Decided on March 11, 2016

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

Decided on March 11, 2016

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

Decided on March 11, 2016

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

Decided on March 11, 2016

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 31, 2012. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the third cause of action on the ground that defendant had never received the claim underlying that cause of action, and dismissing the remaining causes of action on the grounds that defendant had timely and properly denied the relevant claims based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs) and that the fees sought exceeded the amounts permitted by the workers’ compensation fee schedule. In addition, defendant alleged that the claim underlying the sixth cause of action had been untimely submitted. Plaintiff cross-moved for summary judgment. By order entered July 31, 2012, insofar as appealed from, the Civil Court denied defendant’s motion. While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations. Therefore, defendant failed to establish, with respect to the first, second, and fourth through seventh causes of action, its entitlement to judgment as a matter of law dismissing these claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

The affidavit of defendant’s no-fault litigation examiner established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim form underlying the sixth cause of action, which also denied the claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [*2][2001]). In light of the foregoing, contrary to defendant’s contention, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.

Although defendant also denied the claims underlying the first, second, and fourth through seventh causes of action based upon the workers’ compensation fee schedule, defendant failed to establish as a matter of law that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) or that there had been duplicate billing. Therefore, defendant was not entitled to summary judgment dismissing the first, second, and fourth through seventh causes of action on this ground.

To the extent defendant sought summary judgment dismissing the third cause of action on the ground that defendant had never received the claim form underlying this cause of action, defendant’s conclusory denial of receipt was insufficient to make a prima facie showing of defendant’s entitlement to summary judgment dismissing that cause of action (see e.g. Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

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

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

Decided on March 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered August 1, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

New Millennium Medical Imaging, P.C. (New Millennium) commenced this action against American Transit Ins. Co. (American Transit) to recover first-party no-fault benefits for medical services that had been provided to plaintiff’s assignor as a result of injuries, which, the complaint stated, had been sustained in an automobile accident that had occurred on March 17, 2012. Before New Millennium commenced this action, the insurer, American Transit, had commenced a declaratory judgment action in Supreme Court, New York County, against New Millennium and its assignor, Nicholas Toc, among others, alleging that the providers’ claims had been timely and properly denied on the ground that their assignor had failed to attend duly scheduled independent medical examinations (IMEs). After the providers had failed to appear in the Supreme Court action, American Transit moved in the Supreme Court for an order granting it leave to enter a default declaratory judgment, declaring that, because of the assignor’s nonappearances at the scheduled IMEs, New Millennium and the other providers were not entitled to no-fault coverage “for the motor vehicle accident that occurred on 4/2/2012.” The Supreme Court issued a declaratory judgment, dated September 11, 2013, declaring that American Transit had no duty to pay no-fault claims “with respect to the April 02, 2012 collision.”

Thereafter, American Transit moved in the Civil Court, pursuant to CPLR 3212, for summary judgment dismissing New Millennium’s complaint, contending that the action is barred by virtue of the declaratory judgment. New Millennium opposed the motion. The affirmation of American Transit’s counsel, and a letter submitted by the insurer as an exhibit to the motion, both referred to an accident that had occurred on March 17, 2012. By order entered August 1, 2014, the Civil Court denied American transit’s motion, finding that an issue of fact exists as to whether the Supreme Court judgment applies to the present litigation.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any [*2]material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Res judicata, or claim preclusion, may be invoked where a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Albanez v Charles, 134 AD3d 657 [2015]; Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, American Transit failed to establish its entitlement to summary judgment, because its own papers presented two different accident dates, March 17, 2012 and April 2, 2012. Thus, a question of fact exists as to whether plaintiff’s claim arose out of the same transaction as was in controversy in the Supreme Court litigation (see Schuylkill Fuel Corp., 250 NY at 306-307; Albanez, 134 AD3d 657; Eagle Surgical Supply, Inc., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U]). We decline to consider the assignment of benefits form which American Transit proffered to show the date of the accident at issue, as the assignment of benefits form was submitted for the first time in American Transit’s reply papers (see L’Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 [2013]; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]).

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 27, 2013. The order denied plaintiff’s motion to restore the action to the trial calendar.

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

This action by a provider to recover assigned first-party no-fault benefits was “marked off” the trial calendar on April 3, 2013. On April 8, 2013, plaintiff moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In an affirmation in support of the motion, plaintiff’s counsel stated that the case had been “marked off” when plaintiff’s witness was “unavailable and unable to appear” for trial. Counsel further stated that “the action is ready to resume trial.” In opposition to the motion, defendant’s attorney argued, among other things, that plaintiff’s motion failed to demonstrate that plaintiff is presently ready for trial. The Civil Court denied plaintiff’s motion, stating, erroneously, that more than one year had passed since the case had been marked off without restoration. The court also stated, citing CPLR 3404, that plaintiff had failed to demonstrate “a reasonable excuse, a meritorious claim, lack of intent to abandon [and a] lack of prejudice to [defendant].”

