Reported in New York Official Reports at Promed Durable Equip., Inc. v MVAIC (2019 NY Slip Op 51152(U))
[*1]| Promed Durable Equip., Inc. v MVAIC |
| 2019 NY Slip Op 51152(U) [64 Misc 3d 136(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-281 Q C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from a decision of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated May 14, 2015, and from a judgment of that court entered September 30, 2015. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $2,655.
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 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 $2,655.
The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle’s owner (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). As a result, plaintiff’s claim is premature (see Matter of Acosta-Collado, 103 AD3d 714; Hauswirth, 244 AD2d 528; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v Motor Veh. Acc. Indem. Corp., 287 AD2d 510 [2001]; Matter of Troches v Motor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991]).
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: July 12, 2019TAM Med. Supply Corp. v MVAIC (2019 NY Slip Op 51155(U))
Reported in New York Official Reports at TAM Med. Supply Corp. v MVAIC (2019 NY Slip Op 51155(U))
[*1]| TAM Med. Supply Corp. v MVAIC |
| 2019 NY Slip Op 51155(U) [64 Misc 3d 136(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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-581 K C
against
MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin 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 22, 2016. The judgment, entered pursuant to a decision of the same court dated June 12, 2016, after a nonjury trial, dismissed the complaint.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated June 12, 2016 is deemed a premature notice of appeal from the judgment entered November 22, 2016 (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, the sole issue for trial (see CPLR 3212 [g]) was whether the verification requested by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) had been provided. The only witness at trial was an employee of MVAIC, who testified that MVAIC had not received the requested verification. The Civil Court found the testimony to be credible and entered judgment dismissing the complaint.
Plaintiff’s sole argument on appeal is that the testimony by MVAIC’s witness as to whether MVAIC received the requested verification was hearsay because the witness began working for MVAIC more than one year after the accident. Assuming that plaintiff preserved this issue for appellate review, we find that the testimony was sufficient to establish that the verification which MVAIC had requested had not been received by MVAIC.
The witness testified that MVAIC’s practices and procedures included the maintaining of a manual which set forth, among other things, MVAIC’s practices and procedures regarding the receipt of mail, as well as enumerating when, and how, MVAIC’s practices and procedures were [*2]changed and stating the period of time during which each set of practices and procedures were in effect. The witness further testified that, as part of his training, he relied upon MVAIC’s manual and that the practices and procedures utilized by MVAIC when his employment began were identical to the practices and procedures in effect when the accident occurred and that they did not change prior to the start of his employment. Furthermore, in accordance with MVAIC’s practices and procedures, he searched MVAIC’s records and the requested verification had not been received by MVAIC. In light of the foregoing, the judgment is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019Arguelles, M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2019 NY Slip Op 51156(U))
Reported in New York Official Reports at Arguelles, M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2019 NY Slip Op 51156(U))
[*1]| Arguelles, M.D., P.C. v Motor Veh. Acc. Indem. Corp. |
| 2019 NY Slip Op 51156(U) [64 Misc 3d 136(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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-597 K C
against
Motor Vehicle Accident Indemnification Corporation, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 10, 2016. The judgment, upon a decision of that court dated September 4, 2014, after a nonjury trial, dismissed the complaint.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 4, 2014 is deemed a premature notice of appeal from the judgment entered February 10, 2016 (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, plaintiff appeals from a judgment of the Civil Court, after a nonjury trial, which dismissed the complaint.
The only witness at trial was an employee of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC), who testified that plaintiff’s assignor was not a covered person because plaintiff had not established that plaintiff’s remedies against the owner of the vehicle had been exhausted. Specifically, plaintiff failed to establish lack of coverage of the vehicle in which plaintiff’s assignor was a passenger at the time of the accident.
Plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op [*2]52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019Natural Therapy Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51159(U))
Reported in New York Official Reports at Natural Therapy Acupuncture, P.C. v MVAIC (2019 NY Slip Op 51159(U))
[*1]| Natural Therapy Acupuncture, P.C. v MVAIC |
| 2019 NY Slip Op 51159(U) [64 Misc 3d 136(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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-742 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 (Devin P. Cohen, J.), entered December 15, 2016. 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 moved for summary judgment, and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-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. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
MVAIC’s cross-moving 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]; Delta Diagnostic Radiology, P.C. v MVAIC, 44 Misc 3d 138[A], 2014 NY Slip Op 51261[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). 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], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019Lida’s Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51167(U))
Reported in New York Official Reports at Lida’s Med. Supply, Inc. v MVAIC (2019 NY Slip Op 51167(U))
[*1]| Lida’s Med. Supply, Inc. v MVAIC |
| 2019 NY Slip Op 51167(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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1522 K C
against
MVAIC, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. The Law Office of Jaime E. Gangemi (Jeffrey Kadushin of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered April 21, 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.
In order for a bicyclist who has allegedly been injured in a hit-and-run accident, such as plaintiff’s assignor herein, to be a “covered person” and obtain no-fault benefits from defendant Motor Vehicle Accident Indemnification Corporation, the person must have complied with all the applicable requirements of Insurance Law article 52 (see Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), including, but not limited to, the filing of an accident report within 24 hours of the occurrence (Insurance Law § 5208 [a] [2] [A]), unless a showing is made that it was “not reasonably possible [for the injured person] to make such a report or that it was made as soon as was reasonably possible” (Insurance Law § 5208 [a] [2] [B]; Canty v Motor Veh. Acc. Indem. Corp., 95 AD2d 509, 511 [1983]). In the instant case, defendant’s claims examiner stated in his affidavit in support of defendant’s motion that, despite repeated requests for proof that plaintiff’s assignor had filed an accident report, plaintiff’s assignor never provided such proof. Plaintiff’s opposing papers are devoid of any indication that plaintiff’s assignor complied with the reporting [*2]requirement set forth in Insurance Law § 5208 (a) (2) (A). Nor does plaintiff make any showing that it “was not reasonably possible to make such a report” (Insurance Law § 5208 [a] [2] [B]). As a result, defendant was entitled to summary judgment dismissing the complaint (see Insurance Law § 5221 [b] [2]; Velen Med. Supply v MVAIC, 33 Misc 3d 135[A], 2011 NY Slip Op 52016[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 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]).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019Atlantic Chiropractic, P.C. v MVAIC (2019 NY Slip Op 51374(U))
Reported in New York Official Reports at Atlantic Chiropractic, P.C. v MVAIC (2019 NY Slip Op 51374(U))
[*1]| Atlantic Chiropractic, P.C. v MVAIC |
| 2019 NY Slip Op 51374(U) [64 Misc 3d 148(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
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1183 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered December 21, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,800.
