Reported in New York Official Reports at Maiga Prods. Corp. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 50113(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Unitrin Auto and Home Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 22, 2014. The judgment entered pursuant to an order of the same court dated July 2, 2014 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $549.18.
ORDERED that the judgment is reversed, without costs, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.
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 on the ground, among others, that the assignor’s failure to appear for examinations under oath (EUOs) violated a condition precedent to coverage, which provided defendant with a basis for its founded belief that the underlying accident was not a covered event. In the alternative, defendant’s cross motion sought a stay of the action pending the determination of a Supreme Court declaratory judgment action involving the same accident, medical provider and assignor. By order dated July 2, 2014, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant had failed to demonstrate that the assignor had failed to appear at two scheduled EUOs. A judgment was subsequently entered in plaintiff’s favor on August 22, 2014, from which defendant appeals.
Upon a review of the record, we find that plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Consequently, plaintiff failed to establish its prima facie case.
In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. [*2]Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
We pass on no other issue.
Accordingly, the judgment is reversed, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.
Solomon, J.P., Weston and Elliot, JJ., concur.
Decision Date: January 20, 2017
Reported in New York Official Reports at Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50106(U))
| Flatbush Chiropractic, P.C. v American Tr. Ins. Co. |
| 2017 NY Slip Op 50106(U) [54 Misc 3d 135(A)] |
| Decided on January 20, 2017 |
| 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 January 20, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2015-1650 Q C
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 6, 2015. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.
ORDERED that the order entered May 6, 2015 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 defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.
For the reasons stated in Flatbush Chiropractic, P.C., as Assignee of Pierre Luxio v American Tr. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2015-1649 Q C], decided herewith), the order is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 20, 2017
Reported in New York Official Reports at Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50105(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 6, 2015. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.
ORDERED that the order entered May 6, 2015 is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for a stay, arguing that there was a question as to whether plaintiff’s assignor had been injured during the course of his employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order entered March 7, 2013, the Civil Court (Larry Love, J.) denied plaintiff’s motion and granted defendant’s cross motion, finding that, since there was an issue of fact as to whether the accident had occurred in the course of the assignor’s employment, Board resolution was required. The order further stated that should the matter not be filed with the Board “within 90 days of this order, the action may be dismissed, absent any good cause from the plaintiff.”
Approximately 21 months later, defendant moved to dismiss the complaint based upon plaintiff’s failure to comply with the Civil Court’s March 7, 2013 order, i.e., to demonstrate by June 7, 2013 (90 days from the date of the court’s order) that an application to the Board had been made. Plaintiff cross-moved for leave to renew its motion for summary judgment based on “new facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e] [2]).” In support of renewal, plaintiff offered, among other things, an affidavit by a paralegal of plaintiff’s counsel’s firm, who had requested that a Board employee conduct a search of plaintiff’s assignor’s name in the Board’s database, which found no record of plaintiff’s assignor having made an application for workers’ compensation benefits. From this “new evidence,” plaintiff concluded that the matter was not subject to or covered by the Workers’ Compensation Law and that there was no Board jurisdiction. Plaintiff reasoned that since it had demonstrated in its prior motion that it was entitled to summary judgment, defendant was responsible for payment of plaintiff’s claims for assigned no-fault benefits.
In an order entered May 6, 2015, from which plaintiff appeals, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross [*2]motion for leave to renew its prior motion for summary judgment. We affirm.
A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Since it cannot be said that the alleged “new facts” offered by plaintiff would have changed the prior determination, and since plaintiff did not show good cause why the complaint should not be dismissed, the Civil Court properly denied plaintiff’s cross motion for leave to renew and granted defendant’s motion to dismiss the complaint.
Accordingly, the order is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 20, 2017
Reported in New York Official Reports at Integral Assist Med., P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50103(U))
| Integral Assist Med., P.C. v Tri-State Consumer Ins. Co. |
| 2017 NY Slip Op 50103(U) [54 Misc 3d 135(A)] |
| Decided on January 20, 2017 |
| 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 January 20, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., GARGUILO and BRANDS, JJ.
2015-1336 S C
against
Tri-State Consumer Insurance Company, Respondent.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated April 30, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint. There is no merit to plaintiff’s argument on appeal that defendant “clearly took an adversarial position” during claims processing in violation of 11 NYCRR 65-3.2 (b).
Accordingly, the order is affirmed.
Marano, P.J., Garguilo and Brands, JJ., concur.
Decision Date: January 20, 2017
Reported in New York Official Reports at Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50101(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hereford Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 23, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedules. The Civil Court granted defendant’s motion in its entirety. As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules.
