Decided on February 18, 2016

[*1]

Carroll McNulty & Kull, LLC, New York City (Ann Odelson of counsel), for appellant.

Craig T. Bumgarner, Carmel, for respondent.

Devine, J. Appeal from an order of the Supreme Court (Schick, J.), entered May 29, 2015 in Sullivan County, which, among other things, granted plaintiff’s motion for summary judgment declaring that defendant has a duty to defend and/or indemnify plaintiff in an underlying action.

Defendant issued a commercial general liability insurance policy to plaintiff, a construction firm, effective from October 2008 to October 2009. Plaintiff was the general contractor at a construction site where, in February 2009, Allan Speirs was injured in the course of his work for a subcontractor. Defendant was notified of the occurrence in March 2009. Plaintiff then learned that Speirs had allegedly sustained serious injuries in the accident and had retained counsel and, in January 2010, that information was promptly forwarded to defendant.

Speirs commenced an action against plaintiff and the owner of the construction site in August 2011, alleging violations of Labor Law §§ 200 and 241 (6), as well as common-law negligence. In November 2011, plaintiff was served with the summons and complaint pursuant to Business Corporation Law § 306 but, because its registered agent was the defunct law firm that handled its 1965 incorporation, it did not receive those documents. Plaintiff accordingly defaulted, and neither it nor defendant became aware of the personal injury action until counsel for Speirs alerted defendant to that fact in March 2012. Defendant disclaimed coverage because, among other things, plaintiff had failed to give it notice of the personal injury action as required by the liability policy.

Plaintiff thereafter commenced this action seeking a declaration that defendant is required to defend and indemnify it in the personal injury action. Following joinder of issue, plaintiff moved, and defendant cross-moved, for summary judgment. Supreme Court granted [*2]summary judgment to plaintiff, and defendant now appeals.

We reverse. The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 440 [1997]; see American Tr. Ins. Co. v Sartor, 3 NY3d 71, 75-76 [2004]). “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” (American Tr. Ins. Co. v Sartor, 3 NY3d at 76; see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]). At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).^[FN1] The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496 [2002]; see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).

There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v Sartor, 3 NY3d at 76; Kalthoff v Arrowood Indem. Co., 95 AD3d 1413, 1415 [2012], lv denied 19 NY3d 815 [2012]). That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” (233 E. 17th St., LLC v L.G.B. Dev., Inc., 78 AD3d 930, 932 [2010]). Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” (Kalthoff v Arrowood Indem. Co., 95 AD3d at 1415; see Briggs Ave. LLC v Insurance Corp. of Hannover, 11 NY3d 377, 381 [2008]; AH Prop., LLC v New Hampshire Ins. Co., 95 AD3d 1243, 1244-1245 [2012]).

Plaintiff nevertheless argues that it is entitled to summary judgment because defendant was not prejudiced by the lack of timely notice of suit, pointing to analogous cases involving supplemental uninsured and underinsured motorists coverage where timely notice of an occurrence, but not of the ensuing legal action, was given (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 475; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). The Court of Appeals observed in those cases, however, that the “no-prejudice” rule had less potency in the context of such coverage because an insurer was able to protect its interests due to its receipt of the separate no-fault claim (see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). In contrast, “[t]he rationale of the no-prejudice rule is clearly applicable to a late notice of lawsuit under a liability insurance policy,” as a liability insurer is [*3]unlikely to obtain pertinent information through other means, impairing its ability “to take an active, early role in the litigation process and in any settlement discussions and to set adequate reserves” (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 340). The “no-prejudice” rule accordingly applies to the case before us, and the failure of defendant to affirmatively establish prejudice is of no moment (see id.; Liberty Moving & Stor. Co., Inc. v Westport Ins. Corp., 55 AD3d 1014, 1016-1017 [2008], lv denied 12 NY3d 709 [2009]; 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co., 54 AD3d 593, 593-594 [2008]).^[FN2] Thus, defendant should have been awarded summary judgment dismissing the complaint.

