SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered January 24, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered January 24, 2012, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the chiropractic services underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 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 November 1, 2011, deemed from a judgment of the same court entered December 6, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 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]).

In support of its motion, defendant submitted affidavits by its claims representatives which sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The claims had been denied on the ground that they exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors. Contrary to plaintiff’s assertion, an affidavit by defendant’s claims representative established that defendant had properly used the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the services at issue (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmation of plaintiff’s attorney did not raise a triable issue of fact in opposition to defendant’s motion.

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal. Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: October 08, 2013

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

Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 26, 2011. The order, insofar as appealed from by defendant, denied defendant’s cross motion for summary judgment dismissing the complaint. The order, insofar as cross-appealed from by plaintiff, denied plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, with $25 costs to defendant.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground, among others, that defendant was precluded from offering any evidence in support of its defenses because it had failed to timely comply with a so-ordered discovery stipulation. Defendant cross-moved for summary judgment dismissing the complaint on the grounds of lack of medical necessity and outstanding verification. The Civil Court denied both motions; found, among other things, that defendant had established timely denials of the claims at issue; and limited the trial to medical necessity. This appeal and cross appeal ensued.

Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.

As to two of the three claims at issue in this case, defendant submitted affirmed peer review reports which set forth a factual basis and medical rationale for the doctor’s [*2]determinations that there was a lack of medical necessity for the services. In opposition, plaintiff failed to submit any medical evidence to rebut the peer review reports. Since plaintiff has not challenged the Civil Court’s finding that, in effect, defendant is otherwise entitled to judgment, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these two claims should have been granted (see Park Slope Med. v Praetorian Ins. Co., 39 Misc 3d 141[A], 2013 NY Slip Op 50761[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

As to the remaining claim, the affidavits submitted by defendant were sufficient to establish that defendant had timely mailed requests and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to respond to the verification requests prior to the commencement of this action. Plaintiff offered no evidence in opposition. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing as premature so much of the complaint as sought to recover upon this claim should also have been granted, as defendant’s time to pay or deny the claim had not yet elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 08, 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 November 1, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to produce its treating chiropractor for a deposition. Plaintiff cross-moved for summary judgment. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition.

CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U][App Term, 2d, 11th & 13th Jud Dists 2009]). As defendant is defending this action on the ground, among others, that the services rendered lacked medical necessity, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking to compel plaintiff to produce its treating chiropractor for a deposition is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 08, 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 (Robin S. Garson, J.), entered June 21, 2011. The order denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint.

ORDERED that the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and, upon searching the record, awarded defendant summary judgment dismissing the complaint, finding that defendant had established that it had paid the subject claims at the highest rate available for acupuncture services as set forth in the chiropractic fee schedule.

Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to plaintiff’s claims for acupuncture services billed under codes 97810 and 97811, defendant demonstrated that it had fully paid plaintiff for those services in accordance with 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 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, we do not disturb so much of the Civil Court’s order as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover for services billed under those codes. However, as defendant failed to address an “initial evaluation,” which had been billed under code 99203, defendant should not have been awarded summary judgment [*2]dismissing so much of the complaint as sought to recover the $75.11 that had been billed under that code.

As defendant established that the claim for $75.11 had been timely denied, and plaintiff failed to establish that defendant’s denial of claim form was conclusory, vague or without merit as a matter of law, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on that claim (see 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]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order is modified by deleting so much thereof as, upon searching the record, awarded defendant summary judgment dismissing so much of the complaint as sought to recover $75.11 for an “initial evaluation” which had been billed under code 99203.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 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 (Ingrid Joseph, J.), entered August 2, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

While plaintiff argues that defendant did not mail its IME scheduling letters to the correct address, defendant sufficiently demonstrated that it addressed the letters to plaintiff’s assignor, defendant’s insured, at the address provided to it by its insured. In addition, defendant demonstrated that copies of the IME scheduling letters had been addressed to, and received by, plaintiff’s assignor’s attorney (see Great Wall Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 136[A], 2009 NY Slip Op 50294[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013

[*1]

Supreme Court, New York County, October 8, 2013

APPEARANCES OF COUNSEL

Law Offices of James F. Sullivan, P.C., New York City (Giovanna Tuttolomondo of counsel), for plaintiff.

Law Offices of Robert E. Dash, P.C., Melville (Melissa R. Abraham-Lofurno of counsel), for Stand-Up MRI of the Bronx, P.C., defendant.