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 $1,800.
Since plaintiff’s assignor was aware of the identity of the owner of the vehicle which struck plaintiff’s assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR [*2]Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
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: July 12, 2019Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))
Reported in New York Official Reports at Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))
| Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. |
| 2019 NY Slip Op 51148(U) [64 Misc 3d 135(A)] |
| Decided on July 11, 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 11, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : THOMAS A. ADAMS, P.J., JERRY GARGUILO, ELIZABETH H. EMERSON, JJ
2018-444 S C
against
IDS Property & Casualty Insurance Company, Appellant.
Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Sanders Barshay Grossman, LLC (Steven J. Neuwirth of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated October 12, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without 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 appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.
Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) each of the examination under oath (EUO) scheduling letters by both first-class and certified mail, return receipt requested. While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient (see MML Med. Care, P.C. v Praetorian Ins. Co., 46 Misc 3d 127[A], 2014 NY Slip Op 51792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 11, 2019
Reported in New York Official Reports at City Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51102(U))
| City Chiropractic, P.C. v State Farm Ins. |
| 2019 NY Slip Op 51102(U) [64 Misc 3d 134(A)] |
| Decided on June 28, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through October 25, 2019; it will not be published in the printed Official Reports. |
Decided on June 28, 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
2017-1993 K C
against
State Farm Insurance, Appellant.
Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff 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 (Michael Gerstein, J.), entered July 28, 2017. The order, insofar as appealed from and as limited by the brief, 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 appeals, as limited by its brief, from so much of an order of the Civil Court entered July 28, 2017 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs).
The record indicates that, in response to defendant’s EUO requests, plaintiff sent letters essentially stating that it would not appear for the requested EUOs unless defendant set forth its reasons for requesting the EUOs. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, as it found that there was a triable issue of fact as to “whether Defendant’s request for EUO was made in good faith, under objective standards.”
“No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept [*2]No. 02-10-14 [October 2002]). The Department of Financial Services’[FN1] interpretation of the No-Fault Regulations is entitled to deference unless “irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]; see also Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Thus, defendant “was not required to provide the reason for its demand” either in its scheduling letters or, by extension, “in response to an objection from plaintiff” (Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 28, 2019
Footnotes
Footnote 1: In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services.”
Reported in New York Official Reports at Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hereford Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered March 16, 2017. The judgment, insofar as appealed from, after a nonjury trial, dismissed the second, third, fourth, sixth and eighth causes of action.
ORDERED that the judgment, insofar as appealed from, 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 whether the services at issue were medically necessary. The trial court entered into evidence the claim forms and denial of claim forms, and the parties stipulated to the expertise of defendant’s peer review doctor as a board certified internist. The doctor testified that the services provided by plaintiff lacked medical necessity. Plaintiff rested its case without calling any witnesses. Plaintiff appeals from so much of a judgment entered March 16, 2017 as dismissed the second, third, fourth, sixth and eighth causes of action.
Since defendant sufficiently rebutted the presumption of medical necessity (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (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]), we find no basis to disturb the Civil Court’s finding with respect thereto (see Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50937[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the judgment, insofar as appealed from, is affirmed.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 28, 2019
Reported in New York Official Reports at Valdan Acupuncture, P.C. v Nationwide Mut. Fire Ins. Co. (2019 NY Slip Op 51098(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Mutual Fire Ins. Co., Respondent.
Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. McDonald, Safranek & Turchetti (Kevon Lewis of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered April 21, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In October 2015, plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which had occurred on January 11, 2011. The injured party had assigned the no-fault benefits to plaintiff on September 21, 2011. Defendant moved for summary judgment dismissing the complaint or for an order staying the action, as defendant had commenced a declaratory judgment action in the Supreme Court, Onondaga County, against the assignor and numerous medical providers other than plaintiff herein, seeking a declaration that the accident in question was not a covered incident under the insurance policy. Plaintiff opposed the motion. In further support of the motion, defendant proffered an order of the Supreme Court, dated August 2, 2016, declaring that the insurer (defendant herein) is not required or obligated to provide no-fault benefits to the assignor (and numerous named providers, other than plaintiff) arising out of the January 11, 2011 accident, and defendant argued that, consequently, plaintiff’s action in the Civil Court is barred. Plaintiff appeals from an order of the Civil Court entered April 21, 2017 which granted defendant’s motion based upon the order in the declaratory judgment action and dismissed plaintiff’s complaint with prejudice.
“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., [*2]140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as the injured party’s assignment to plaintiff was made on September 21, 2011, after the commencement in August 2011 of the declaratory judgment action, plaintiff is deemed to be in privity with the assignor and “charged with notice that [its] rights to the assignment are subject to the competing claim” (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 487 [1979]). Consequently, in light of the Supreme Court’s order, the Civil Court properly granted defendant’s motion for summary judgment (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d 1).
Accordingly, the order is affirmed.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 28, 2019