The record reflects that plaintiff submitted three claim forms to defendant which included charges for 21 sessions of moxibustion, under code 97039, which is described as “Unlisted modality (specify type and time if there was constant attendance)” and for one session of acupressure, under code 99199, which is described as “Unlisted special service, procedure or report.” The workers’ compensation fee schedules do not assign a relative value to either of those codes, but instead have assigned them a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Plaintiff did not provide such documentation with its claim forms and defendant did not, within 15 business days of its receipt of the claim forms, request “any additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). As defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules, defendant was not entitled to summary judgment dismissing so much of the complaint as sought [*2]to recover for services rendered under those codes (see Gaba Med., P.C. v Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally 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]).
Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under codes 97039 and 99199 of the workers’ compensation fee schedules are denied.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 20, 2017
Reported in New York Official Reports at Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co. (2017 NY Slip Op 50118(U))
[*1]| Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co. |
| 2017 NY Slip Op 50118(U) [54 Misc 3d 136(A)] |
| Decided on January 20, 2017 |
| 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 January 20, 2017
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2015-1033 K C
against
State Farm Fire and Casualty Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered November 18, 2014. The order denied plaintiff’s motion to vacate an order of the same court entered February 20, 2014 which had granted, as unopposed, defendant’s motion for summary judgment dismissing the complaint and which had refused to consider, on the ground of untimeliness, plaintiff’s cross motion for summary judgment.
ORDERED that the order entered November 18, 2014 is modified by providing that plaintiff’s motion to vacate the order entered February 20, 2014 is granted to the extent of (1) vacating the portion of the February 20, 2014 order that granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $494.67 and by providing that that branch of defendant’s motion is denied, and (2) vacating the portion of the February 20, 2014 order that refused to consider, on the ground of untimeliness, the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $494.67; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for a determination on the merits of the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $494.67.
In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a motion-schedule stipulation. Defendant subsequently moved for summary judgment dismissing the complaint on the ground that the assignor had breached a condition precedent to coverage by failing to appear at scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment and submitted papers in opposition to defendant’s motion. In an order entered February 20, 2014, the Civil Court granted defendant’s motion, stating that “[d]efendant’s motion is granted as no timely opposition was served. Plaintiff’s cross motion is not being considered because it was untimely. This action is hereby dismissed.” Thereafter, plaintiff moved, among other things, to vacate the February 20, 2014 order. By order entered November 18, 2014, the Civil Court denied plaintiff’s motion, stating that “[t]he opposition [and] cross motion on the underlying motion were untimely served, [and] the court refused to consider those papers based on the parties’ briefing stipulation.”
It is well settled that a party seeking, pursuant to CPLR 5015 (a) (1), to open its default in [*2]opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see Suede v Suede, 124 AD3d 869 [2015]; Shkolnik v Beyderman, 43 Misc 3d 143[A], 2013 NY Slip Op 52033[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; see also D & R Med. Supply, Inc. v American Tr. Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50785[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
The affirmation of plaintiff’s attorney provided a detailed and credible showing of law office failure, which constituted an adequate excuse for plaintiff’s default in timely opposing defendant’s motion (see Estrada v Selman, 130 AD3d 562, 562-563 [2015]). Moreover, plaintiff submitted an affidavit by its medical billing supervisor, who stated that she had personally and timely mailed the $844.13, $502.63, and $494.67 claims to defendant, which showing was sufficient to give rise to a presumption that the claims had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Defendant’s papers in opposition to plaintiff’s motion to vacate the prior order, as well as in support of its motion for summary judgment dismissing the complaint, demonstrated that it had timely denied the $844.13 and $502.63 claims on the ground that the assignor had failed to appear at scheduled EUOs, and defendant stated that it had never received the $494.67 claim for the services plaintiff had rendered to its assignor on August 13, 2012. In her affidavit, plaintiff’s supervisor stated, with respect to the three claims, that they “remain[] outstanding as the defendant failed to issue full payment for the aforementioned bill[s].” This statement does not rebut defendant’s proof that it was entitled to summary judgment with respect to the $844.13 and $502.63 claims. Consequently, plaintiff failed to demonstrate a potentially meritorious opposition to the branches of defendant’s motion seeking summary judgment with respect to these two claims. However, since plaintiff’s affidavit was sufficient to give rise to the presumption that defendant had received the $494.67 claim, plaintiff demonstrated a meritorious opposition to the branch of defendant’s motion seeking summary judgment with respect to that claim.
