Reported in New York Official Reports at New York City Tr. Auth. v GEICO Gen. Ins. Co. (2014 NY Slip Op 24356)
| New York City Tr. Auth. v GEICO Gen. Ins. Co. |
| 2014 NY Slip Op 24356 [46 Misc 3d 706] |
| September 30, 2014 |
| Cohen, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, March 11, 2015 |
[*1]
| New York City Transit Authority, Petitioner, v GEICO General Insurance Company, Respondent. |
Civil Court of the City of New York, New York County, September 30, 2014
APPEARANCES OF COUNSEL
Jones Jones LLC, New York City (Agnes Neiger of counsel), for petitioner.
Law Office of Ricky J. Lucyk, Woodbury (Evan Przebowski of counsel), for respondent.
{**46 Misc 3d at 707} OPINION OF THE COURT
The decision/order on this motion is as follows: Petitioner’s motion to vacate is granted and respondent’s cross motion to confirm is denied.
On December 23, 2013, petitioner filed its petition under article 75 of the CPLR to vacate an award made by arbitrator Mavis Thomas on September 24, 2013. In its papers, petitioner argued that the award made by the arbitrator to respondent was improper because the arbitrator exceeded its power in violation of CPLR 7511 (b). On March 3, 2014, respondent filed its cross motion pursuant to CPLR 7510 to confirm the arbitrator’s award and argued that the arbitrator’s determination was proper as it acted within its permitted discretion.
The facts before the court are not in dispute. Petitioner is a public benefit corporation under the laws of the State of New York and is self-insured. On October 1, 2010, a bus operated by petitioner was involved in a three-car motor vehicle accident with Christina McNamara (subrogor) and Michael Castelluccio. Nonparty Castelluccio was insured by respondent, which provided no-fault benefits to subrogor. In January 2011, subrogor commenced a personal injury action (action No. 1) naming petitioner, Eli Riviera (petitioner’s bus operator) and Michael Castelluccio as defendants. On September 22, 2011, respondent filed for arbitration seeking reimbursement from petitioner for the no-fault benefits paid on behalf of subrogor. While waiting for the resolution of action No. 1, the arbitration proceeding was adjourned on two different occasions. On January 9, 2013, after trial in action No. 1, a jury found, by unanimous verdict, that Eli Riviera was 0% responsible for the motor vehicle accident and that Michael Castelluccio was 100% responsible for the motor vehicle accident. Petitioner and Eli Riviera were found not liable for subrogor’s injuries and were dismissed from the action. An attorney for subrogor served the proposed judgment on petitioner.{**46 Misc 3d at 708}
On September 24, 2013, petitioner and respondent appeared for the arbitration proceeding. For reasons not explained to the court, neither side informed the arbitrator of the jury’s verdict, nor listed any documentation relating to the verdict as evidence in the arbitration. At the hearing, petitioner sought an adjournment to provide the arbitrator with the jury verdict, but its application was denied and the arbitrator refused to consider the jury verdict. The arbitrator’s rationale was that since petitioner had sufficient time to provide the jury verdict as evidence and only did so “at the table,” it would not consider the jury verdict.
Petitioner argues that the decision of the arbitrator should be vacated because it is irrational, arbitrary, and capricious and constitutes the wrong application of relevant law. Specifically, petitioner asserts that by refusing to accept the decision of the jury, the arbitrator exceeded its power pursuant to CPLR 7511 and that the decision by the jury had preclusive effect on the arbitration and is res judicata as to petitioner’s liability and the failure to give preclusive effect to the jury verdict is grounds for the vacatur. Petitioner further contends that the arbitrator’s failure to grant an adjournment for petitioner to formally submit the jury verdict into evidence and the arbitrator’s subsequent failure to even consider the jury verdict constituted an abuse of discretion. Respondent argues that pursuant to the rules of the arbitration, the arbitrator was within its discretion to refuse an adjournment and to refuse to consider the jury verdict first produced at the hearing despite being available for nine months, and that the jury verdict was not binding on the arbitration.
The arbitration in this matter was mandatory as required by statute (see Insurance Law § 5105 [requiring that the sole remedy of actions between insurers involving the recovery of personal injury benefits paid pursuant to the no-fault rules is mandatory arbitration]). In cases of compulsory arbitration, due process requires “closer judicial scrutiny of the arbitrator’s determination” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Under CPLR article 75 a review should include whether the award is supported by evidence or other basis in reason (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Awards after mandatory arbitration, upon judicial review, are to be measured according to whether they are rational or arbitrary and capricious (Caso v Coffey, 41 NY2d 153 [1976]). In a mandatory arbitration, the arbitrator’s power derives from the statute which mandates{**46 Misc 3d at 709} upon the parties the arbitration. Consequently, the arbitrator cannot make its decisions with less than substantial evidence, without reasonable basis or in disregard of applicable rules of law (Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]).