I. Background

Plaintiff moves for a default judgment against all defendants except Five Boro Psychological and Licensed Master Social Work{**45 Misc 3d at 173} Services, PLLC, Lincoln Medical and Mental Health Center, New York City Health and Hospitals Corporation, Stand-Up MRI of the Bronx, P.C., and Transcare Ambulance Services. (CPLR 3215.) Plaintiff moves for summary judgment against Stand-Up MRI. (CPLR 3212 [b].) On each ground, against both Stand-Up MRI and the remaining nine defendants, plaintiff’s motion seeks a judgment declaring that plaintiff owes no duty to compensate them pursuant to Insurance Law § 5103 for expenses incurred from a collision November 15, 2009, involving defendant Curry and a motor [*2]vehicle for which plaintiff issued an insurance policy. (CPLR 3001, 3212 [b]; 3215 [e].) For the reasons explained below, the court denies all the relief sought by plaintiff’s motion.

Plaintiff bases both prongs of its motion on Curry’s nonappearance for an examination under oath (EUO), to which plaintiff is entitled under the policy. (See 11 NYCRR 65-1.1 [d].) The policy’s mandatory personal injury protection provisions condition the insurer’s payment of a claim on “full compliance with the terms of this coverage.” (Id.) Upon the insurer’s request, “the eligible injured person or that person’s assignee or representative shall . . . as may reasonably be required submit to examinations under oath . . . .” (Id.)

II. Plaintiff Scheduled the EUO at Reasonably Convenient Times

[1] 11 NYCRR 65-3.5 (e) requires that an EUO be “held at a place and time reasonably convenient to the applicant” for insurance coverage. Plaintiff scheduled Curry’s EUO at two different times on different days of the week, both during business hours. Although business hours may be inconvenient for applicants who work during those hours, section 65-3.5 (e) also required plaintiff to notify Curry, as it did, that she would be reimbursed for any earnings lost by complying with the EUO request. Plaintiff notified her further that, if she advised plaintiff that the scheduled time was in fact inconvenient, plaintiff would reschedule the EUO. In light of these available accommodations, and absent any notice from Curry that the scheduled time was inconvenient, the scheduling during business hours was reasonable.

III. The Missing Evidence

[2] Yet 11 NYCRR 65-3.5 (e) requires further that plaintiff’s request for the EUO, to establish Curry’s or her assignee’s{**45 Misc 3d at 174} claim, “must be based upon the application of objective standards so that there is specific objective justification supporting the use of such examination.” Nowhere do plaintiff’s admissible documents or its witnesses, including the claims representative assigned to defendants’ claims for coverage and a supervisor of plaintiff’s legal department, responsible for EUO requests, indicate any justification, need, or explanation for Curry’s EUO. The director of plaintiff’s special investigations unit (SIU) attests simply that it “was requested to conduct an investigation” of the motor vehicle collision in which Curry was involved. (Aff in support of Giovanna Tuttolomondo, exhibit J, ¶ 6.) “As part of SIU’s investigation,” an SIU investigator “attempted to examine the claimant, CHRISTINA CURRY, under oath.” (Id.)

Moreover, even though only four months elapsed between when Curry provided her address on her application for insurance coverage and plaintiff mailed its EUO requests to that address, no witness attests that Curry did not notify plaintiff of an address change in the interim. Nor does plaintiff present any evidence that the applicant was notified of any obligation to inform the insurer of her change in address, particularly when she has assigned her rights to insurance benefits to her medical care providers and retains no more interest in obtaining benefits paid to her. This incomplete record leaves a question whether plaintiff mailed its EUO requests to Curry’s current address and whether she ever received them.

More importantly, no witness attests to Curry’s nonappearance at either of the scheduled EUOs. The director of plaintiff’s SIU just lays the foundation for the admissibility of business records that he claims show her nonappearances. While these records may be admissible, plaintiff does not present them. The SIU director’s recitation of their contents is hearsay. (E.g. People v Joseph, 86 NY2d 565, 570 [1995]; Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 [1st Dept 2008]; Kane v Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 [2d Dept 2004]; Wagman v Bradshaw, 292 AD2d 84, 87-88 [2d Dept 2002]; see Giordano v Berisha, 45 AD3d 416, 417 [1st Dept 2007]; Washington v Montefiore Med. Ctr., 9 AD3d 271, 272 [1st Dept 2004]; Marina Towers Assoc. v National States Elec. Corp., 203 AD2d 49, 50 [1st Dept 1994].)