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the order is reversed, on the law, with costs, plaintiff’s motion denied, defendant’s cross motion granted, summary judgment awarded to defendant and complaint dismissed, and it is declared that defendant has no duty to defend or indemnify plaintiff in the underlying action.

Footnotes

Footnote 1:Amendments to Insurance Law § 3420 subsequently took effect that prevented an insurer from disclaiming coverage “unless the failure to provide timely notice has prejudiced” it (Insurance Law § 3420 [a] [5]; [c] [2], as added by L 2008, ch 388; see Rosier v Stoeckeler, 101 AD3d 1310, 1312 [2012]).

Footnote 2:Regardless of the fact that defendant was not required to show prejudice, plaintiff is far from persuasive in asserting that defendant could not have been prejudiced by the absence of timely notice of suit. As a result of the lack of notice, defendant lost the opportunity to “appear and interpose an answer” on plaintiff’s behalf as of right, although counsel for Speirs was apparently willing to show leniency in that regard (American Tr. Ins. Co. v Rechev of Brooklyn, Inc., 57 AD3d 257, 257 [2008]).

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

Defendant’s motion for summary judgment dismissing this first-party no-fault action on the ground of lack of medical necessity should have been denied. The independent medical examination (IME) report of defendant’s chiropractor/acupuncturist, one Antoinette Perrie, was not in admissible form and should not have been considered. The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106 (see Walker v Village of Ossining, 18 AD3d 867, 868 [2005]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Nor was the report shown to have been properly “sworn to” before a notary or other authorized official (see Hartley v White, 63 AD3d 1689, 1690 [2009]; Feggins v Fagard, 52 AD3d 1221, 1223 [2008]; see also Gleason, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C2106:4. P 609-610).

Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims 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]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

[*1]

Jason Tenenbaum, P.C., Garden City, NY (Eric Wahrburg of counsel), for appellant.

Don L. Hochler, P.C., Woodbury, NY (Don L. Hochler of counsel), for respondent.

In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance claims submitted by the defendant, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered November 17, 2014, as denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

On March 25, 2012, Juana Coyotl was injured in an automobile accident. At the time of her accident, Coyotl was insured under an automobile liability policy issued by the plaintiff, which contained a “no-fault” provision covering any necessary expenses incurred by Coyotl as a result of such an accident. Coyotl assigned these insurance benefits to the defendant, which provided her with medical treatment for the injuries she sustained in the accident. The defendant then billed the plaintiff for the costs of treating Coyotl, but the plaintiff denied the defendant’s claims on the ground that the services rendered were not medically necessary.

The plaintiff subsequently commenced this action seeking a declaration that it was not obligated to pay the defendant for no-fault benefits relating to Coyotl’s treatment, since those services were not medically necessary. The plaintiff moved for summary judgment, contending that its denials of coverage were properly and timely sent to the defendant, and that the treatment rendered to Coyotl by the defendant was not medically necessary. The Supreme Court denied the motion.

Contrary to the Supreme Court’s determination, the affidavit of the plaintiff’s branch manager, submitted by the plaintiff in support of its motion for summary judgment, was sufficient to establish, prima facie, that its denial of claim forms were timely mailed in accordance with the plaintiff’s standard and appropriate office mailing practices and procedures (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; cf. Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051 [2015]). In opposition, the defendant failed to raise a triable issue of fact as to the timeliness of the denial of claim.

Furthermore, with respect to the medical necessity of the services provided by the defendant, the plaintiff submitted affirmed medical evaluations which made a prima facie showing [*2]that the services at issue were not medically necessary (see Gaetane Physical Therapy, P.C. v Great N. Ins. Co., 47 Misc 3d 145[A], 2015 NY Slip Op 50698[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Dr. Todd Goldman, D.C., P.C. v Kemper Cas. Ins. Co., 36 Misc 3d 153[A], 2012 NY Slip Op 51713[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2012]).