“Res judicata serves to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same ‘factual grouping’ or ‘transaction’, and which should have or could have been resolved in the prior proceeding” (Braunstein v Braunstein, 114 AD2d 46, 53 [2d Dept 1985]; see also Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258 [2d Dept 2010]; Mew Equity LLC v Sutton Land Servs., L.L.C., 37 Misc 3d 1225[A], 2012 NY Slip Op 52161[U] [Sup Ct, Kings County 2012]). Conversely,
“[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in the prior action or proceeding, and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Breslin Realty Dev. Corp., 72 AD3d at 263).
Here, respondent’s subrogor and petitioner litigated, in an earlier court proceeding, the very same claim heard by the arbitrator. Specifically, a court heard the very same facts relating to subrogor’s claim that petitioner was liable for her injuries. A jury evaluated these facts and made the determination that someone other than petitioner was 100% liable for subrogor’s injuries. Hence, the claim brought by respondent in the arbitration, standing in the shoes of subrogor, arose out of the same factual transaction and had been fully litigated and determined by a court prior to the arbitration hearing. The arbitrator’s decision to not give preclusive effect to a final determination made by a court was irrational (Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644 [1st Dept 2011]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420 [1st Dept 1998] [based on the principle of res judicata, an arbitrator exceeds his power by conducting a hearing and making an award premised on the same claim as a prior award]; see also Matter of Pinnacle Envt. Sys. [Cannon Bldg. of Troy Assoc.], 305 AD2d 897 [3d Dept 2003] [second arbitration was barred by the doctrine of res judicata as it involved the same parties and precisely the same issues]; Matter of State of{**46 Misc 3d at 710} N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269 [3d Dept 2007]; Matter of New York Tel. Co. v State Farm Ins. Co., 137 Misc 2d 376 [Sup Ct, NY County 1987]). At bar, since the claim against petitioner had been litigated and a court had rendered a final judgment after jury verdict, by not giving this final judgment and verdict res judicata effect, the arbitrator disregarded applicable rules of law.
This case is distinguished from Matter of Falzone (New York Cent. Mut. Fire Ins. Co.) (15 NY3d 530 [2010]) in several respects. In Falzone, the Court of Appeals held that an arbitrator’s failure to apply collateral estoppel to preclude a determination of an issue resolved in a prior arbitration proceeding was not subject to review by the Court (id. at 535). This case involves the application of res judicata while Falzone involved the application of collateral estoppel. In Falzone, the Court specifically distinguished between the two doctrines and wrote “[s]ince the instant claim involves the doctrine of collateral estoppel, not res judicata, petitioner’s reliance on Appellate Division decisions barring subsequent arbitrations on res judicata grounds is misplaced” (id.). To allow an entire claim involving the same facts and arguments to be re-litigated for a second time is inequitable, a waste of resources and contrary to well-established principles of law. Second, in Falzone the arbitration between the parties was voluntary and not subject to the heightened standard and “more-exacting” review that the Court must undertake following mandatory arbitration. Using the lesser review standard, the Falzone court was only “applying this State’s well-established rule that an arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (id. at 534). Third, in Falzone the arbitrator declined to give preclusive effect to another arbitrator’s decision. In the instant case, the arbitrator declined to give preclusive effect, or even consider, a final judgment reached by a jury, after trial.
Although neither party provided any satisfactory reason as to why the arbitrator was not informed of the trial court verdict until the day of the arbitration, considering that the arbitration was stayed, specifically because of the ongoing court action, the arbitrator’s decision to refuse to consider the verdict was simply irrational. It is therefore ordered that the petition to vacate arbitrator Mavis Thomas’ determination of September 24, 2013 is granted; and it is also ordered that the matter is remanded back to arbitration in accordance with CPLR 7511 (d) to be{**46 Misc 3d at 711} heard by the same arbitrator; and it is also ordered that respondent’s cross motion is denied.
Reported in New York Official Reports at Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. (2014 NY Slip Op 51407(U))
| Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. |
| 2014 NY Slip Op 51407(U) [44 Misc 3d 144(A)] |
| Decided on September 22, 2014 |
| Appellate Term, First 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 September 22, 2014
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570272/14
against
Kemper Independence Insurance Company, Defendant-Appellant.
Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), entered August 9, 2013, as denied, in part, its motion for summary judgment dismissing the complaint, and, upon searching the record, granted summary judgment in favor of plaintiff in the principal sum of $2,175.
