Matter of Allstate Ins. Co. v Wilen

2013 NY Slip Op 07727 [111 AD3d 824]

November 20, 2013

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

In the Matter of Allstate Insurance Company, Appellant, v Daniel Wilen, Respondent.

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Peter J. DiConza, Jr., Manhasset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to vacate the award of a master arbitrator dated June 6, 2012, which vacated an award of an arbitrator dated March 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered October 1, 2012, which, inter alia, denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

“A master arbitrator is empowered to apply the law to a given set of facts even if his or her conclusion differs from that of the arbitrator” (Matter of Empire Ins. Co. v Lam, 273 AD2d 469, 470 [2000]). Contrary to the petitioner’s contention, the Supreme Court properly determined that the master arbitrator did not exceed his powers. The master arbitrator properly vacated the arbitration award which, in light of the evidence, was “incorrect as a matter of law” (former 11 NYCRR 65.19 [a] [4]; see Insurance Law § 5106; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of State Farm Ins. Co. v Spilotros, 257 AD2d 577 [1999]).

The petitioner’s remaining contentions are without merit. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.

[*1] Decided on November 14, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570792/12.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 22, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 22, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist to its assignor. The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.

Inasmuch as the Superintendent of Insurance has not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]). Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate. Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 19, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to modify a judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with the decision herein.

On this appeal in an action by a provider to recover assigned first-party no-fault benefits, the issue is whether prejudgment interest should accrue from the filing, or the service, of the summons and complaint.

Insofar as is relevant to this appeal, the facts are as follows: Plaintiff filed the summons and complaint in this action on October 27, 2008, but service was not completed until January 26, 2009. Subsequently, a nonjury trial was held, limited to the issue of medical necessity. At the beginning of the trial, the parties stipulated that, among other things, defendant had sent timely denials of the claims at issue in December 2007 and January 2008. After the trial, the Civil Court found that defendant had not proven its defense and directed that judgment be entered in favor of plaintiff. Based upon an assessment of damages submitted by plaintiff, a judgment was entered on March 12, 2011 awarding plaintiff the principal sum of $2,680 plus interest in the sum of $1,393.60, the interest being awarded from October 27, 2008, the date of the filing of the summons and complaint. Defendant thereafter moved to modify the judgment, arguing that, pursuant to CCA 412, the interest should have been awarded from January 26, 2009, the date of the service of the summons and complaint. The Civil Court denied defendant’s motion. We reverse.

The no-fault regulations provide, in pertinent part:

“If an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken . . .” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]).
In this case, defendant timely denied the claims at issue and plaintiff did not commence the action within 30 days the of receipt of those denials. Thus, the interest did not begin to accrue until plaintiff commenced this action. New York City Civil Court Act 400 (1) provides that a Civil Court action is commenced by the filing of a summons and complaint. However, section 412 of the New York City Civil Court Act further provides:
“In any action, petition, order to show cause or other proceeding wherein interest accrues from the date of the inception of the action, petition, order or proceeding, said entitlement to interest shall not begin to accrue until service is completed by the actual index number being properly depicted on the summons and provided to the party to be charged with the payment of interest.”
Because the no-fault regulations provide that, in situations such as the one here, interest on a no-fault claim does not accrue until the date of the inception of the action, CCA 412 applies (see 65 Siegel’s Practice Review, The New § 412, on the Accrual of Interest, at 1 [Sept. 2005]; All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 38 Misc 3d 268 [Civ Ct, Kings County 2012]). Therefore, the interest in this case should have been awarded from the date of the service of the summons and complaint, rather than from the date of the filing thereof.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with this decision.

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

Decision Date: November 12, 2013

[*1]

Alev Med. Supply, Inc. v Geico Gen. Ins. Co.

2013 NY Slip Op 52322(U) [44 Misc 3d 131(A)]

Decided on November 12, 2013

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 November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Alev Medical Supply, Inc. as Assignee of JESUS ENCARNACION, Appellant, —

against

Geico Indemnity Company, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees.

Following a joint nonjury trial of this action by a provider to recover assigned first-party no-fault benefits and of seven other actions, the Civil Court directed a verdict in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case. A judgment dismissing the complaint was subsequently entered.

