Decided on March 23, 2016

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

Decided on March 23, 2016

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

CV-027848-14/KI
Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion: Papers Numbered

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2-3

Replying Affidavits 4-5

Exhibits

Other

Upon review of the foregoing papers, defendant’s motion for summary judgment, and plaintiff’s cross-motion for summary judgment are decided as follows:

In this action to recover assigned first-party no-fault benefits, defendant moves for summary judgment to dismiss plaintiff’s claim on the basis that defendant is not the proper insurer. Although defendant states it is the insurer for a proper workers’ compensation claim, it claims it did not insure the assignor’s employer for no-fault claims. However, in its original motion, defendant submits only the affidavit of its attorney, which is not evidence and does not serve to establish its assertions for summary judgment (Cullin v Spiess, 122 AD3d 792, 793 [2d Dept 2014]). In its reply papers, defendant submits an affidavit from an employee who claimed to have reviewed the file and determined that defendant was not the proper insurer. However, the court cannot consider new facts submitted on reply (Rengifo v City of New York, 7 AD3d 773, 773 [2d Dept 2004]). Furthermore, defendant fails to attach the insurance policy, rendering its employee’s statements as to the alleged contents of the policy hearsay (Nassau Ins. Co. v Manzione, 112 AD2d 408, 409 [2d Dept 1985] [best evidence of policy language is the policy itself]). Moreover, the police report defendant offers is uncertified, and is therefore inadmissible (Cheul Soo Kang v Violante, 60 AD3d 991, 991 [2d Dept 2009]). Accordingly, defendant’s [*2]motion for summary judgment is denied.

Plaintiff also moves for summary judgment and to compel discovery. However, plaintiff cannot assert that it is entitled to summary judgment if it also contends that discovery is not complete and that the incomplete discovery is needed (see CPLR 3212[f]; and see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], at *3 [App Term, 2d , 11th and 13th Jud Dists 2010]; Five Boro Psychological Servs., P.C. v Autoone Ins. Co., 27 Misc 3d 89, 90-91 [App Term, 2d , 11th and 13th Jud Dists 2010]). Accordingly, plaintiff’s motion for summary judgment is denied without prejudice. As defendant does not provide this court with any objections to plaintiff’s discovery requests, defendant must serve all nonprivileged information and documents responsive to plaintiff’s discovery requests on or before May 18, 2016 (All Boro Psychological Servs., P.C. v Allstate Ins. Co., 40 Misc 3d 131[A], at *2-3 [App Term, 2d , 11th and 13th 2013]).

For the reasons stated above, defendant’s motion for summary judgment is denied, plaintiff’s cross-motion for summary judgment is denied, and plaintiff’s motion to compel discovery is granted, to the extent described above.

This constitutes the decision and order of the court.

Date: March 22, 2016
DEVIN P. COHEN
Acting Justice, Supreme Court

Decided on March 22, 2016

Civil Court of the City of New York, Kings County

Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered March 30, 2015, which, upon reargument, adhered to a prior order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment on its claims in the amount of $2,005.25.

Per Curiam.

Order (Gerald Lebovits, J.), entered March 30, 2015, insofar as appealed from, reversed, without costs, defendant’s motion for summary judgment denied, complaint reinstated, and plaintiff’s cross motion for summary judgment in the principal amount of $2,005.25 granted.

While the motion court purported to deny plaintiff’s motion for reargument, the merits of the motion were addressed and the court, in effect, granted reargument, even though it ultimately adhered to its original determination (see Jackson v Leung, 99 AD3d 489, 490 [2012]; Matter of State Farm Mut. Auto Ins. Co. v King, 304 AD2d 390 [2003]). Thus, the March 30, 2015 order is appealable.

Turning to the merits, plaintiff established prima facie that its no-fault claims in the amount of $2,005.25 were overdue, since they were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins, Co., 25 NY3d 498, 507 [2015]). In opposition, defendant failed to raise a triable issue as to whether it had timely denied the claims (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]). Contrary to Civil Court’s determination, defendant’s letter stating, in essence, that payment was delayed pending independent medical examinations (IMEs) of plaintiff’s assignor did not serve to toll the 30-day statutory period (id.). Nor has defendant otherwise raised a triable issue as to whether the 30-day period was tolled by verification requests that preceded its receipt of the underlying claims (see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 164 [2013]).

