Supreme Court, New York County

101885/12

Appearances:

Attorneys Plaintiff: Jason Tenenbaum, P.C.

595 Stewart Avenue Suite 400

Garden City, NY 11530

Tele. No. (516) 750-0595

Attorneys Defendant: Hilda Miranda, Pro Se

3438 110th Street Apt. A

Corona, NY 11368

Tele. No. (None Listed)

Louis B. York, J.

The following papers, numbered 1 towere read on this motion for Default Jgmt.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ____________________________

Answering Affidavits — Exhibits ________________________________________________________ [*2]

Replying Affidavits ___________________________________________________________________

Cross-Motion:[ ] Yes[ ] No

This is a motion seeking a declaratory judgment on default against defendants Miranda, Elmhurst United Medical, P.C., Grand Medical Supply, Inc., McKay, New York Hospital of Queens, NYHMCQ Surgery, Quality Psychological Services, P.C., and Diagnostic Medicine, P.C. and against appearing defendants Flushing Hospital and Medical Center, Kath Medical, P.C., and Shara Acupuncture, P.C. A judgment is granted against all of the defendants stating that they are not entitled to No-Fault benefits because of the failure of defendant Hilda Miranda to attend IMES.

Hilda Miranda was allegedly involved in an automobile accident on December 8, 2008, and asserted a claim to plaintiff American Transit Insurance Company. Plaintiff sought services from the defendants and assigned her No-fault benefits to them. The plaintiff insurance company scheduled two IMES with Ms. Miranda. She defaulted in appearing at both and, therefore, plaintiff denied all of the defendants’ claims. (Copies of the scheduling letters and denial of benefits are contained in Exhibit 3 of the Order to Show Cause.

The defendants, through the affirmation of their attorney, have sought to defeat plaintiff’s arguments on a number of spurious grounds, including that this motion is premature as it deprives defendants of the ability to gather information to defeat this motion, that plaintiff failed to prove that it sent letters to Miranda and that defendant Miranda failed to appear at the two scheduled IMES, and that the plaintiff disclaimed too late.

To defeat a motion for summary judgment, defendant must come forward with legally admissible evidence (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Mehlman v Montifiore, 98 Ad2d 107, 946 NYS2d 27 [1st Dept 2012]).

Defendants produced no legal evidence challenging plaintiff’s evidence. Defendants’ attorney, who had no first-hand knowledge of anything merely attempted to unsuccessfully poke holes in plaintiff’s proof. In order to obtain depositions to obtain information to defeat summary judgment, they must set forth specifically the information they seek, not merely that they need further discovery without asserting anything more.

A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.

(Bailey v New York City Transit Authority, 270 AD2d 156, 157, 704 NYS2d 502 [1st Dept 2000]). [*3]

As to the letters that were challenged as lacking proof that they existed and were mailed, copies of those letters were annexed as exhibits to plaintiff’s moving papers and the manager of plaintiff’s mail room testified as to the procedure for mailing letters and packages. Defendant also asserted a number of decisions holding that a late declining of coverage will not uphold such a rejection. However, this is not the law in the First Department where, as here, the assignor has failed to appear at designated IMES, a condition precedent to the formation of the policy (Unitron Advantage Ins. Co. v Bayshore Physical, 82 AD3d 559, 918 NYS2d 473 [1st Dept 2011]). Such a void contract cannot be assigned, even if the insurer fails to reject a claim at a later time than the statute prescribed 30-day period (Central General Hospital v Chubb, 90 NY2d 195, 659 NYS 2d 246 [1997]). The principles of Unitron and Chubb continue to be followed in recent cases in the First Department, See, eg., Praetorian Ins. Co. v Johnson, 2012 WL2143766 [Sup Ct NY County 2013]).

Accordingly, summary judgment is awarded against the answering defendants and default judgments are awarded against the non-appearing defendants.

Neither defendant Miranda nor any of her assignees may recover from the insurer American Transit Insurance Company for the accident that occurred on December 8, 2008.

Settle Declaratory Judgment awarded against the defaulting and appearing defendants.

Dated: December 12, 2013Enter:

_______________________

Louis B. York, J.S.C.