At the trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). The witness also offered testimony pertaining to the submission of the claim forms to defendant and of defendant’s failure to pay the claims. Thus, plaintiff established its prima facie case (see generally 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]). Defendant offered no defense, instead relying upon the record, and rested its case.

At a trial, a plaintiff is not required to show that there is no defense to the cause of action or that a proffered defense lacks merit (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146 [App Term, 2d, 11th & 13th Jud Dists 2013]; cf. CPLR 3212 [b] [upon a motion for summary judgment, a plaintiff must “show that there is no defense to the cause of action or that the . . . defense has no merit”]). Rather, it is the defendant’s burden at trial to show that it has a [*2]meritorious defense. In view of the foregoing, judgment should have been awarded in favor of plaintiff.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered December 6, 2011. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1).

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1). By subsequent order entered November 19, 2012, the Civil Court granted defendant’s unopposed motion for summary judgment dismissing the complaint. In light of the November 19, 2012 order, this appeal must be dismissed as academic (see Livny v Rotella, 305 AD2d 377 [2003]; Cherico, Cherico & Assoc. v Lamanna, 21 Misc 3d 137[A], 2008 NY Slip Op 52292[U] [App Term, 9th & 10th Jud Dists 2008]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, jointly tried with seven other actions, plaintiff’s counsel marked several exhibits for identification. However, before he had the opportunity to move those exhibits into evidence, the Civil Court directed judgment in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case.

At the nonjury trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records and to establish the nonpayment of the claims (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms would have constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). Since the Civil Court erroneously directed judgment in favor of defendant before plaintiff’s counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims, the action should be remitted to the Civil Court for a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

American Tr. Ins. Co. v Marte-Rosario

2013 NY Slip Op 07416 [111 AD3d 442]

November 12, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

American Transit Insurance Company, Appellant, v Maria Marte-Rosario et al., Defendants, and Empire Acupuncture, PC, et al., Respondents.

—[*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 Empire Acupuncture, PC, respondent.

Amos Weinberg, Great Neck, for Multiple Medical Health Services P.C. and Infinite Chiropractic, PLLC, respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered December 24, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants Multiple Medical Health Services, P.C. and Infinite Chiropractic, PLLC, unanimously reversed, on the law, with costs, the motion granted, and it is declared that plaintiff owes no coverage duty to said defendants.

Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Defendant Empire Acupuncture, PC (Empire), which has not appealed from the order, requests modification of the order to deny plaintiff’s motion for summary judgment against it and grant Empire’s motion for summary judgment against plaintiff. Contrary to plaintiff’s contention, the [*2]court’s reference to a “default” by Empire does not render the portion of the order pertaining to Empire nonappealable pursuant to CPLR 5511, since Empire opposed plaintiff’s motion for summary judgment against it (see Spatz v Bajramoski, 214 AD2d 436, 436 [1st Dept 1995]). However, although we are empowered to search the record and grant the relief sought by Empire under these circumstances (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Brewster v FTM Servo, Corp., 44 AD3d 351 [1st Dept 2007]), we have considered and rejected Empire’s arguments on the merits. Concur—Tom, J.P., Andrias, Friedman, Freedman and Clark, JJ.

American Tr. Ins. Co. v Lucas

2013 NY Slip Op 07273 [111 AD3d 423]

November 7, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

American Transit Insurance Company, Appellant, v Keyana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent. American Transit Insurance Company, Appellant, v Tashuana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent.

—[*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 (Sam Lewis of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Unitrin, 82 AD3d at 560). [*2]

” ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], 2005 NY Slip Op 51815[U] [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A], 2007 NY Slip Op 50365[U] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560). Concur—Mazzarelli, J.P., Acosta, Saxe, Richter and Feinman, JJ.

Dinstber v Allstate Ins. Co.

2013 NY Slip Op 07103 [110 AD3d 1410]

October 31, 2013

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 27, 2013

George C. Dinstber III, Appellant, v Allstate Insurance Company, Respondent.

—[*1] George C. Dinstber III, Cincinnatus, appellant pro se.