However, in opposition to the motion, the defendants submitted affidavits and various medical records relating to Coyotl’s treatment which were sufficient to raise a triable issue of fact as to the necessity of that treatment (see Westcan Chiropractic, P.C. v Hertz Claim Mgt., 48 Misc 3d 133[A], 2015 NY Slip Op 51066[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Meridian Acupuncture Care, P.C. v Mercury Cas. Co., 47 Misc 3d 143[A], 2015 NY Slip Op 50681[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Fine Healing Acupuncture, P.C. v Country-Wide Ins. Co., 33 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment, as further proceedings are necessary to determine the issue of the medical necessity of the treatment rendered to Coyotl.

The plaintiff’s remaining contentions are without merit. Mastro, J.P., Hall, Maltese and LaSalle, JJ., concur.

[*1]

Civil Court of the City of New York, Kings County, February 9, 2016

APPEARANCES OF COUNSEL

Lawrence Robert Miles, Long Island City, for defendant.

Perchekly Law Group, P.C., Brooklyn, for plaintiff.

Defendant’s motion for summary judgment, submitted on default and without written opposition or appearance by the plaintiff, is decided as follows:

Factual Background

In this action to recover assigned first-party no-fault benefits, plaintiff submitted claims for payment for medical services it rendered to Kenia Perez in August, September and October 2013. Defendant does not contest that it received the claim from plaintiff, but denied the claim [*2]because it claims plaintiff did not bill the services in accordance with the applicable fee schedule. Defendant recalculated the amount pursuant to its reading of the fee schedule, and paid plaintiff the amount it calculated.

Discussion

Defendant moves for summary judgment on the basis that it paid plaintiff the amount to which plaintiff was entitled pursuant to the fee schedule. Defendant further contends that, under the amended version of 11 NYCRR 65-3.8, which applies to services rendered after April 1, 2013, plaintiff must prove it billed in accordance with the fee schedule in order to make its prima facie case.

Pursuant to 11 NYCRR 65-3.8 (g) (1),

“[p]roof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical services under any circumstances: . . .

“(ii) for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.”

Defendant argues that the amendments to 11 NYCRR 65-3.8 (g) (1) change the nature of plaintiff’s prima facie proof. As set forth below, this court holds that the insurer’s objection to plaintiff’s alleged over-billing remains an affirmative defense. Thus, the only issue is whether the defense is precluded or not precluded if it is rendered later than 30 days after defendant receives the claim (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 510 [2015]).{**51 Misc 3d at 443}

As the Court of Appeals made clear in Viviane Etienne,

“a medical provider seeking reimbursement from a no-fault insurer demonstrates its entitlement to reimbursement of overdue benefits when it proves that it submitted a completed claim form to the insurer. A claim is overdue if it is not denied or paid within 30 days of the insurer’s receipt of proof of claim” (id. at 507).

The language of 11 NYCRR 65-3.8 (g) (1) does not conflict with the holding in Viviane Etienne. The regulation does not place any additional requirements on the medical provider, such as a requirement, in the general case, to substantiate the calculation of its fees. The plain language of the regulation requires that the insurance company determine if the medical provider billed its services in accordance with the applicable fee schedule. If the insurance company determines that the bill contravenes the fee schedule, the regulation states that the insurance company need not pay the bill. Therefore, the burden remains on the insurer to assert a defense that the provider billed in excess of the fee schedule.

Although the amendment does not change plaintiff’s prima facie burden, I find that the new language establishes that a fee schedule defense, for services after April 1, 2013, is not precluded if it is not asserted within 30 days of receipt of the claim. The regulation appears to be a carve-out from 11 NYCRR 65-3.8 (a) (1), which states that “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart.” Conversely, 11 NYCRR 65-3.8 (g) (1) imposes no deadline on the insurance company’s determination. At least two courts in the First Department concur with this court’s interpretation of 11 NYCRR 65-3.8 (g) (1) (see Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d [*3]336, 344-345 [Civ Ct, Bronx County 2015]; Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85, 87 [App Term, 1st Dept 2015]).