Check one:FINAL DISPOSITIONNON-FINAL DISPOSITION

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 (Pamela L. Fisher, J.), entered January 5, 2012. The order granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, which had been determined by an order of the same court entered February 15, 2011, and, upon renewal, in effect, vacated the February 15, 2011 order and thereupon 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 for leave to reargue and renew its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). The prior motion, which sought dismissal on the ground that the Civil Court lacked personal jurisdiction over defendant, had been denied by order entered February 15, 2011 with leave to renew upon proper papers, as a certificate of conformity had been lacking. In support of its motion for leave to reargue and renew, defendant submitted a certificate of conformity, which accompanied an affidavit of defendant’s litigation specialist. The litigation specialist alleged, among other things, that defendant maintained offices in Atlanta, Georgia and that defendant is not authorized to conduct business in New York. He further stated that defendant does not issue or deliver contracts of insurance to New York State residents or corporations authorized to do business in New York and has never had any employees either located in or working to solicit business in New York. Plaintiff argued in opposition that the certificate of conformity was inadmissible and that defendant had failed to establish that the court lacked personal jurisdiction over defendant. Plaintiff additionally asserted that it was entitled to discovery to determine whether there was proper jurisdiction. Plaintiff appeals from an order of the Civil Court entered January 5, 2012 which granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, and, upon renewal, in effect, vacated the prior order entered February 15, 2011 and thereupon granted defendant’s motion to dismiss the complaint.

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375, 381 n 5 [2007]). Here, defendant made a prima facie showing that personal jurisdiction had not been obtained [*2]over it based on any of the acts set forth in the Civil Court’s long-arm jurisdiction statute (CCA 404 [a]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish that defendant either transacted business, contracted to supply goods or services, committed a tortious act, or used or possessed any real property within the City of New York (CCA 404 [a]; see Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc., 36 Misc 3d 150[A], 2012 NY Slip Op 51663[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The affirmation of plaintiff’s attorney offered in opposition to defendant’s motion failed to demonstrate that he possessed personal knowledge of the facts to show that some basis for jurisdiction existed. Furthermore, plaintiff did not establish that it was entitled to discovery to determine whether there was proper jurisdiction (see CPLR 3211 [f]; 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]). Since plaintiff failed to show that defendant had contacts with the City of New York, the Civil Court properly dismissed the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 12, 2013

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

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 26, 2011. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the District Court as denied its motion for summary judgment.

The record shows that the District Court considered both defendant’s proof that defendant had not received requested verification from plaintiff and an affidavit from plaintiff which asserts that material responsive to the verification request had been sent to defendant. Thus, plaintiff failed to establish the absence of a material issue of fact. As a result, the District Court properly determined that plaintiff was not entitled to summary judgment. We decline defendant’s request to search the record and award it summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 12, 2013, which denied plaintiff’s motion for leave to enter a default judgment against all defendants and granted the cross motion of defendants-respondents KHL Acupuncture, P.C. and South Shore Osteopathic Medicine, P.C., to compel acceptance of their answers, unanimously affirmed, without costs.

In this action for a declaration that no-fault insurance coverage does not exist, based solely on defendant Perez’s failure to appear for an examination under oath (EUO), the motion court providently exercised its discretion in granting defendants-respondents’ cross motion to compel plaintiff to accept their belated answers (see CPLR 3012 [d]). The affirmation from respondents’ attorney sufficiently explained that the minimal delay was due to a computer inputting error in her office (Smoke v Windermere Owners, LLC, 109 AD3d 742 [1st Dept 2013]; Goldman v Cotter, 10 AD3d 289, 291 [1st Dept 2004]). We note that respondents’ counsel acted promptly upon discovering the error, there is no history of willful neglect, and plaintiff suffered no prejudice.

Contrary to plaintiff’s contention, a meritorious defense is not required to obtain relief under CPLR 3012 (d) (see Smoke, 109 AD3d at 742). In any event, respondents made such a showing by demonstrating that there is insufficient evidence that defendant Perez was properly notified of the EUOs. The affidavit of service submitted in support of plaintiff’s motion for a default judgment was insufficient to satisfy its burden of establishing that the EUO scheduling letters were mailed in accordance with the no-fault implementing regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Plaintiff also failed to provide objective proof of mailing establishing that the letters were mailed to Perez (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93, 94 [1st Dept 2004]). Accordingly, the motion court also [*2]properly denied plaintiff’s motion for a default judgment (see CPLR 3215 [f]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Andrias, Saxe, Richter and Clark, JJ.