Accordingly, the order entered November 18, 2014 is modified by providing that plaintiff’s motion to vacate the order entered February 20, 2014 is granted to the extent of (1) vacating the portion of that order that granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $494.67 and by providing that that branch of defendant’s motion is denied, and (2) vacating the portion of the February 20, 2014 order that refused to consider, on the ground of untimeliness, the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $494.67; as so modified, the order is affirmed and the matter is remitted to the Civil Court for a determination on the merits of the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon the claim for $494.67.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 20, 2017Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC (2017 NY Slip Op 50039(U))
Reported in New York Official Reports at Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC (2017 NY Slip Op 50039(U))
[*1]| Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC |
| 2017 NY Slip Op 50039(U) [54 Misc 3d 132(A)] |
| Decided on January 6, 2017 |
| 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 January 6, 2017
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-495 Q C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 11, 2014, deemed from a judgment of the same court entered February 25, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the February 11, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,110.23.
ORDERED that the judgment is reversed, with $30 costs, the order entered February 11, 2014 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
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. By order entered February 11, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. MVAIC’s appeal from the February 11, 2014 order is deemed to be from the judgment entered pursuant thereto on February 25, 2014 (see CPLR 5512 [a]).
Plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident. Plaintiff contends that plaintiff, as assignee, exhausted its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). However, the letter from Dollar Rent A Car (Dollar), which identified the vehicle’s owner, Ride Share, LLC, as a licensee of Dollar and advised that coverage which would provide first-party no-fault benefits was not offered at the time the vehicle in question had been rented in New Jersey, is not dispositive. Rather, pursuant to Insurance Law sections 370 and 5107, the insurance provided by Dollar and/or Ride Share, LLC may, under appropriate circumstances, be deemed to include such coverage even if the policy in question failed to do so. Consequently, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see Hauswirth, 244 AD2d 528).
To the extent plaintiff argues that, pursuant to Insurance Law § 5221 (b) (6), MVAIC is required to pay plaintiff and then seek to recover from Dollar and/or Ride Share in a mandatory arbitration proceeding (see Insurance Law § 5105), based on the holdings in Matter of [*2]Acosta-Collado v Motor Veh. Acc. Indem. Corp. (103 AD3d 714 [2013]) and Hauswirth v American Home Assur. Co. (244 AD2d 528), we decline to reach such a result.
Accordingly, the judgment is reversed, the order entered February 11, 2014 is vacated, plaintiff’s motion for summary judgment is denied, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: January 06, 2017Healthway Med. Care, P.C. v Infinity Group (2017 NY Slip Op 50042(U))
Reported in New York Official Reports at Healthway Med. Care, P.C. v Infinity Group (2017 NY Slip Op 50042(U))
[*1]| Healthway Med. Care, P.C. v Infinity Group |
| 2017 NY Slip Op 50042(U) [54 Misc 3d 132(A)] |
| Decided on January 6, 2017 |
| 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 January 6, 2017
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2015-883 Q C
against
Infinity Group, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered March 12, 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 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 on the ground that, upon the application of Pennsylvania law, there was a lack of coverage due to the rescission, ab initio, of the automobile insurance policy at issue. By order entered March 12, 2015, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. We note that no issue is raised on appeal regarding the applicability of Pennsylvania law.
It is uncontroverted that the insured, who is also plaintiff’s assignor, stated on her application for the Pennsylvania automobile insurance policy, effective July 20, 2011 through January 20, 2012, that, among other things, she resided in Pennsylvania, the vehicle was garaged at the same address at which the insured resided, the vehicle was primarily being used in Pennsylvania for commercial use, and she would not use the insured vehicle to commute to New York more than three times per month. On September 15, 2011, the insured, while driving the insured vehicle, was involved in an automobile accident in the Bronx, New York. In support of its cross motion for summary judgment dismissing the complaint, defendant argued, among other things, that after it had discovered that the assignor, in fact, resided in the Bronx and garaged the vehicle on the street in the Bronx, defendant retroactively rescinded the insurance policy pursuant to Pennsylvania law (see Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]; Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]).
