Decided on May 25, 2018

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

Decided on May 25, 2018

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

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. Kopelevich & Feldsherova, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 17, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a bill for services rendered on August 23, 2012 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. The Civil Court denied the motion but held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denials.

With respect to the bill for services rendered on August 23, 2012, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted [*2]by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on that claim, the Civil Court should have granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon this claim.

With respect to the remaining bills, plaintiff correctly argues that defendant failed to establish that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the remainder of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on a bill for services rendered on August 23, 2012 is granted.

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

Decided on May 25, 2018

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

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell, Friedman & Associates (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated July 12, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action by an attorney-verified complaint to recover assigned first-party no-fault benefits in March 2011. Defendant interposed an answer on June 23, 2011. On December 1, 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On May 3, 2017, defendant moved pursuant to CPLR 3216 to dismiss the complaint as it had not been served with a notice of trial. On May 5, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that the “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated July 12, 2017, the District Court denied the motion.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, plaintiff’s bare statement in its attorney’s affirmation, after a two-month delay in responding to defendant’s 90-day notice, that its “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,” failed to establish a justifiable excuse for its delay. Additionally, plaintiff’s attorney asserted no meritorious cause of action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

Decided on May 18, 2018

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

Decided on May 18, 2018

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

Decided on May 18, 2018

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

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer 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 July 14, 2015. 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, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $883.80 is granted, and the matter is remitted to the Civil Court for a new determination of the remaining branches of defendant’s motion in accordance herewith.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on various grounds, including plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), material misrepresentation, and that plaintiff was seeking to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. By order entered July 14, 2015, the Civil Court found, in effect pursuant to CPLR 3212 (g), that defendant had established the assignor’s failure to appear for the IMEs and, in effect, that defendant had established the timely and proper mailing of its denials, and held that the only remaining issues for trial were plaintiff’s prima facie case and whether defendant had mailed the IME scheduling letters to plaintiff’s assignor. Defendant appeals, arguing that it is entitled to summary judgment [*2]dismissing the complaint based upon plaintiff’s assignor’s failure to appear for IMEs.

Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). As a result, the branches of defendant’s motion seeking to dismiss those claims must be remitted to the Civil Court for a new determination based upon the remaining grounds raised in defendant’s summary judgment motion, which grounds were not addressed by the Civil Court.

However, contrary to plaintiff’s argument as to the remaining claim, for $883.80, defendant’s proof was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, defendant’s proof sufficiently established that it had properly mailed the IME scheduling letters to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff has not challenged the Civil Court’s determination that defendant is otherwise entitled to judgment on this claim, the branch of defendant’s motion seeking summary judgment dismissing this claim should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $883.80 is granted, and the matter is remitted to the Civil Court for a new determination of the remaining branches of defendant’s motion in accordance herewith.

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

Decided on May 18, 2018

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