Inasmuch as the claims at issue were not timely denied, defendant is precluded from [*2]asserting its defense of lack of medical necessity (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 30, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the automobile insurance policy in question had been issued in Florida, and that, based upon a conflict-of-law analysis, Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. Plaintiff cross-moved for summary judgment. In an order entered July 30, 2014, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion, based upon defendant’s failure to timely deny plaintiff’s claim.

On appeal, defendant contends that it made a prima facie showing of its defense of rescission of the underlying insurance policy in accordance with Florida law and that its motion for summary judgment dismissing the complaint should have been granted.

The vehicle involved in the accident at issue, which occurred in New York, was being driven by plaintiff’s assignor, who was the policy holder. At the time of the accident, the vehicle was insured by defendant under a Florida automobile insurance policy. After defendant’s investigation into the accident revealed that, at the time the insured applied for motor vehicle insurance, she did not reside at the Florida address listed on the insurance application and that the vehicle was not garaged at that Florida address, defendant rescinded the policy, ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive cancellation of an insurance contract if there has been a material misrepresentation in an application for insurance.

In order to show that it properly voided a motor vehicle insurance policy ab initio, in accordance with Florida law, an insurer must demonstrate that it gave notice of the rescission to the insured and that it returned or tendered all premiums paid within a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant demonstrated, through the supporting affidavit of its litigation specialist and accompanying documents, that it had complied with the foregoing requirements, defendant’s prima facie entitlement to summary judgment was established (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive [*2]rescission of the policy in accordance with Florida law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, it was error for the Civil Court to deny defendant’s motion and to grant plaintiff’s cross motion.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered April 30, 2014. The judgment, entered upon a decision of the same court dated December 31, 2012, after a nonjury trial, awarded plaintiff the principal sum of $2,160.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated December 31, 2012 is deemed a premature notice of appeal from the judgment entered April 30, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits for acupuncture services rendered to its assignor, the sole issue was the medical necessity of acupuncture treatments rendered by plaintiff to its assignor during the spring of 2008. Defendant’s expert medical witness, Dr. Chiu, who had performed an independent medical examination (IME) of plaintiff’s assignor on July 17, 2007, testified that, at the time of the IME, the assignor’s injuries had resolved and that there was no further need for acupuncture treatment. Dr. Friedman, who had commenced treatment of the assignor in June 2007, testified that he was of the opinion that the assignor’s injuries had not resolved at the time of the IME and that further acupuncture treatment was necessary. He had examined and treated the assignor after the IME had been conducted and had concluded that the assignor’s condition was sometimes better and sometimes worse, but that the assignor still often suffered from pain arising from his injuries. It was his opinion that the assignor’s injuries were caused by the accident, but that the injuries were exacerbated by the nature of his job as a parking valet, which “impeded . . . the progress of the treatment.” In a decision after trial, from which defendant appeals, the Civil Court concluded that the acupuncture services in question were medically necessary. A judgment in favor of plaintiff was subsequently entered, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

It is undisputed that defendant denied plaintiff’s claims solely on the basis of Dr. Chui’s IME, which concluded that the services rendered were not medically necessary, and not on the basis of the assignor’s possible eligibility for workers’ compensation benefits, which is a defense subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]). Since defendant did not deny plaintiff’s claims based upon the assignor’s possible eligibility for workers’ compensation benefits, defendant is precluded from raising that defense.

With respect to defendant’s contention that it demonstrated at trial that the acupuncture services in question lacked medical necessity, we find that, after defendant made its showing that the services in question were not medically necessary, plaintiff met its burden of demonstrating, by a preponderance of the credible evidence, that the services at issue were, in fact, medically necessary (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). There is, therefore, no basis to disturb the Civil Court’s determination in favor of plaintiff.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

Decided on March 18, 2016

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

Decided on March 17, 2016

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

Decided on March 17, 2016

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