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

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered December 14, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff argues that the affidavits submitted by defendant failed to establish that defendant’s employees possessed sufficient personal knowledge to demonstrate that defendant’s denial of claim form had been timely mailed. This argument is improperly raised for the first time on appeal.

Plaintiff further argues that one of the affidavits submitted by defendant in order to prove that the denial of claim form had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008] Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). In any event, such defect is not fatal, as plaintiff was not prejudiced thereby (Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Rivers v Birnbaum, 102 AD3d 26, 44 [2012]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 20, 2011. The order denied plaintiff’s unopposed motion for leave to enter a default judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court denied plaintiff’s motion, finding that plaintiff had not established its prima facie case.

Plaintiff’s moving papers failed to establish either that defendant failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., ___ AD3d ___, 2013 NY Slip Op 08430 [2d Dept 2013]), or that defendant 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]). As a result, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Terence P. Murphy, J.), entered June 1, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands.

ORDERED that the order is reversed, without costs, defendant’s motion for summary judgment dismissing the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion on the ground that defendant had failed to respond to plaintiff’s discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). Plaintiff also cross-moved to compel defendant to provide the requested discovery (see CPLR 3124). The District Court granted defendant’s motion and denied plaintiff’s cross motion.

“CPLR 3212 (f) provides, in relevant part, that a court may deny a motion for summary judgment should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated. This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Jones v American Commerce Ins. Co., 92 AD3d 844, 845 [2012] [internal quotation marks and citations omitted]). Here, in support of its motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, defendant alleged that it had timely denied plaintiff’s claims on that ground based on two peer review reports. In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received, the medical documentation underlying defendant’s decision to deny the claims based on lack of medical necessity, and that plaintiff needed such discovery to oppose defendant’s motion (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] compare Elmont Open MRI & Diagnostic Radiology, P.C. v Travelers Indem. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52223[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant’s motion should have been denied with leave to renew following discovery, and plaintiff’s cross motion granted (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., ___ Misc 3d ___[A], 2013 NY Slip Op 52246[U]).

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing [*2]the complaint is denied with leave to renew after the completion of discovery, plaintiff’s cross motion to compel defendant to respond to plaintiff’s discovery demands is granted, and defendant is directed to serve responses to plaintiff’s discovery demands within 60 days of the date of this decision and order.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 10, 2014

Civil Court of the City of New York, Kings County

064253-11KI

Attorneys for Plaintiff:

The Rybak Firm, PLLC.

1506 Kings Highway, 2nd Fl

Brooklyn, NY 11229

Attorney for Defendant

Conway, Farrell, Curtin & Kelly, P.C

48 Wall Street

Woodbury, New York 10005

Katherine A. Levine, J.

Plaintiff Canarsie Chiropractic, P.C. (“plaintiff” or “Canarsie Chiropractic”), a medical services company, brings this action pursuant to Insurance Law § 5106(a) to recover monies for medical services provided to its assignor Harry Brenton (“assignor” or “Brenton”), a New York resident, for injuries he allegedly suffered in an automobile accident in New York. The car’s owner, Adama Ndiaye (“Ndiaye”), obtained the insurance policy for the car at issue, as well as for additional cars he owned in Michigan from Defendant Auto Club Insurance Association AAA Michigan (“Auto Club” or “defendant”). Per the policy, the cars were to be driven and principally garaged in that state. [*2]

After several vehicles that Ndiaye owned and insured with Auto Club were involved in auto accidents in New York between 2007 and 2009, the defendant initiated its investigation into Ndiaye’s place of residence. The investigation revealed that Ndiaye was in fact operating a commercial taxi/livery cab service in New York with the insured vehicles, in violation of the insurance policy term mandating that the vehicles be garaged in Michigan. cab service in New York and that all the vehicles were principally garaged in New York. Auto One thereupon obtained a default judgment from the Michigan Circuit Court, Auto Club Ins. Co. v Adama Ndiaye, C/A No: 10-758-CK (Hon. Timothy P. Connors) declaring the policy void ab initio and that plaintiff Auto One was “neither bound by, nor liable to [Ndiaye] or any other person or entity, whether known or unknown, under any contractual provision [of the policy].”