Per Curiam.
Order (James E. d’Auguste, J.), entered August 9, 2013, insofar as appealed from, affirmed, with $10 costs.
We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.
In the absence of a cross appeal by plaintiff, the propriety of the dismissal of plaintiff’s remaining claim is not properly before us.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 22, 2014
Reported in New York Official Reports at New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)
| New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. |
| 2014 NY Slip Op 06188 [120 AD3d 1322] |
| September 17, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| New York Hospital Medical Center of Queens, as
Assignee of Jose Tacuri, Appellant, v Nationwide Mutual Insurance Company, Respondent. |
Joseph Henig, P.C., Bellmore, N.Y., for appellant.
Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Mickei Milton of counsel), for respondent.
In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), dated January 13, 2014, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 25, 2013, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the principal sum of $25,621.20, and pursuant to CPLR 3012 (d) to extend its time to appear and to compel the plaintiff to accept its late notice of appearance.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696 [2011]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d 791, 792 [2011]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]).
Here, the defendant established a reasonable excuse through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons with notice to its attorney (see Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 696; Perez v Travco Ins. Co., 44 AD3d 738, 739 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Furthermore, the defendant demonstrated a potentially meritorious defense to the action. Accordingly, in light of the foregoing, as well as the public policy favoring the resolution of cases on the merits, the defendant’s lack of willfulness, and the absence of any prejudice to the plaintiff, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment, to extend its time to appear, and to compel the plaintiff to accept its late notice of appearance (see CPLR 3012 [d]; NYU-Hospital for Joint Diseases v Praetorian Ins. Co., 98 AD3d 1101, 1102 [2012]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 697). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.
Reported in New York Official Reports at Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 51391(U))
| Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co. |
| 2014 NY Slip Op 51391(U) [44 Misc 3d 143(A)] |
| Decided on September 16, 2014 |
| Appellate Term, First 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 September 16, 2014
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
13-453
against
New York Central Mutual Fire Ins. Co. Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered July 29, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Mitchell J. Danziger, J.), entered July 29, 2013, reversed, with $10 costs, motion denied and complaint reinstated.
The action, seeking recovery of assigned first-party no-fault benefits arising from a series of epidural injections administered by plaintiff in its Hackensack, New Jersey office, is not ripe for summary dismissal. Defendant’s moving submission below relied exclusively on a worker’s compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant’s moving papers was any discussion of the proper “geographic location” of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the “prevailing fee” were such location determined to be in New Jersey. Defendant’s attempts to rectify these deficiencies in its reply papers below were untimely (see e.g. Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 AD3d 451, 452 [2012]) and, even if defendant’s newly raised arguments were considered, they create rather than eliminate genuine triable issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: September 16, 2014
Reported in New York Official Reports at Hempstead Regional Chiropractic, PC v Allstate Ins. Co. (2014 NY Slip Op 24259)
| Hempstead Regional Chiropractic, PC v Allstate Ins. Co. |
| 2014 NY Slip Op 24259 [45 Misc 3d 746] |
| September 8, 2014 |
| Hirsh, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 26, 2014 |
[*1]
| Hempstead Regional Chiropractic, PC, as Assignee of Cecilio Pablo-Rodriguez, Plaintiff, v Allstate Insurance Company, Defendant. |
District Court of Nassau County, First District, September 8, 2014
APPEARANCES OF COUNSEL
Robert P. Macchia & Associates for defendant.
Israel, Israel & Purdy, LLP for plaintiff.
{**45 Misc 3d at 747} OPINION OF THE COURT
Defendant moves for summary judgment in this action to recover first-party no-fault benefits.
Background
This motion raises the issue of whether a no-fault carrier that has previously denied the eligible injured party (EIP) all further no-fault benefits based upon an independent medical examination (IME) can request the EIP appear for an examination under oath (EUO) when a medical provider submits claims for payment of no-fault benefits for medical treatment provided after the IME cutoff.
Cecilio Pablo-Rodriguez was injured in a motor vehicle accident that occurred on January 9, 2011. He received treatment for the injuries sustained in the motor vehicle accident from Hempstead Regional Chiropractic, P.C. and Orthomed Care, P.C.
He assigned his right to receive no-fault benefits for the treatment provided by Hempstead to Hempstead and for treatment provided by Orthomed to Orthomed which submitted the claims for treatment provided to Rodriguez to defendant Allstate Insurance Company for payment.