IV. Conclusion

The absence of justification for the EUO as required by 11 NYCRR 65-3.5 (e) and of admissible evidence that the eligible injured person Curry actually failed to appear for the EUOs{**45 Misc 3d at 175} requested by plaintiff (see 11 NYCRR 65-1.1 [d]), precludes a summary declaratory judgment to plaintiff at this stage. (Ahead Realty LLC v India House, Inc., 92 AD3d 424, 425 [1st Dept [*3]2012]; Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 100-101 [1st Dept 2009]; Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253, 254 [1st Dept 2006]; see United States Fire Ins. Co. v American Home Assur. Co., 19 AD3d 191, 192 [1st Dept 2005]; 319 McKibben St. Corp. v General Star Natl. Ins. Co., 245 AD2d 26, 29-30 [1st Dept 1997].) Absent a showing of plaintiff’s compliance with the governing regulation (11 NYCRR 65-3.5 [e]), and Curry’s noncompliance with the regulations and policy (11 NYCRR. 65-1.1 [d]; 65-3.5 [e]), plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI (CPLR 3212 [b]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005]; Chubb Natl. Ins. Co. v Platinum Customcraft Corp., 38 AD3d 244, 245 [1st Dept 2007]; Atlantic Mut. Ins. Co. v Joyce Intl., Inc., 31 AD3d 352 [1st Dept 2006]), or a default judgment as sought against the nine other defendants. (CPLR 3215 [f]; Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]; Martinez v Reiner, 104 AD3d 477, 478 [1st Dept 2013]; Utak v Commerce Bank Inc., 88 AD3d 522, 523 [1st Dept 2011]; Mejia-Ortiz v Inoa, 71 AD3d 517 [1st Dept 2010].)

Consequently, the court denies plaintiff’s motion for a default declaratory judgment and for a summary declaratory judgment. (CPLR 3001, 3212 [b]; 3215 [f].) This decision constitutes the court’s order.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, October 8, 2013

APPEARANCES OF COUNSEL

Moshe D. Fuld, P.C., Brooklyn (David Karp and Cheryl Scher of counsel), for appellant. Law Offices of Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for respondent.

{**42 Misc 3d at 2} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms in question and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 3}

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained. Defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In an order entered August 17, 2011, the Civil Court found that defendant had established, for all purposes in the action, that defendant had issued timely and proper denials, and limited the trial to plaintiff’s “prima facie case” and the issue of medical necessity. Plaintiff appeals, as limited by the brief, from so much of the order as denied the branch of its motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.

As plaintiff argues, it proved the submission of the relevant claim forms to defendant by annexing the denials, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Moreover, contrary to defendant’s argument on appeal, plaintiff established the fact and the amount of the loss sustained by demonstrating that its claim forms were admissible, pursuant to CPLR 4518 (a), as proof of the acts, transactions, occurrences [*2]and/or events recorded therein, and defendant did not rebut that showing. Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff’s motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained is granted.{**42 Misc 3d at 4}

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 13, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 13, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While the defendant-insurer made a prima facie showing that the MRI testing here at issue was not medically necessary, plaintiff’s opposing submission was sufficient to raise a triable issue of fact. The medical affidavit submitted by plaintiff – which detailed the assignor’s complaints of pain and the restricted range of motion of his cervical spine, and opined that the MRI was necessary to rule out disc herniations in the cervical spine – was sufficient to raise a triable issue as to medical necessity (see generally Lee v McQueens, 60 AD3d 914 [2009]; cf. 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 07, 2013

Supreme Court, New York County

109003/11

Plaintiff:

Law office of James F. Sullivan

52 Duane Street, 7th Floor

New York, New York 10007

Defendant:

Melanie B. Nolan

80 Marcus Drive

Melville, New York 11747

Jazmine L. Rodriguez – pro se

351 Chester Street, Apt. 2F

Brooklyn, New York 11212

The Rybak Law, PLLC – for Deng Acupuncture, Compas Medical, New Way Medical,

and T & J Chiropractic

1810 Voorhies Avenue, 3rd Floor

Brooklyn, New York 11235

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle accident. On January 12, 2011, defendant Jazmine L. Rodriguez (Rodriguez) was allegedly injured in the accident involving a vehicle insured by plaintiff American Transit Insurance Co. Defendant Rodriguez sought medical treatment from defendants The Brookdale Hospital Medical Center, Charles Deng Acupuncture, P.C. (Deng Acupuncture), Compas Medical, P.C. (Compas Medical), Metropolitan Diagnostic Medical Care, P.C., New Way Medical Supply, Corp. (New Way Medical), Seacoast Medical, P.C., and T & J Chiropractic, P.C. (T & J Chiropractic) (collectively the “Medical Provider Defendants”). Thereafter, defendant Rodriguez allegedly assigned her No-Fault rights to the Medical Provider Defendants. According to plaintiff, defendant Rodriguez breached and failed to comply with policy requirements set forth in the insurance policy, in that defendant Rodriguez failed to appear for an examination under oath, and, thus, plaintiff is not obligated to afford coverage.