Auto Club moves for summary judgment on the ground that Michigan law applies, since the underlying no fault policy was procured and issued in Michigan to a Michigan resident. Plaintiff opposes the motion and argues that New York law applies since Auto One does business in New York. A conflict of law issue exists since Michigan law voids the policy ab initio when there is fraud in the procurement of the policy where as New York law does not permit an insurance policy to be cancelled retroactively. See, Mtr. of Allstate Ins. Co., (Stolarz), 81 NY2d 219 (1993); Jiminez v. Monadnock Constr., Inc., 109 AD3d 514 (2d Dept. 2012).

In Michigan, the various doctrines of fraud do not require the party asserting fraud to have investigated all assertions and representations made by its contracting partner as a prerequisite to establishing fraud. Titan Ins. Co. v. Hyten, 491 Mich. 547, 557 817 N.W.2d 562 (2012). Rather, the party asserting fraud has a plethora of legal and equitable remedies, including the right to “retroactively avoid contractual obligations through traditional remedies such as cancellation, rescission or reformation.” Id at 558. Therefore, Michigan has long held that an insurer can rescind a policy and declare it void ab initio as against an insured who seeks benefits when the insured procured the policy through fraud, even where the fraud was easily ascertainable. Titan Ins. Co. Supra, 491 Mich. At 555. See also Jackimowicz v. Citizens Ins. Co. of America, 2011 Mich. App. LEXIS 396 (Mich. Ct. App. 2011); Hammoud v. Metropolitan Property and Casualty Ins. Co., 222 Mich. App. 485, 488, 563 N.W.2d 716, 718 (1997).

In Titan, supra, the Michigan Supreme Court definitively ruled that an insurer could avail himself of these equitable principles to avoid liability under an insurance policy on the ground of fraud in the procurement notwithstanding that “the fraud might have been easily ascertainable…and the claimant was a third party.” 491 Mich. At 562. The Court reversed precedent which found that the public policy of the state recognizing the right to reimbursement under the no fault law trumped the common law which enabled insurers to obtain traditional forms of relief when they were victims of fraud and that third parties needed to protected. Id at 565- 569. Rather, “(t)hird-party victims of automobile accidents have a variety of means of recourse under the no-fault act (including tort actions), and it is to those means that such person [*3]must look.” Id at 565.

In New York, both the common law and the Insurance Law permit an insurance carrier to rescind and or void an insurance policy where a material misrepresentation was made at the time of the procurement of the policy. Stracar Medical Services v. Nationwide Mut. Ins. Co., 2013 NY Slip Op 50633(U), 39 Misc 3d 1216(A) (Civil Ct., Kings Co. 2013). See, Kiss Construction NY Inc. v. Rutgers Casualty Ins. Co., 61 AD3d 412 (1st Dept. 2009); Ins. Law §3105. However, VTL §313 (1) (a), which prohibits the termination of a contract of insurance until after the insurer mails a notice of termination to the insured, “supplants an insurance carrier’s common law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively.” Liberty Mut. Ins. Co. v. McClellan, 127 AD2d 767 (2d Dept. 1987). See, Mtr. Of Met Life Auto & Home v. Aguedelo, 8 AD3d 571, 572 (2d Dept. 2004). This section thus “places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence.” Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000). However, only innocent third parties who are injured are protected and “not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured’s no-fault benefits.” Mtr of Met life, supra, 12 Misc 3d at 11-12.

The insurance carrier may assert as an affirmative defense that the insured misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured. A.B. Medical Services PLLC v. Commercial Mutual Ins. Co., 12 Misc 3d 8,11-12 (App. Term, 2d Dept. 2006). The defense of fraudulent procurement of an insurance policy is nonwaivable and hence exempt from the 30-day procurement rule, and may be asserted as against health care providers who seek to recover assigned benefits from the insured. AB Medical Services, supra, 12 Misc 3d at 11-12. The insurance company may also bring an action against its insured to recover any losses it incurred by paying benefits under the policy to the innocent third party. Mtr. Of Ins. Co. v. Kaplan, 274 AD2d 293, 298 (2d Dept. 2000).