As defendant set forth facts demonstrating that it had rescinded the insurance policy, ab initio, in accordance with Pennsylvania law, defendant established its prima facie entitlement to summary judgment dismissing the complaint, which showing plaintiff failed to rebut (see Compas Med., P.C. v Infinity Group, 46 Misc 3d 146[A], 2015 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). We note that those issues plaintiff raised for the first time on appeal are unpreserved for appellate review and have not been considered by this court (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Accordingly, the order is affirmed.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 06, 2017Alleviation Med. Servs., P.C. v Hertz Co. (2017 NY Slip Op 50046(U))
Reported in New York Official Reports at Alleviation Med. Servs., P.C. v Hertz Co. (2017 NY Slip Op 50046(U))
[*1]| Alleviation Med. Servs., P.C. v Hertz Co. |
| 2017 NY Slip Op 50046(U) [54 Misc 3d 132(A)] |
| Decided on January 6, 2017 |
| 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 January 6, 2017
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2015-2428 K C
against
Hertz Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 5, 2014. The order denied 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 granted.
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 defendant had not received written notice of the accident within 30 days of its occurrence (see 11 NYCRR 65-2.4). By order entered December 5, 2014, the Civil Court denied defendant’s motion.
The affidavit of defendant’s claims adjuster established 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 plaintiff’s claim on the ground that written notice of the accident had not been submitted to defendant within 30 days of its occurrence (see 11 NYCRR 65-2.4 [b]). The denial of claim form further advised plaintiff that late notice would be excused if reasonable justification for the failure to give timely notice was provided (see 11 NYCRR 65-2.4 [b]). As defendant established its prima facie entitlement to judgment as a matter of law (see TAM Med. Supply Corp. v Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see also Medical Careworks, P.C. v American Tr. Ins. Co., 36 Misc 3d 130[A], 2012 NY Slip Op 51281[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]), the burden shifted to plaintiff to demonstrate a triable issue of fact.
In opposition, plaintiff did not proffer any proof, but merely speculated, in an affirmation of counsel, that defendant might have learned of the accident in another timely manner prior to its receipt of the untimely written notice. In support of its opposition, plaintiff cited 11 NYCRR 65-3.4 (a) but failed to demonstrate how this regulation would warrant a different result. Furthermore, despite plaintiff’s having been informed, in the denial of claim form, that it could provide reasonable justification for its failure to provide timely written notice (see 11 NYCRR [*2]65-2.4 [b]), plaintiff did not present any evidence that it had availed itself of the opportunity to do so.
Plaintiff argues that its NF-3 form, which was for services rendered on September 15, 2011, and which defendant admitted to having received on October 5, 2011, constituted timely written notice of the July 31, 2011 accident at issue. However, since plaintiff’s NF-3 form was not submitted within the 30-day time period following the accident, it was untimely in any event, and we need not pass upon the question of whether the submission of an NF-3 form is sufficient to satisfy the 30-day written notice requirement of 11 NYCRR 65-2.4 (b).
In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact (see TAM Med. Supply Corp. v Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U]; Ukon Med. Care, P.C. v Clarendon Natl. Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52176[U]; Jamaica Med. Supply, Inc. v NY City Tr. Auth., 36 Misc 3d 150[A], 2012 NY Slip Op 51660[U]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Solomon and Elliot, JJ., concur.
Decision Date: January 06, 2017City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))
Reported in New York Official Reports at City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hereford Insurance Company, 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 granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident which allegedly occurred on February 13, 2013. By order entered May 28, 2015, the Civil Court granted defendant’s motion.
In support of its summary judgment motion, defendant submitted, among other things, the transcript of the examination under oath of the driver of the insured vehicle. Contrary to plaintiffs’ contention, this transcript was properly considered by the Civil Court because, although it was not signed by the driver, it was certified (see Zalot v Zieba, 81 AD3d 935 [2011]; cf. Lifex Med. Care, P.C. v Safeco Natl. Ins. Co., 32 Misc 3d 126[A], 2011 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). During his examination under oath, the driver testified that he had rented the insured vehicle, which he drove as a livery vehicle, that the assignors had been passengers in his vehicle on February 13, 2013, and that the vehicle had not been involved in an accident on that date. Also, after the passengers in his vehicle called the police and reported that an accident had taken place, the driver told the responding police officer that there had been no accident.
Moreover, contrary to plaintiffs’ contention on appeal, the doctrine of collateral estoppel does not apply in the case at bar since plaintiffs failed to show that the identical coverage issue was necessarily decided in the prior actions to which plaintiffs referred, that such determinations are decisive of the present action, and that there was a full and fair opportunity to contest the issue of coverage in the prior actions (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 665-666 [1990]). Plaintiffs’ remaining contentions lack merit.
In view of the foregoing, defendant established its prima facie entitlement to summary [*2]judgment dismissing the complaint by showing that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and plaintiffs failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Pesce, P.J., Solomon and Elliot, JJ., concur.
Decision Date: January 05, 2017