The claims involved in this action and motion involve chiropractic treatment provided to Rodriguez by Hempstead during{**45 Misc 3d at 748} the period March 12, 2012 through April 23, 2012 and physical therapy treatment provided to Rodriguez by Orthomed during the period March 26, 2012 through April 23, 2012.
The parties do not dispute the claims were timely filed and timely denied.
The denials for the claims involved in this action all denied the claims on the grounds Rodriguez failed to appear for an EUO scheduled for July 28, 2011, August 15, 2011 and September 19, 2011. The denials also stated the claims were being denied because the amounts billed were not in accordance with the no-fault fee schedule and on the grounds of any previously issued denial.
By letter dated July 15, 2011, Allstate’s attorney requested Rodriguez appear for an EUO on July 28, 2011.
By letter dated July 27, 2011, Rodriguez’s attorney advised the attorney for
Allstate Rodriguez would not be produced for an EUO on July 28, 2011 or at any other time because all no-fault benefits had previously been denied based upon an IME.[FN*] The letter further stated Rodriguez would not be produced because there was already pending litigation. The letter stated if there was information relevant to the claim that was needed other than an EUO, Rodriguez’s attorney would work with Allstate’s attorney in obtaining or providing the information.
Despite the letter from Rodriguez’s attorney advising Allstate’s attorney Rodriguez would not be produced for an EUO on July 28, 2011, Allstate’s attorney sent two additional letters, one dated July 28, 2011 requesting Rodriguez appear for an EUO on August 15, 2011 and one dated September 2, 2011 requesting Rodriguez appear for an EUO on September 19, 2011.
The parties admit Rodriguez did not appear for the EUO on any of the scheduled dates.
Allstate asserts it is entitled to summary judgment because it timely denied the claims on the grounds Rodriguez failed to appear for an EUO.
Hempstead and Orthomed assert since all no-fault benefits had been denied based upon the IME cutoff, the request for an{**45 Misc 3d at 749} EUO was abusive and improper. Since Allstate had already denied Rodriguez all further no-fault benefits based upon an IME, Allstate did not have an objective basis to request Rodriguez appear for an EUO. Hempstead and Orthomed further assert since Rodriguez’s attorney timely objected to Rodriguez being produced for an EUO Allstate must demonstrate it had an objective basis for seeking to conduct an EUO.
Discussion
A person making application for no-fault benefits “may reasonably be required [to] submit to examinations under oath” upon request of the no-fault insurance carrier. (11 NYCRR 65-1.1 [d] [Section I, Conditions, Proof of Claim].)
Appearance at an EUO is a condition precedent to coverage. (IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005 [2d Dept 2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006]; Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51142[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014].) A carrier may deny all claims for no-fault benefits after a party fails to appear for an EUO if the carrier issues a timely denial asserting the failure to appear for the EUO as the basis of the denial. (Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; cf. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011].)
Allstate timely denied the claims on the grounds Rodriguez failed to appear for an EUO.
[1] However, Rodriguez objected to the EUO when it was demanded. (See Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011].) When the party who is requested to appear for an EUO timely objects to appearing for the EUO, the carrier must establish it had an objective standard for requesting the EUO. (See Hillside Open MRI, P.C. v Allstate Ins. Co., 44 Misc 3d 132[A], 2014 NY Slip Op 51143[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; 11 NYCRR 65-3.5 [e].) Allstate offers no explanation or objective basis for its request Rodriguez appear for an EUO after Rodriguez’s attorney objected to the EUO.
A carrier can assert multiple grounds for denying a no-fault claim. A carrier may assert both precludable and non-precludable defenses to a no-fault claim.
[2] {**45 Misc 3d at 750}Plaintiff’s assertion that a carrier cannot request an EIP appear for an EUO after the EIP’s medical benefits have been denied based upon an IME is without merit. The relevant provisions of the no-fault regulations (11 NYCRR 65-1.1) do not limit or condition in any way a carrier’s right to request an EUO. The only conditions on an EUO are it must be conducted at a time and place reasonably convenient to the applicant and the applicant must be advised that he or she will be reimbursed for any loss of earnings or travel expenses incurred in complying with the request. (11 NYCRR 65-3.5 [e].) The no-fault law and regulations do not prevent a carrier that has denied no-fault benefits based upon an IME from requesting an EUO of the EIP if the EIP continues to receive medical treatment after the IME cutoff and the provider continues to submit the no-fault claims for payment.
