Blackman v Hereford Ins. Co. (2019 NY Slip Op 51166(U))
| Blackman v Hereford Ins. Co. |
| 2019 NY Slip Op 51166(U) [64 Misc 3d 137(A)] |
| Decided on July 12, 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 12, 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
2017-1226 K C
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Andrew Schiavone 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 21, 2016. 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 modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and denied plaintiff’s cross motion for summary judgment.
Plaintiff correctly argues that the affidavit it submitted in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and thus that there is a triable issue of fact as to whether the verification had been provided.
In light of the triable issue of fact, plaintiff’s cross motion was properly denied.
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019