Goldberg & Segalla, LLP, Buffalo (Bryan D. Richmond of counsel), for respondent.

Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered December 28, 2011 in Cortland County, which, among other things, granted defendant’s motion for partial summary judgment.

In January 2002, plaintiff notified defendant, his no-fault insurance carrier, that he had been injured in a motor vehicle accident. Defendant thereafter denied his no-fault claim, prompting plaintiff to commence this action in which he asserted claims of breach of contract and tort, with a concomitant request for punitive damages. After joinder of issue, and various motions brought by each party and appeals related thereto (96 AD3d 1198 [2012]; 75 AD3d 957 [2010]), defendant moved for summary judgment dismissing plaintiff’s tort claim and accompanying demand for punitive damages, alleging that the claim failed to state a cause of action (see CPLR 3211 [a] [7]). Plaintiff cross-moved for, among other things, leave to amend the complaint. In a December 2011 order, Supreme Court granted defendant’s motion, dismissed the tort claim and denied plaintiff’s cross motion. On plaintiff’s appeal, we now affirm.

Although “damages arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, . . . punitive damages may be recoverable if necessary to vindicate a public right” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 315 [1995]), but only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public (see id. at 316; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613[*2][1994]). Thus, “[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant’s motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” (New York Univ. v Continental Ins. Co., 87 NY2d at 316). In this regard, a “defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” (id.). Nonetheless, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” (id.).

Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in “bad faith tactics” by failing to promptly investigate his no-fault claim and failing to renew his insurance policy. Such claim does not allege a breach of duty distinct from defendant’s contractual obligations. Further, while plaintiff alleged a violation of Insurance Law § 2601 based upon defendant’s purported failure to timely investigate his no-fault claim, New York does not recognize a private cause of action under that statute (see New York Univ. v Continental Ins. Co., 87 NY2d at 317-318; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d at 604; Kantrowitz v Allstate Indem. Co., 48 AD3d 753, 754 [2008]). In light of the foregoing, even if we construe the complaint liberally, accept as true the facts as alleged and accord plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d 1255, 1258 [2013]; Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011]), we concur with Supreme Court that the complaint does not allege a tort existing independently from the parties’ contract (see New York Univ. v Continental Ins. Co., 87 NY2d at 320; Alexander v GEICO Ins. Co., 35 AD3d 989, 990 [2006]) and, therefore, fails to state a cause of action for punitive damages based upon tortious conduct.

Nor did Supreme Court abuse its discretion in denying plaintiff’s cross motion for leave to amend the complaint, as plaintiff failed to establish that the proposed amendment is not plainly without merit (see Matter of Greece Town Mall, L.P. v New York State, 105 AD3d 1298, 1299-1300 [2013]; Vermont Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d 1218, 1219 [2012]; see also Vectron Intl., Inc. v Corning Oak Holding, Inc., 106 AD3d 1164, 1168 [2013]). Here, plaintiff failed to submit a copy of the proposed amended pleading, and his conclusory allegations in support of his motion were insufficient to make any evidentiary showing that the proposed amendments have merit (see Chang v First Am. Tit. Ins. Co. of N.Y., 20 AD3d 502, 502 [2005]). Thus, plaintiff’s cross motion was properly denied (see Putney v People, 94 AD3d 1193, 1194-1195 [2012], appeal dismissed 19 NY3d 1020 [2012], lv denied and dismissed 21 NY3d 909 [2013]; McColgan v Brewer, 75 AD3d 876, 878 [2010]).

Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, without costs.[*3]

[*1] Decided on October 30, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570566/13.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated September 6, 2011, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), dated September 6, 2011, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent medical examination (IME) report of its examining chiropractor, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the assignor’s injuries were resolved and that the chiropractic treatment giving rise to plaintiff’s no-fault claim lacked medical necessity. In opposition, the unsworn doctor’s report submitted with plaintiff’s attorney’s affirmation was without probative value (see Grasso v Angerami, 79 NY2d 813 [1991]; Henkin v Fast Times Taxi, Inc., 307 AD2d 814 [2003]). Moreover, even if considered, the report did not meaningfully refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer (CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 30, 2013