Here, the assignor was an innocent third party as he was a passenger in a livery car owned by the insured and played no role in the insured’s fraudulent misrepresentation. Therefore, plaintiff health care provider, which stepped into the shoes of the assignor, is an innocent third party in the instant matter.

Traditionally, conflict of law questions relating to contracts were resolved by application of the law of the jurisdiction where the contract was made or was to be performed.” Mtr. of Eagle Ins. Co v. Singletary, 279 AD2d 56, 59 (2nd Dept. 2000). New York has long recognized the use of center of gravity or groupings of contacts as the appropriate analytical approach to choice of law questions in contract cases. Mtr of Midland Ins. Co., 16 NY3d 536 (2011) citing Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317, 319 (1994). This grouping of [*4]contacts approach establishes which State has the most significant relationship to the transaction and the parties, and allows that state “paramount control over the legal issues arising out of a particular factual context.” Mtr of Midland Ins. Co., supra, 16 NY3d at 543; Jiminez v. Monadnock Constr. Inc., 109 AD3d 514, 516 (2d Dept. 2013). Significant contacts include the place of contracting, negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties. Mtr. of Allstate Ins. Co. supra, 81 NY2d at 227; Jiminez, supra at 516; Mtr. Of Eagle Ins. Co. v. Singletary, 279 AD2d 56, 58-59 (2nd Dept. 2000).

In the context of liability insurance contracts, the courts look to the law of the state which the parties understood was to be the principal location of the insured risk. Mtr of Midland Ins. Co. supra 16 N.Y.3rdat 544; Eagle v. Singletary, supra, 279 AD3d at 59; Conflict of Laws § 193. The principle location of the insured risk will be deemed to be the state where the insured is incorporated, domiciled and has its principal place of business. Midland, supra, 16 NY2d at 544. In the case of a noncommercial vehicle insurance, the principal location of the insured risk is the place where the vehicle is to be principally garaged. Eagle Ins. Co., supra, at 57 citing Restatement [Second] of Conflict of Laws, § 193, comment c.

Applying this analytical framework to the facts, Michigan clearly had the most significant contacts. Defendant’s casualty claims representative averred that at the time Ndiaye procured the policy, he provided a Michigan address and stated that the four vehicles registered on his policy were to be garaged in that State. The subject insurance policy was negotiated in and issued to Ndiaye in Michigan and incorporated Michigan law. See, GEICO v. Nichols, 8 AD3d 564 (2d Dept. 2004) (retroactive cancellation of policy under Florida law permitted where the policy was issued in Florida to Florida residents for a vehicle registered in Florida and policy incorporated Florida law; the only connection to New York was that insured was driving car in NY at time of accident); Mtr of Eagle Ins. Co supra (retroactive cancellation of policy under Virginia law for fraudulent misrepresentation permitted where the policy was issued in Virginia to a Virginia resident for a vehicle garaged in Virginia, and the only connection to New York was that the accident occurred in NY and the injured passenger was a NY resident); Careplus Medical Supply Inc v. Selective Insurance Co of America, 25 Misc 3d 48 (App Term, 2d Dept. 2009) (New Jersey law governs where the policy was negotiated and entered into in New Jersey, the insureds lived in New Jersey, and the vehicle was garaged and registered in New Jersey; the only connection to New York was that the accident occurred there); R.E.G Flushing Medical v. Integon Nat. Ins. Co., 2011 NY Slip Op 50975(U), 31 Misc 3d 1234(A) (Dist. Ct., Nass. Co. 2011) (North Carolina law applies where policy was issued to insured in North Carolina, the policy listed a North Carolina address for the insured and the insured certified that his cars were garaged at the address listed).