Plaintiff now moves for a default judgment, pursuant to CPLR 3215, against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., and for summary judgment, pursuant to CPLR 3212, against defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic. Such defendants jointly oppose plaintiff’s motion for summary judgment.

DISCUSSION

Default Judgment

CPLR 3215 provides that “[w]hen a defendant has failed to appear, . . . the plaintiff may seek a default judgment against him. . . . The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305.” A party moving to prevent a default judgment from being entered must demonstrate a reasonable excuse for the default and a meritorious defense to the action. CPLR C3215:24; Wehringer v Brannigan, 232 AD2d 206, 206 (1st Dep’t 1996). [*2]

Here, plaintiff’s motion for a default judgment is granted as to defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C., as such defendants, to date, have failed to answer plaintiff’s complaint or appear in this action. Additionally, such defendants have not submitted any opposition to plaintiff’s motion. Defendants Deng Acupuncture, Compas Medical, New Way Medical, and T & J Chiropractic take no position on this portion of plaintiff’s motion.

Summary Judgment

The Court of Appeals has stated, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (citations omitted). The movant must establish prima facie entitlement to summary judgment by tender of evidentiary proof in admissible form. See Friends of Animals, Inc. v Associated Fur Mfrs.,Inc., 46 NY2d 1065, 1067-1068 (1979); Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853. Additionally, summary judgment motions should be denied if the opposing party presents admissible evidence establishing that there is a genuine issue of fact remaining. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Under the above standard, plaintiff’s motion for summary judgment is denied. In support of its motion, plaintiff proffers the affirmation of its attorney, Kaitlin Williams, which states alleged terms of the insurance policy requiring the eligible injured person to submit to examinations under oath at the reasonable request of the insurance company. However, such policy was not annexed to the affirmation, or provided in support of plaintiff’s motion. While plaintiff’s attorney’s affirmation conclusorily states certain condition precedents required by the insurance policy, which were allegedly breached by defendant Rodriguez, such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d at 1067. It is well settled that a “bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep’t 1981), aff’d 54 NY2d 715 (1981). As such, plaintiff has failed to establish prima facie entitlement to summary judgment as a matter of law. Moreover, the affidavits with regards to mailing and service, attached to petitioner’s motion, do not establish, as a matter of law, the terms of the insurance policy, or that defendant Rodriguez breached such terms. Thus, plaintiff’s motion for summary judgment is denied, without prejudice to move for summary judgment within 60 days of the filing of the note of issue, upon completion of discovery.

Accordingly, it is

ORDERED that the portion of plaintiff’s motion seeking a default judgment is granted, as against defendants Rodriguez, The Brookdale Hospital Medical Center, Metropolitan Diagnostic Medical Care, P.C., and Seacoast Medical, P.C.; plaintiff shall settle order/judgment upon notice, in accordance with 22 NYCRR 202.48, returnable to room 119A; and it is further [*3]

ORDERED that the portion of plaintiff’s motion for summary judgment is denied, without prejudice to move after the completion of disclosure in accordance with this decision/order; and it is further

ORDERED that, within thirty days of entry, provider defendants shall serve a copy of this order upon all parties, together with notice of entry; and it is further

ORDERED that documentary discovery shall be exchanged and completed within 30 days; and it is further

ORDERED that depositions of the parties to commence on or before November 25, 2013, and completed on or before December 31, 2013; and it is further

ORDERED that the parties shall appear for a compliance conference on Thursday, January 9, 2014 at 10:00 A.M., in Room 428, 60 Centre Street, New York, NY ^[FN1]

This constitutes the Decision and Order of the Court.

Dated:

DORIS LING-COHAN, J.S.C.

Check one:[ ] FINAL DISPOSITION[ X ] NON-FINAL DISPOSITION

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Footnotes

Footnote 1: The October 17, 2013 conference is adjourned to January 9, 2014 at 10:00 A.M.