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 March 1, 2012, deemed from a judgment of the same court entered March 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 2012 order granting defendant’s motion to dismiss the complaint for failure to state a cause of action, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied.

In this action to recover first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]). The complaint alleged that defendant had issued an insurance policy which covered plaintiff’s vehicle and provided for payment of no-fault benefits. The complaint set forth the number of the applicable policy and stated that plaintiff had timely notified defendant of the accident, but defendant had failed to pay the bills. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), arguing that the complaint was insufficient to state a claim of indebtedness, and plaintiff opposed the motion. By order entered March 1, 2012, the Civil Court granted defendant’s motion. Plaintiff’s appeal from the order is deemed to be from a judgment, which was subsequently entered, dismissing the complaint (see CPLR 5501 [c]).

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The allegations contained in the complaint should be accepted as true and the court must determine whether such facts fit any cognizable legal theory (see Morales v Copy Right, Inc., 28 AD3d 440 [2006]; Golden Gate Rehabilitation & Health Care Ctr., LLC v Giordano, 22 Misc 3d 136[A], 2009 NY Slip Op 50292[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Upon a review of the complaint in this case, we find that, contrary to the determination of the Civil Court, the complaint stated a cognizable cause of action and was sufficient to give defendant notice of the transactions intended to be proved.

Accordingly, the judgment is reversed, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 11, 2013

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 (Pamela L. Fisher, J.), entered July 8, 2011. The order denied defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint is granted.

Plaintiff commenced this action in April 2006 to recover assigned first-party no-fault benefits. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment. By order dated July 13, 2007, the Civil Court granted plaintiff’s motion on defendant’s default. Subsequently, defendant moved pursuant to CPLR 5015 (a) (3), in effect, to vacate the July 13, 2007 order and the default judgment and to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied the motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after a default, the plaintiff is obligated to offer a reasonable excuse for its delay in moving for leave to enter a default judgment, and must demonstrate that
it has a meritorious cause of action. In the event the plaintiff fails to meet its burden, the court, upon its own initiative or on motion, “shall dismiss the complaint as abandoned” (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). As plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, the dismissal of the complaint was required pursuant to CPLR 3215 (c), and it was improper for the court to have granted plaintiff’s motion.

While defendant failed to demonstrate that the default judgment should have been vacated pursuant to CPLR 5015 (a) (3), under the circumstances presented, we exercise our inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a).

Accordingly, the order is reversed, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to [*2]dismiss the complaint is granted.

Rios, J.P., Pesce and Solomon, JJ, concur.
Decision Date: December 11, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 13, 2010. The judgment, entered pursuant to a December 15, 2009 order of the same court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $2,525.88.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Plaintiff’s assignor, a New Jersey resident, was injured in a motor vehicle accident. The vehicle was insured by a New Jersey automobile insurance policy issued to plaintiff’s assignor, which policy provided that it is to be interpreted “pursuant to the laws of the state of New Jersey.” Plaintiff, a New York business entity, rendered medical services to the assignor in New York and submitted claims to defendant. Plaintiff subsequently commenced this action, alleging [*2]that payment of no-fault benefits on the 10 claims it had submitted to defendant was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and that, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that, in effect, the Civil Court lacked jurisdiction because, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was required to be submitted to dispute resolution. In the alternative, defendant’s cross motion sought summary judgment dismissing the complaint on the ground that plaintiff was not entitled to recover no-fault benefits. The Civil Court, refusing to consider defendant’s out-of-state affidavit in support of its cross motion since defendant had failed to submit a certificate of conformity, by order entered December 15, 2009, granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from a judgment, entered pursuant to the December 15, 2009 order, awarding plaintiff the sum of $2,525.88.