Applying Michigan law, it is clear that the defendant properly cancelled the policy at issue because of fraud in its procurement. Plaintiff argues that even if Michigan Law applies, the [*5]motion cannot be granted because its out of state affidavit lacks a certificate of conformity required by RPL 299-a (1). This section mandates that an affidavit signed outside of the state by a foreign notary be accompanied by a certificate of conformity certifying that the manner in which the acknowledgment was taken conforms with New York law or other place where the acknowledgment was taken. The certificate must be made by an attorney admitted to practice in New York State who resides in the other jurisdiction, or by an attorney admitted to practice in the other jurisdiction, or any other person deemed qualified by any court of the State of New York. RPL ｧ 299-a (1).

Here, the Michigan notary of the public who notarized defendant’s affidavit does not fall within any of the categories allowed by RPL 299-a (1). Nevertheless, the absence of a valid certificate of conformity for an out-of-state affidavit is not a fatal defect and can be cured nunc pro tunc. Fredette v Town of Southampton, 95 AD3d 940, 941 (2nd Dept. 2012); Art of Healing Medicine, P.C. v. Amica Mutual Ins. Co., 2013 NY Slip Op 52014(U), 41 Misc 3d 141(A) (App. Term, 2nd Dept. 2013). Accordingly, the defendant is given 45 days from receipt of this decision to provide a certificate of conformity to this Court and the other side. Upon receipt of proper certificate, this Court will grant the motion for summary judgment and dismiss the case.

This constitutes the Decision and Order of the Court.

DATED: March 10, 2014

_____________________________

KATHERINE A. LEVINE

Acting Justice, Supreme Court

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 5, 2014

APPEARANCES OF COUNSEL

Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant.

Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.

Ordered that, on the court’s own motion, the notice of appeal from the amended decision dated September 15, 2010 is deemed a premature notice of appeal from so much of the judgment entered January 26, 2012 as awarded statutory prejudgment interest from August 7, 2008 (see CPLR 5520 [c]); and it is further ordered that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2001, based upon an accident that had occurred in 1998. It is undisputed that for the next seven years, no action was taken by either party. On August 7, 2008, plaintiff filed a notice of trial. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However,{**43 Misc 3d at 89} based on plaintiff’s delay of the case, the Civil Court held that statutory prejudgment interest would accumulate from the date plaintiff filed his notice of trial, on August 7, 2008. Plaintiff filed a notice of appeal from that decision, limited to the Civil Court’s decision to award interest from August 7, 2008. A judgment was subsequently entered, including interest commencing as of August 7, 2008 at a simple, not compound, rate. We deem the appeal to have been taken from so much of the judgment as awarded interest from August 7, 2008.

[1] First, contrary to plaintiff’s argument on appeal, defendant did prove the timely mailing of the denial. Where, as here, a provider does not commence the action within 30 days of receipt of the denial, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accumulate when the action is commenced (see Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d] [emphasis added]). In this case, plaintiff took no action for seven years. Plaintiff’s argument that defendant should be required to pay interest for that period because defendant could have attempted to move the case forward lacks merit. It is plaintiff who brought this action and plaintiff should not be rewarded for his years of inaction by receiving a windfall of interest (see Arzu v NYC Tr. Auth., 35 Misc 3d 210 [Civ Ct, Kings County 2012]; compare Igor Shtarkman Neurologist, P.C. v Allstate Ins. Co., 191 Misc 2d 76 [Nassau Dist Ct 2002]). Thus, in our opinion, the Civil Court properly held that the interest in this case should be awarded from August 7, 2008.

[2] On appeal, plaintiff also contends that interest should have been calculated at a compound, not simple, rate. However, the decision from which plaintiff appealed did not specify whether the interest awarded should be simple or compound, and the award of simple, rather than compound, interest is found only in the judgment, which was entered subsequent to the filing of the notice of appeal. Moreover, the notice of appeal limited the appeal to the court’s determination regarding the date on which interest would begin to accumulate. Therefore, the issue of whether the interest should be calculated at a simple or compound rate is not reviewable on this appeal. As this issue was not litigated below and as there has been no prior judicial determination of this question, plaintiff, if he be so advised, may move, pursuant to CPLR 5019 (a), to seek a correction of{**43 Misc 3d at 90} the interest in the judgment (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; see also former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Ops Gen Counsel NY Ins Dept No. 02-10-22 [Oct. 2002]).

