Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-167 Q C

Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. 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 cross-moved for summary judgment dismissing the complaint. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), and since plaintiff’s remaining contention lacks merit, the order is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-156 Q C

Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 2, 2014. 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 cross-moved for summary judgment dismissing the complaint. By order entered December 2, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v Country-Wide Ins. Co. (__ Misc 3d___, 2017 NY Slip Op ____[appeal No. 2015-155 Q C], decided herewith), the order is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-155 Q C

Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. 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 cross-moved for summary judgment dismissing the complaint. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff’s remaining contentions regarding the [*2]verification requested by defendant lack merit, the order is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-151 Q C

Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 1, 2014. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.

Contrary to plaintiff’s contention, defendant established that, after receiving the $290.64 claim at issue, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior [*2]to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Plaintiff’s remaining contentions regarding the verification requested by defendant lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2794 RI C

Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant. Lana Sukhman, Esq., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 2, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,119.44.

ORDERED that, on the court’s own motion, the notice of appeal from a decision of that court dated June 28, 2013 is deemed a premature notice of appeal from the judgment entered December 2, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court determined that defendant had demonstrated, prima facie, through the presentation of credible expert witness testimony, that the medical services at issue had not been medically necessary and that plaintiff had not rebutted defendant’s case. Notwithstanding the foregoing, the Civil Court awarded judgment to plaintiff in the principal sum of $3,119.44. In light of the contradiction between the Civil Court’s findings and its award, a new trial is warranted.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2082 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Moira Doherty, P.C. (Janice P. Rosen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 12, 2014. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations (IMEs).

Plaintiff correctly argues that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff’s assignor for IMEs had been properly mailed (see St. Vincent’s Hosp. [*2]of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., 53 Misc 3d 134[A], 2016 NY Slip Op 51423[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend IMEs is denied.

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

[*1]

Bruno, Gerbino & Soriano, LLP, Melville (Nathan M. Shapiro of counsel), for defendant-appellant.

Cherundolo Law Firm, PLLC, Syracuse (John C. Cherundolo of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), dated February 15, 2017. The order, among other things, denied the motion of defendant Motor Vehicle Accident Indemnification Corporation seeking, in effect, a declaration that plaintiff is not entitled to no-fault insurance benefits from it.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking, inter alia, a declaration that Motor Vehicle Accident Indemnification Corporation (defendant) is required to provide him with no-fault insurance benefits. Defendant now appeals from an order that, inter alia, denied its motion for summary judgment seeking, in effect, a declaration that plaintiff is not entitled to such benefits from defendant (see e.g. Leo v New York Cent. Mut. Fire Ins. Co., 136 AD3d 1333, 1333 [4th Dept 2016], lv denied 28 NY3d 902 [2016]; Ward v County of Allegany, 34 AD3d 1288, 1289 [4th Dept 2006]). We affirm.

Contrary to defendant’s contention, it failed to meet its burden on the motion of establishing as a matter of law that plaintiff was not entitled to no-fault insurance benefits. Insofar as relevant here, the Insurance Law provides that no-fault benefits are to be given “to a qualified person for basic economic loss arising out of the use or operation . . . of an uninsured motor vehicle” (Insurance Law § 5221 [b] [1]) and, in pertinent part, the statute defines a qualified person as “a resident of this state, other than an insured or the owner of an uninsured motor vehicle” (§ 5202 [b] [i]). Vehicle and Traffic Law § 128 defines an owner as, inter alia, “[a] person . . . having the property in or title to a vehicle or vessel.” We have previously stated that, “[g]enerally, ‘ownership is in the registered owner of the vehicle or one holding the documents of title[,] but a party may rebut the inference that arises from these circumstances’ ” (Martin v Lancer Ins. Co., 133 AD3d 1219, 1220 [4th Dept 2015]).

Here, in support of its motion, defendant submitted plaintiff’s testimony that he was the co-owner of the vehicle, and that he and his fiancée paid for the vehicle, its maintenance, and a Florida insurance policy that did not cover plaintiff. Nevertheless, defendant also submitted the registration, title, and insurance documents for the vehicle, all of which list plaintiff’s father as the owner. Consequently, Supreme Court properly determined that, inasmuch as “there is conflicting evidence of ownership, the issue must be resolved by a trier of fact” (id.). Because defendant did not meet its initial burden on the motion for summary judgment, “the burden never shifted to [plaintiff], and denial of the motion was required ‘regardless of the sufficiency of the opposing papers’ ” (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Smith, J.P., Carni, Curran and Winslow, JJ.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1527 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Moira Doherty, P.C. (Janice P. Rosen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 22, 2015. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Plaintiff correctly argues on appeal that the papers submitted in support of defendant’s cross motion failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.

However, contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the papers submitted in support of its motion [*2]failed to establish either that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-425 K C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of James F. Sullivan (Gia Tuttolomondo, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 3, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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’s assignor had failed to appear at duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that defendant’s denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment.

Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.

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

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1846 Q C

Amos Weinberg, Esq., for appellants. Abrams, Cohen & Associates, P.C. (Frank Piccininni, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 28, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that the action is premature because plaintiffs had failed to provide requested verification.

In support of plaintiffs’ motion for summary judgment and in opposition to defendant’s cross motion, plaintiffs submitted affirmations from plaintiffs’ counsel and annexed purported verification responses which expressly stated that plaintiffs were not providing responses to some of defendant’s verification requests. As a result, contrary to plaintiffs’ contention, the record demonstrates that defendant had not received all of the requested verification and, thus, that the action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the order, insofar as appealed from, is affirmed.

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