Contrary to defendant’s contention, the insurance policy in question does not provide for mandatory arbitration; rather, it merely states that a “matter shall be submitted to dispute resolution on the initiative of any party to the dispute.” Moreover, dispute resolution is not mandatory in the case at bar pursuant to NJSA § 39: 6A-5.1 (a), as implemented by NJAC § 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]). Consequently, the branch of defendant’s cross motion seeking to dismiss, in effect, for lack of jurisdiction, was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effect (see Advanced Med. Diagnostics of Queens. P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

The Restatement (Second) of Conflict of Laws § 187 (3) provides that, “[i]n the absence of a contrary indication of intention, the reference [to the law of the state chosen by the parties] is to the local law of the state of the chosen law” (IRB-Brasil Resseguros, S.A. v Inepar Invs., S.A., 20 NY3d 310, 316 [2012]). Consequently, the insurance contract’s provision requiring the policy, and any amendments, to be interpreted according to New Jersey law results in the application of New Jersey’s substantive law, not the application of conflict of law principles (see id.).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the rendered services (see Elkins v New Jersey Mfrs. Inc. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJSA § 39:6A-5 [g]), under New Jersey law, plaintiff’s motion for summary judgment should have been denied. Moreover, the Civil Court should have considered the out-of-state affidavit of an employee of defendant’s claims division which defendant submitted in support of its cross motion despite the absence of a certificate of conformity as required by CPLR 2309 (c), since such a defect is not fatal (see e.g. Matos v Salem Truck Leasing, 105 AD3d 916 [2013]; Fredette v Town of South Hampton, 95 AD3d 940, 942 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]). The relevant affidavit established that plaintiff’s claims for no-fault benefits in the amounts of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 had been paid by [*3]defendant in accordance with the applicable New Jersey fee schedule, within 60 days (see NJSA § 39:6A-5 [g]) after defendant had been furnished with written notice of the fact of a covered loss and of the amount of same. Inasmuch as plaintiff failed to rebut this showing as to the foregoing seven claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these seven claims should have been granted.

Accordingly, the judgment is reversed, so much of the order entered December 15, 2009 as granted plaintiff’s motion for summary judgment and as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $1,755.42, $258.56, $42.51, $71.49, $196.79, $139.34 and $65.39 is vacated, plaintiff’s motion for summary judgment is denied and those branches of defendant’s cross motion are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 09, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 9, 2013

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant. The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

{**42 Misc 3d at 67} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is reversed, with $30 costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment. After judgment was entered awarding plaintiff the principal sum of $5,206.18, defendant appealed from the order. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512 [a]).

Since defendant specifically declines, for the purposes of this appeal, to contest the Civil Court’s finding that plaintiff established its prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The Civil Court determined that defendant had failed to raise a triable issue of fact based solely upon its finding that defendant had failed to establish that it had issued an NF-10 denial of claim form in duplicate. Insurance Department Regulations (11 NYCRR) § 65-3.8 (c) (1) requires that “[i]f the insurer denies a {**42 Misc 3d at 68}claim in whole or in part involving elements of basic economic loss . . . the insurer shall notify the applicant or the authorized representative on the prescribed denial of claim form, in duplicate.” The regulation further provides that, where a denial involves a portion of a health provider’s bill, the insurer may alternatively make such a denial on a form or letter approved by the Department of Insurance, which is also to be issued in duplicate (id.). This requirement is presumably met by enclosing two copies of the denial in the same envelope. While defendant alleged that it had mailed a denial of claim form which denied the claim at issue based upon a lack of medical necessity, it did not allege that it had enclosed two copies of that denial in the same envelope. The Civil Court therefore found, in effect, that defendant’s defense of lack of medical necessity was precluded because it was not preserved in proper duplicate copies of the denial of claim form submitted to plaintiff.

In Excel Imaging, P.C. v MVAIC (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), this court held that the defendant’s failure to prove that it had issued the denial in duplicate, an issue that had been raised by the plaintiff in opposition to the defendant’s motion for summary judgment, required the denial of the motion. This court relied upon the language in New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (32 AD3d 458, 460 [2006]), which was also an action by a provider to recover assigned first-party no-fault benefits. In Rusk, the defendants had partially paid and partially denied the plaintiff’s claim. The denial was timely, but, instead of using the prescribed denial of claim form (the NF-10 form), the defendants had used a letter to deny the claim. The Appellate Division, Second Department, noted that the defendants were permitted to use a letter in such circumstances (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c] [1]), but found that the defendants were nonetheless precluded from raising their asserted defenses, stating that the “defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance” (Rusk, 32 AD3d at 460).