Based on this interpretation of 11 NYCRR 65-3.8 (g) (1), defendant may assert in this action a defense that plaintiff’s claim exceeds the applicable fee schedule. In support of this defense, defendant submits the affidavit of Veronica Pabon, a certified medical coder and biller employed by defendant as a fee schedule team leader (Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U], *2 [App Term,{**51 Misc 3d at 444} 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Ms. Pabon states that defendant paid plaintiff, an acupuncturist, in accordance with the rate paid to chiropractors for the same services (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23, 24-25 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Ms. Pabon described the process by which defendant calculated the fees and supported those calculations with reference to the applicable fee schedule. Defendant also provided copies of the checks it sent to plaintiff. Based on this unopposed evidence, defendant paid plaintiff in accordance with the fee schedule, and does not owe plaintiff any additional payment.

For the foregoing reasons, defendant’s motion for summary judgment is granted and plaintiff’s complaint is dismissed.

Decided on February 5, 2016

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

Decided on February 5, 2016

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

Decided on February 5, 2016

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

602913/15

Riconda & Garnett, LLP Attorney for the Plaintiff753 West Merrick Road Valley Stream, New York 11580

Law Offices of Bryan M. RothenbergAttorney for the Defendant 90 Merrick Avenue, Suite 300 East Meadow, New York 11554

Danielle M. Medeiros, Esq. Assistant Law Clerk 100 Supreme Court Drive Mineola, New York 11501

Upon the foregoing papers, the Defendant, 21st CENTURY INSURANCE’s (hereafter “21st Century”), motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI’s First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is determined [*2]as provided herein.

The Plaintiff, Michael Bertucci, brings this action seeking damages allegedly resulting from the denial of no-fault benefits by his insurer, the Defendant, 21st Century.

The Defendant issued an automobile insurance policy (“the Policy”) to the Plaintiff at his Pennsylvania address located at 101 East Tamarack Court, East Stroudsburg, PA 18302. The Policy provides for the payment of medical bills for the insured.

On November 26, 2014, the Plaintiff was involved in an automobile accident on Deer Park Avenue, in the County of Suffolk, State of New York. As a result of his injuries from this accident, the Plaintiff sought treatment with medical providers in New York. In addition, the Plaintiff forwarded a timely application for no-fault benefits to 21st Century. The Defendant, however, refused to pay any of the Plaintiff’s medical bills arguing that the Plaintiff’s car was principally garaged in New York State rather than in Pennsylvania and thus the Plaintiff violated the conditions of the Policy. Ultimately, approximately seven months from the date of his accident, on June 25, 2015, 21st Century issued a denial of the Plaintiff’s entire claim for no-fault benefits, including for the payment of his medical bills, claiming that the Policy conditions were violated.

This action was commenced seeking damages on the Plaintiff’s First Cause of Action based upon a claim of negligence and a claim for breach of contract including a claim for punitive damages alleged in the Plaintiff’s Second Cause of Action. The Plaintiff claims that his medical treatment has been delayed because of the Defendant’s non-payment of his medical bills, which, in turn has resulted in the aggravation and exacerbation of his injuries. The Plaintiff submits that the Defendant’s delay and failure to timely pay his no-fault benefits has resulted in the delay of his treatment which has complicated his recovery and is the basis of his claims in tort and for breach of contract and for punitive damages.

Specifically, in his First Cause of Action, the Plaintiff asserts that two of his healthcare providers refused to continue to provide services after learning from 21st Century that it would not pay for planned future treatments. In his Second Cause of Action, the Plaintiff alleges that the Defendant breached it contractual obligations under the Policy by failing to pay no-fault benefits required by the Policy and therefore he is entitled to, inter alia, an award of punitive damages.