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

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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 of fraudulent procurement of the insurance policy by virtue of the assignor’s misrepresenting the state in which the vehicle at issue was garaged. Plaintiff separately moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s motion.

The record indicates that plaintiff established its prima facie entitlement to summary judgment (see 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, 11th & 13th Jud Dists 2011]) and that defendant failed to demonstrate that it had timely denied plaintiff’s claim. With respect to defendant’s motion for summary judgment, although defendant contends that, in connection with the issuance of the insurance policy at issue, plaintiff’s assignor had misrepresented the state where the insured vehicle was garaged, defendant is precluded from asserting that defense in support of its motion and in opposition to plaintiff’s motion as it failed to establish that it had timely denied plaintiff’s claim on that ground (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011] cf. Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed, plaintiff’s motion is granted, defendant’s motion is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 16, 2012. The order denied defendant’s 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, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for an examination under oath (EUO).

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997] Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011] Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 17, 2012. The order granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

In this action to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on August 5, 2009. In August of 2010, the case was marked off the trial calendar, and in September of 2011, defendant moved to dismiss the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 on the ground that plaintiff had abandoned the case by failing to move to restore it to the trial calender within one year after it was stricken. Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126, on the ground that plaintiff had failed to provide requested disclosure. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

Contrary to defendant’s assertion, the Civil Court rule which governs actions stricken from the calendar (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14) has no provision for dismissing a complaint as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]). Thus, the Civil Court erred in dismissing the complaint on this ground.

Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126. Since the Civil Court did not address this branch of defendant’s motion, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 11, 2012. The order denied defendant’s motion to vacate a judgment and for leave to renew and reargue its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment.

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, among other things, plaintiff’s assignor had breached a condition of the policy by failing to appear for scheduled independent medical examinations. By order entered January 25, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that an affidavit submitted by defendant was inadmissible since the affiant’s signature was not notarized. A judgment awarding plaintiff the principal sum of $5,880.51 was subsequently entered pursuant to the order. Defendant thereafter moved to vacate the judgment and for leave to renew and reargue its cross motion and its opposition to plaintiff’s motion, and resubmitted the affidavit in properly sworn form. By order entered June 11, 2012, the Civil Court denied defendant’s motion, and we affirm.

While the Civil Court determined that the submission of the notarized affidavit
did not constitute new evidence sufficient to support a motion for leave to renew,
“CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” (Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971, 972 [2012] see also Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008]). “The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification’ for failing to present it on the prior motion (CPLR 2221 [e] [3])” (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 391). In the present case, we leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking leave to renew its cross motion and its opposition to plaintiff’s motion, as defendant failed to set forth a reasonable justification for its initial failure to submit a properly sworn affidavit (see CPLR 2221 [e] [3] Singh v Mohamed, 54 AD3d 933 [2008]). We note that the branch of defendant’s motion seeking leave to reargue its cross motion and its opposition to plaintiff’s motion was untimely (see CPLR 2221 [*2][d] [3]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 21, 2012. The order granted defendant’s motion to dismiss 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, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the court lacked personal jurisdiction over defendant. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company. In opposition to the motion, plaintiff’s attorney submitted an affirmation wherein he stated, in a conclusory manner, that defendant may have an agent which operates in New York and asserted that discovery is needed to determine that issue. By order entered June 21, 2012, the Civil Court granted defendant’s motion to dismiss the complaint.

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court’s exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant’s motion papers demonstrated that it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff’s cause of action, so as to bring it within the Civil Court’s long-arm jurisdiction. In its opposition papers, plaintiff failed to rebut defendant’s showing. Instead, plaintiff argued that discovery was necessary to determine whether there was proper jurisdiction. However, plaintiff failed to establish that facts essential to justify opposition may exist but are not available to it, thereby warranting discovery (see CPLR 3211 [d] Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008] Roldan v Dexter Folder Co., 178 AD2d 589 [1991] Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant’s motion to dismiss the complaint was properly granted. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014