On this appeal, plaintiff does not claim that the information contained in the prescribed denial of claim form was insufficient, conclusory or vague, nor does it contend that it was in any way deprived of prompt, specific notice as to the reasons for the denial. It is noted that, subsequent to Rusk, the Appellate Division has found that other errors in denials should not be{**42 Misc 3d at 69} considered fatal when such errors do not pose the possibility of any prejudice to the claimant (see e.g. NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191 [2011] [finding that a denial was not “rendered a nullity” by possible errors when such errors “were not significant by themselves, and did not pose any possibility of confusion or prejudice to the (plaintiff) under the circumstances”]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010] [“minor factual discrepancy” did not invalidate a denial which “was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law”]). Upon reviewing the language in Rusk, we note that the Appellate Division did not base its decision therein solely on the defendants’ failure to serve the denial in duplicate. Rather, the Court noted both that the defendants had failed to use the prescribed form for the denial without obtaining approval from the Department of Insurance for the letter they had used and that they had not issued the letter in duplicate. In Excel, this court, in effect, took the position that either one of the aforementioned grounds, standing alone, would constitute a fatal defect rendering the denial of claim a nullity. However, in light of the Appellate Division cases decided after Rusk, we are no longer of the opinion that the failure to send a denial in duplicate should, on its own, be considered a fatal error that would prevent a defendant from being able to raise any otherwise meritorious, but precludable, defenses.

This is especially true as we see no benefit that a claimant would obtain by receiving two copies of the same prescribed denial of claim form in the same mailing and, thus, we do not see any prejudice to a claimant if it does not receive such a duplicate copy (see Prime Psychological Servs., P.C. v American Tr. Ins. Co., 20 Misc 3d 844, 850 [Civ Ct, Richmond County 2008] [discussing the requirement of duplicate denials and stating that “since the regulations set forth that both the original (NF-10) form and its duplicate shall be served on the medical provider, the service of the duplicate (NF-10) is basically redundant”]; see also NYU-Hospital for Joint Diseases, 84 AD3d at 1191). To the extent that Excel Imaging, P.C. (27 Misc 3d 141[A], 2010 NY Slip Op 50998[U]) holds otherwise, it should no longer be followed.

As we find that defendant’s lack of medical necessity defense is not precluded, we turn to the merits of this defense. Defendant raised a triable issue of fact in opposition to plaintiff’s motion{**42 Misc 3d at 70} for summary judgment since the affidavits submitted by defendant established that it had timely issued the subject denial of claim form (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 Dept, 2d & 11th Jud Dists 2007]), and the sworn peer review report submitted by defendant set forth a factual basis and medical rationale for the determination that there was a lack of medical necessity for the services provided (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; A. Khodadadi Radiology, P.C. v N.Y. Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

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

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50473[U] [App Term, 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no [*2]requirement that the claim denial be timely made (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.

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 May 18, 2010. The order, insofar as appealed from, denied defendant’s cross motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion to dismiss the complaint is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in August of 2005. Defendant defaulted in answering. More than four years later, plaintiff moved for leave to enter a default judgment and defendant cross-moved to dismiss the complaint pursuant to CPLR 3215 (c). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion to dismiss the complaint.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after the default, the plaintiff is obligated to offer a reasonable excuse for the delay in [*2]moving for leave to enter a default judgment, and must demonstrate that the complaint is meritorious, failing which the court, upon its own initiative or on motion, must dismiss the complaint as abandoned (CPLR 3215 [c]; see County of Nassau v Chmela, 45 AD3d 722 [2007]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624 [2005]). Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the motion court, reversal is warranted if that discretion is improvidently exercised (see Staples v Jeff Hunt Devs., Inc., 56 AD3d 459 [2008]). In the present case, plaintiff’s bald and unsubstantiated claim of law office failure was insufficient to explain the four-year delay in moving for leave to enter a default judgment (see Costello v Reilly, 36 AD3d 581 [2007]). Thus, we find that the Civil Court improvidently exercised its discretion in denying defendant’s cross motion to dismiss the complaint as abandoned.

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion to dismiss the complaint is granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013