In moving, post-answer, for an Order seeking to dismiss the negligence and punitive damages claims ^[FN1] , the Defendant argues that the Plaintiff fails to state a cause of action for either claim. Specifically, the Defendant argues that it is “under no legal duty to refrain from communicating with the Plaintiff’s heath care providers regarding its intentions to not pay submitted bills” and that “any failure to pay health care providers is at most a simple breach of contract that is not actionable in tort” (See Affirmation In Support, ¶ 10). Thus, it argues, it is entitled to a dismissal of the Plaintiff’s First Cause of Action. With respect to the claim for punitive damages in the Plaintiff’s Second Cause of Action, the Defendant argues that the Plaintiff’s allegations are insufficient to warrant an award of punitive damages as a matter of law.

On a motion to dismiss pursuant to CPLR § 3211 (a) (7), the Court must accept as true, the facts “alleged in the complaint and submissions in opposition to the motion, and accord [*3]plaintiffs the benefit of every possible favorable inference,” determining only “whether the facts as alleged fit within any cognizable legal theory” (Simkin v. Blank, 19 NY3d 46, 52 [2012]; Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Polonetsky v. Better Homes Depot, 97 NY2d 46, 54 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Indeed, the plaintiff has no obligation on a motion to dismiss to demonstrate evidentiary facts to support the allegations contained in the complaint. (Stuart Realty Co. v. Rye Country Store, 296 AD2d 455 [2d Dept. 2002]; Paulsen v. Paulsen, 148 AD2d 685, 686 [2d Dept. 1989])

However, conclusory averments of wrongdoing are insufficient to sustain a complaint. (DiMauro v. Metropolitan Suburban Bus Auth., 105 AD2d 236 [2d Dept. 1984]) Thus, bare legal conclusions and factual allegations “flatly contradicted by documentary evidence in the record are not presumed to be true, and [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action”. (Deutsche Bank Natl. Trust Co. v. Sinclair, 68 AD3d 914, 915 [2d Dept. 2009] quoting Peter F. Gaito Architecture., LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept. 2007])

Here, the Plaintiff’s attempt to assert a claim for negligence against the Defendant based upon its communications with his health care providers fails to withstand the Defendant’s motion to dismiss. The law is settled. A claim for negligence requires the pleading of facts that impose a duty of care upon the defendant in favor of the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of plaintiff’s injuries. (Pulka v. Edelman, 40 NY2d 781 [1976]; Akins v. Glens Falls School Dist., 53 NY2d 325, 333 [1981]) Absent a duty of care, there is no breach, and without breach there can be no liability. (Pulka v. Edelman, supra; Gordon v. Muchnick, 180 AD2d 715 [2d Dept. 1992]) Preliminarily, however, whether a duty of care is imposed upon the defendant in favor of the plaintiff under the circumstances alleged is an issue of law for the court to decide. (Church v. Callanan Indus., 99 NY2d 104 [2002])

Here, the Plaintiff has failed to specify or identify the duty that he claims the Defendant allegedly breached. This is fatal on a motion seeking to dismiss the negligence claim based on the failure to state a cause of action.

Indeed, even affording the Plaintiff a liberal construction of his claims, it is clear to this Court that insofar as the gravamen of the First Cause of Action is that health care providers refused to continue to provide service after learning from 21st Century that it would not pay for planned future treatments, the asserted duty, if any, lies in either the act of communication or in the content of the communication. As best determined from the papers submitted herein, including the Plaintiff’s opposition papers, it is the Plaintiff’s contention that his tort claim is based upon 21st Century’s denial of his no-fault benefits claim without justification (i.e., the content of the Defendant’s communication) (See Affirmation In Opposition, ¶¶ 16, 21). To that end, this Court finds that the decision of the insurance company to not pay for treatment does not establish a tort cause of action independent from the breach of contract claim. (Logan v. Empire Blue Cross & Blue Shield, 275 AD2d 187 [2d Dept. 2000]) As the Second Department held in Logan v. Empire Blue Cross & Blue Shield, supra:

[The insurer] d[oes] not owe the [individual insureds] a duty to perform its contractual obligations [*4]with reasonable care. The respective contracts of insurance between [the insurer] and the [individual insureds] d[oes] not create a relationship for which a duty is owed to the plaintiff separate from the contractual obligation’ ***

(Logan v. Empire Blue Cross & Blue Shield, supra at 192 [citations omitted]).