An IME cutoff is not a complete defense to the action. The testimony of the physician, chiropractor or other medical provider who performed the IME may be sufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim. (Amato v State Farm Ins. Co., 40 Misc 3d 129[A], 2013 NY Slip Op 51113[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013].) The testimony of the medical professional that performed the IME could be rebutted by testimony adduced on cross-examination and/or by testimony from a rebuttal witness that meaningfully refers to and rebuts the findings and conclusions of the medical professional who performed the IME. (See Promed Durable Equip., Inc. v GEICO Ins., 41 Misc 3d 19 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Baybenson Chiropractic, LLC v Clarendon Natl. Ins., 39 Misc 3d 141[A], 2013 NY Slip Op 50756[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013].)
The testimony obtained from the EIP at a post IME cutoff EUO could be relevant to the defense of the claim submitted after the IME cutoff. The carrier could choose to pay the claims submitted after the IME cutoff based upon the testimony of the EIP at an EUO.
If a party wants to contest or object to a request for an EUO, it must do so when the EUO request is made. (Hillside Open MRI, P.C. v Allstate Ins. Co.; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U].) Since Rodriguez contested Allstate’s request for an EUO when it was made, the issue of whether Allstate had an objective basis for requesting an EUO has been preserved. (See Victory Med.{**45 Misc 3d at 751} Diagnostics, P.C. v Nationwide Prop. & Cas. Ins. Co., 36 Misc 3d 568 [Nassau Dist Ct 2012].)
Since Rodriguez objected to the request for the EUO and Allstate has not established it had an objective basis for requesting Rodriguez appear for an EUO, defendant’s motion for summary judgment is denied.
Footnotes
Footnote *:Neither party provided the court with copies of any claims relating to treatment provided by either Hempstead or Orthomed before the claims at issue in this action, copies of the denials issued in connection with those claims or a copy of the IME report that may have served as the basis of the denial of prior claims.
Reported in New York Official Reports at Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))
| Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. |
| 2014 NY Slip Op 51290(U) [44 Misc 3d 140(A)] |
| Decided on August 22, 2014 |
| Appellate Term, First 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 August 22, 2014
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan,JJ.
570045/14
against
Unitrin Advantage Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered November 26, 2012, which conditionally granted defendant’s motion to dismiss the complaint unless plaintiff complied with defendant’s notice of deposition.
Per Curiam.
Order (Robert R. Reed, J.), entered November 26, 2012, reversed, with $10 costs, and defendant’s motion denied.
The defendant-insurer failed to demonstrate entitlement to depositions relating to its excessive treatment and fee schedule defenses, in the absence of any affirmative showing that it preserved those defenses by timely denying plaintiff’s 2006 first-party no-fault claim (see Triangle R. Inc. v Progressive Ins. Co., 36 Misc 3d 151[A], 2012 NY Slip Op 51685[U][App Term, 1st Dept 2012]). In view of the foregoing, we need not and do not address plaintiff’s alternative argument that the noticed depositions were otherwise unwarranted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: August 22, 2014
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51324(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 (Barry A. Schwartz, J.), entered February 28, 2013. The order denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.
ORDERED that the order is affirmed, with $25 costs.
Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and
defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.
After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion
for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.
Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.
Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]). While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))
| Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. |
| 2014 NY Slip Op 51322(U) [44 Misc 3d 142(A)] |
| Decided on August 20, 2014 |
| 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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-653 K C
against
National Liability & Fire Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary
judgment dismissing the complaint on the ground that plaintiff’s assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto.
The papers submitted by defendant 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2014 NY Slip Op 51321(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 (William A. Viscovich, J.), entered January 18, 2013. The order implicitly 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.
Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.
The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51315(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 3, 2012, deemed from a judgment of the same court entered September 28, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 3, 2012 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion to, among other things, disqualify defendant’s law firm from representing defendant in this action, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court entered August 3, 2012 granting defendant’s motion and denying plaintiff’s cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
As to defendant’s motion for summary judgment, we find that, contrary to plaintiff’s arguments on appeal, defendant submitted sufficient proof to show that the EUO scheduling letters and the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). Therefore, and as plaintiff’s remaining contentions with respect to this motion lack merit, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
In light of the foregoing, plaintiff’s request that defendant’s law firm be disqualified based [*2]on the attorney/witness rule is “moot since, summary judgment having been granted, there will be no trial of this matter” (Quiros v Mount St. Michael Academy, 303 AD2d 185, 186 [2003]; see also Lombino v Town Bd. of Town of Rye, 206 AD2d 462 [1994]). In any event, plaintiff failed to establish that disqualification of defendant’s law firm was warranted (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; see also e.g. Magnus v Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608 [2004]; Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]; Matter of Cowen & Co. v Tecnoconsult Holdings, 234 AD2d 86 [1996]; Talvy v American Red Cross in Greater NY, 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Solomon and Elliot, JJ., concur.
Decision Date: August 20, 2014