At the outset, we note that, contrary to the determination of the Civil Court, plaintiff’s motion to restore was made within one year after the action had been “marked off” the trial calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). We further note that CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), not to cases in the Civil Court.

Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), when an action has been stricken from the calendar and a party moves within a year to restore the action to the calendar, that motion “must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.” Here, plaintiff’s counsel’s bare assertion, that the action had been stricken because plaintiff’s witness had been “unavailable,” was conclusory, since it failed to provide any indication as to who the witness was or any reason as to why the witness was unavailable. As plaintiff failed to proffer a satisfactory explanation for the action having been stricken from the calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]), plaintiff’s motion was properly denied. In view of the foregoing, we do not reach the parties’ remaining contentions.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 12, 2013. 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 appeals from an order of the Civil Court which denied his motion for summar judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Even if plaintiff had made a prima facie case, an issue we do not decide, his motion for summary judgment was properly denied. The papers submitted by defendant in opposition to plaintiff’s motion for summary judgment were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on the ground of plaintiff’s assignor’s fraudulent procurement of the insurance policy in question by virtue of her misrepresentation of her place of residence in order to obtain insurance at a lower premium. Furthermore, defendant’s papers demonstrated that there is, at least, a triable issue of fact as to whether the assignor had provided a fraudulent address when she obtained the insurance policy.

With respect to defendant’s cross motion, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). No-fault benefits may be denied to an insured where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon the record before us, we find [*2]that defendant failed to establish as a matter of law that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums (see Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51322[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]).

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

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 26, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

As a preliminary matter, because plaintiff failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. {**51 Misc 3d at 68} 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]), plaintiff failed to demonstrate its prima facie entitlement to summary judgment.

Defendant cross-moved for summary judgment, arguing that one ground upon which it had timely denied plaintiff’s claims was that no one on plaintiff’s behalf had complied with 11 NYCRR 65-1.1, which states that written notice of an accident must be “given” to the insurer “as soon as reasonably practicable, but in no event more than 30 days after the date of the accident” (11 NYCRR 65-1.1 [d]; see also Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [a claimant must “submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident”]). The affidavit of defendant’s no-fault claims manager, submitted in support of defendant’s cross motion, stated that defendant had first learned of the October 14, 2010 accident when it received an NF-2 form on November 15, 2010, thereby demonstrating that defendant had not received written notice of the accident within 30 days after it had occurred.

Plaintiff argues that mailing written notice of the accident to the insurer on or before the 30th day after the accident will satisfy the 30-day notice requirement of 11 NYCRR 65-1.1. We [*2]agree. We note that 11 NYCRR 65-1.1 does not define what it means for a written notice to be “given,” and the Court of Appeals did not elaborate when it stated that a claimant must “submit” a notice of claim (Hospital for Joint Diseases, 9 NY3d at 317). However, 11 NYCRR 65-3.4 (b) requires no-fault insurers to “forward to the applicant the prescribed application for motor vehicle no-fault benefits (NYS form [NF-2]) accompanied by the prescribed cover letter (NYS form [NF-1]),” and the prescribed cover letter included in Appendix 13 to Regulation 68 states that the NF-2 application for no-fault benefits (which satisfies the written notice requirement [see 11 NYCRR 65-3.3 (d)]) “must be sent to [the insurer] within 30 days of the accident date if your original notice to [the insurer] was not in writing.” We hold that mailing the written notice of claim to the insurer within 30 days of the accident satisfies the requirement that written notice be “sent” to the insurer, as instructed by the prescribed cover letter, and that written notice be “given” to the insurer, as required by 11 NYCRR 65-1.1.

Here, defendant did not demonstrate, prima facie, that timely written notice of the accident had not been mailed to it. Rather, the 30th day after the accident fell on a Saturday,{**51 Misc 3d at 69} November 13, 2010, making Monday, November 15, 2010 the date on which defendant alleges it first received an NF-2 form, the last date by which written notice of the accident could be timely mailed (see General Construction Law §§ 25, 25-a; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]; see also General Construction Law § 20 [providing, in pertinent part, that “(t)he day from which any specified period of time is reckoned shall be excluded in making the reckoning”]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

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

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