Thus, while the Plaintiff’s attempt to enforce a claimed right to have the Defendant pay his medical bills may be valid under a contract theory, it does not form a basis for a negligence (tort) claim herein.

Moreover, even if this Court were to construe the Plaintiff’s negligence claim as one based upon the Defendant having communicated with the Plaintiff’s medical providers (regardless of the content of the communication), the act of communicating, also, can not form a basis for a negligence claim. Indeed, the Plaintiff has failed to identify any legal basis which proscribes the Defendant from communicating with a policyholder’s health care providers regarding the status of its coverage investigation.

Therefore, the branch of the Defendant’s motion seeking to dismiss the Plaintiff’s First Cause of Action should be granted.

With regard to the branch of the Defendant’s motion seeking to dismiss the claim for punitive damages contained in the Plaintiff’s Second Cause of Action, initially, it is noted that no separate cause of action for punitive damages lies for pleading purposes. (Paisley v. Coin Device Corp., 5 AD3d 748 [2d Dept. 2004]; Crown Fire Supply Co. v. Cronin, 306 AD2d 430, 431 [2d Dept. 2003])

Moreover, in an action based on breach of contract, “punitive damages may be recoverable if necessary to vindicate a public right”. (New York Univ. v. Continental Ins. Co., 87 NY2d 308, 315 [1995]; citing Rocanova v. Equitable Life Assur. Socy., 83 NY2d 603, 613 [1994]) Punitive damages may not be used to remedy private wrongs. In addition, one of the necessary elements in such a case is that the “defendant’s conduct must be actionable as an independent tort”. (New York Univ. v. Continental Ins. Co., supra, at 316; Rocanova v. Equitable Life Assur. Socy., supra) A breach of contract can be an actionable independent tort when the nature of the contracting party’s services is to protect people and property from physical harm. (New York Univ. v. Continental Ins. Co., supra at 317)

Here, in support of his claim for punitive damages, the Plaintiff asserts that 21st Century’s actions were “wanton, willful, and in reckless disregard for the rights of plaintiff” (See Complaint, ¶ 61). Not only is this bare characterization without consequence and wholly deficient to withstand the Defendant’s motion to dismiss (see generally, Barker v. Amorini, 121 AD3d 823, 824 [2d Dept. 2014]), by a simple reading, it is clear that none of the facts alleged establish a conduct on the part of the Defendant that is part of a pattern directed at the public generally. In addition, as noted above, because the Plaintiff has also failed to establish any independent basis for determining that the Defendant’s conduct constitutes a tort independent of the insurance contract itself, the Plaintiff’s demand for punitive damages requires dismissal. (New York Univ. v Continental Ins. Co., supra, at 320)

Similarly, that portion of the Plaintiff’s claim, which is seeks punitive damages, as alleged in his Second Cause of Action, should be dismissed.

The parties’ remaining contentions have been considered and do not warrant discussion.

Accordingly, it is hereby

ORDERED, that the Defendant, 21st CENTURY INSURANCE’s motion seeking an order (a) pursuant to CPLR § 3211 (a) (7) dismissing the Plaintiff, MICHAEL BERTUCCI’s First Cause of Action; and (b) pursuant to CPLR § 3211 (a) (7) striking from the Second Cause of Action of the Complaint the claim for punitive damages, is GRANTED.

This constitutes the Decision and Order of the Court.

DATED: February 1, 2016
Mineola, New York
________________________________
Hon. Randy Sue Marber, J.S.C.

Footnotes

Footnote 1:Despite the fact that this motion to dismiss, made pursuant to CPLR § 3211 (a) (7) is made shortly after serving of the Defendant’s Answer and before any disclosure, this Court will nevertheless treat this application as a narrowly framed post-answer CPLR § 3211 (a) (7) motion.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 3, 2013. The order granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In April 2012, plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, Balgobin Manoo, who had allegedly sustained injuries in a motor vehicle accident which had occurred on November 14, 2011. After this action was commenced, defendant commenced a declaratory judgment action in the Supreme Court, New York County, against Manoo, plaintiff and other providers, seeking a declaration that the defendants therein were not entitled to no-fault benefits as a result of the November 14, 2011 accident involving Manoo, on the ground that Manoo had failed to comply with the terms of the applicable insurance policy by failing to appear for scheduled examinations under oath (EUOs). Neither plaintiff nor Manoo appeared or served an answer in the Supreme Court declaratory judgment action.

In November 2012, plaintiff moved in this action for summary judgment. In June 2013, defendant cross-moved in this action for summary judgment dismissing the complaint based upon Manoo’s failure to appear at scheduled EUOs. In addition to submitting various affidavits and documents in support of the cross motion, defendant submitted an affirmation of defense counsel which stated that defendant had made a motion for the entry of a default judgment against plaintiff and Manoo in the Supreme Court declaratory judgment action, which motion was unopposed, and that defendant was expecting a decision in its favor. Upon receipt of a decision in that action, defendant reserved its right to supplement its cross motion with that decision or to include the decision with its reply affirmation. Approximately one week later, plaintiff submitted an affirmation in opposition to defendant’s cross motion, without mentioning the declaratory judgment action. In August 2013, defense counsel submitted a reply affirmation, noting that, on July 8, 2013, an order had been entered on default in the Supreme Court declaratory judgment action declaring that plaintiff herein and its assignor had no right to be reimbursed for services rendered to the assignor and that defendant herein had no obligation to provide coverage for no-fault claims with respect to the accident in question. Plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion, based on the Supreme Court order, and dismissed the complaint.

Plaintiff argues that by failing to plead collateral estoppel or res judicata as affirmative defenses in its answer, defendant waived those defenses (see CPLR 3018 [b]). Initially, we note [*2]that defendant’s failure to raise the affirmative defenses of collateral estoppel or res judicata in its answer was understandable and excusable since defendant had no reason to assert these defenses before July 2013, when the Supreme Court entered the order in the declaratory judgment action. In any event, a waiver will not result if a defendant’s failure to plead a matter affirmatively does not take the adverse party by surprise (see e.g. Olean Urban Renewal Agency v Herman, 101 AD2d 712, 713 [1984]; see also Rogoff v San Juan Racing Assn., 77 AD2d 831 [1980], affd 54 NY2d 883 [1981]). Indeed, “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]; see also Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Allen v Matthews, 266 AD2d 782 [1999]).

Defense counsel’s affirmation in support of defendant’s cross motion (which alerted plaintiff that an order in the declaratory judgment action was imminent) as well as the reply papers (which included a complete set of pleadings, motion papers and the order in the declaratory judgment action) apprised plaintiff that defendant was asserting the affirmative defenses of collateral estoppel and res judicata based on the declaratory judgment action, and plaintiff chose not to address this issue, either in opposition to defendant’s cross motion or by way of surreply. Nor does the record indicate that there was any prejudice to plaintiff.

In any event, this court may take judicial notice of undisputed court records and files, including the order in the Supreme Court declaratory judgment action (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). Having done so, we find that the present action is barred under the doctrine of res judicata, for the reasons stated in Renelique as Assignee of Balgobin Manoo v State-Wide Ins. Co. (__ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2314 Q C], decided herewith).

Plaintiff’s remaining contentions on appeal are without merit.

Accordingly, the order is affirmed.

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