Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2016 NY Slip Op 50308(U))
[*1]| Great Health Care Chiropractic, P.C. v Maya Assur. Co. |
| 2016 NY Slip Op 50308(U) [50 Misc 3d 146(A)] |
| Decided on March 11, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1373 Q C
against
Maya Assurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered May 15, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], 2015 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))
Reported in New York Official Reports at Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))
[*1]| GL Acupuncture, P.C. v Maya Assur. Co. |
| 2016 NY Slip Op 50310(U) [50 Misc 3d 146(A)] |
| Decided on March 11, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through March 28, 2016; it will not be published in the printed Official Reports. |
Decided on March 11, 2016
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1437 K C
against
Maya Assurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 22, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
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.
Plaintiff correctly argues on appeal that the affidavit submitted by defendant in suuport of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling independent medical examinations (IMEs) had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], 2015 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016Atlantic Radiology, P.C. v Maya Assur. Co. (2016 NY Slip Op 50316(U))
Reported in New York Official Reports at Atlantic Radiology, P.C. v Maya Assur. Co. (2016 NY Slip Op 50316(U))
[*1]| Atlantic Radiology, P.C. v Maya Assur. Co. |
| 2016 NY Slip Op 50316(U) [50 Misc 3d 147(A)] |
| Decided on March 11, 2016 |
| 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 March 11, 2016
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1612 K C
against
Maya Assurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 19, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered June 19, 2013, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.
Contrary to defendant’s contention, the affidavit of defendant’s claims adjuster was insufficient to establish that its denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Although the claims adjuster stated that, in May 2012, she had personally generated the denial of claim form and placed it in an envelope, affixed proper postage and placed the envelope in an outgoing mailbox, she also stated that she began working for defendant as a claims adjuster in July 2012. Consequently, her affidavit was of no probative value (see Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Defendant thus failed to demonstrate that it was not precluded from interposing its defense of lack of medical necessity (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). As defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016BAB Nuclear Radiology, P.C. v Mercury Cas. Co. (2016 NY Slip Op 50318(U))
Reported in New York Official Reports at BAB Nuclear Radiology, P.C. v Mercury Cas. Co. (2016 NY Slip Op 50318(U))
[*1]| BAB Nuclear Radiology, P.C. v Mercury Cas. Co. |
| 2016 NY Slip Op 50318(U) [50 Misc 3d 147(A)] |
| Decided on March 11, 2016 |
| 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 March 11, 2016
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1899 Q C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered August 8, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely denied the claim at issue based on plaintiff’s failure to submit it to defendant within 45 days of the date the services had been rendered. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment, finding that the affidavit of plaintiff’s billing supervisor was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant.
Contrary to defendant’s sole contention on appeal, the affidavit of plaintiff’s billing supervisor was sufficient to demonstrate the existence of a triable issue of fact with respect to whether the claim had been timely submitted to defendant. Consequently, defendant did not prove, as a matter of law, that plaintiff had failed to comply with the regulation requiring submission of claims within 45 days of the services rendered (see 11 NYCRR 65-1.1).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))
Reported in New York Official Reports at Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))
| Contemporary Acupuncture, P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 50464(U) [51 Misc 3d 132(A)] [51 Misc 3d 132(A)] |
| Decided on March 7, 2016 |
| 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 March 7, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2014-248 S C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), dated December 11, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.
Defendant’s motion for summary judgment dismissing the complaint was based on the alleged failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs). Upon a review of the record, we find that defendant failed to establish a prima facie showing of its entitlement to summary judgment. Among other things, defendant failed to establish as a matter of law that the EUO notices and the denial of claim forms at issue had been properly and timely mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). Consequently, defendant’s motion was properly denied.
Accordingly, the order is affirmed.
Marano, P.J., Iannacci and Garguilo, JJ., concur.
Decision Date: March 07, 2016
Reported in New York Official Reports at Utopia Equip., Inc. v Maya Assur. Co. (2016 NY Slip Op 50463(U))
[*1]| Utopia Equip., Inc. v Maya Assur. Co. |
| 2016 NY Slip Op 50463(U) [51 Misc 3d 132(A)] [51 Misc 3d 132(A)] |
| Decided on March 3, 2016 |
| 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 March 3, 2016
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2013-1618 K C
against
Maya Assurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 24, 2013. The order denied plaintiff’s motion for leave to renew and reargue its opposition to defendant’s prior motion for summary judgment dismissing the complaint.
ORDERED that so much of the appeal as is from the portion of the order that denied the branch of plaintiff’s motion seeking reargument is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, 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 its motion for leave to reargue and renew its opposition to defendant’s prior motion for summary judgment dismissing the complaint.
So much of the appeal as is from the portion of the order that denied the branch of plaintiff’s motion seeking reargument is dismissed, as no appeal lies from that portion of the order (see Ireland v Wilenzik, 296 AD2d 771, 773 [2002]; see also Gosek v Lunt Theatre Co., 89 AD3d 418, 418 [2011]; Arab Am. Found. v Naber, 260 AD2d 588 [1999]; Neff v Steven Schwartzapfel, P.C., 254 AD2d 137 [1998]).
Contrary to plaintiff’s argument, Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), decided after the determination of defendant’s prior motion, did not constitute a change in the law (see e.g. Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]). Thus, plaintiff failed to demonstrate that there had been a change in the law that would alter the prior determination (see CPLR 2221 [e] [2]), and the branch of plaintiff’s motion seeking leave to renew was properly denied (see Jackson v Westminster House Owners Inc., 52 AD3d 404 [2008]).
Accordingly, the order, insofar as reviewed, is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: March 03, 2016New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50259(U))
Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50259(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered August 1, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
New Millennium Medical Imaging, P.C. (New Millennium) commenced this action against American Transit Ins. Co. (American Transit) to recover first-party no-fault benefits for medical services that had been provided to plaintiff’s assignor as a result of injuries, which, the complaint stated, had been sustained in an automobile accident that had occurred on March 17, 2012. Before New Millennium commenced this action, the insurer, American Transit, had commenced a declaratory judgment action in Supreme Court, New York County, against New Millennium and its assignor, Nicholas Toc, among others, alleging that the providers’ claims had been timely and properly denied on the ground that their assignor had failed to attend duly scheduled independent medical examinations (IMEs). After the providers had failed to appear in the Supreme Court action, American Transit moved in the Supreme Court for an order granting it leave to enter a default declaratory judgment, declaring that, because of the assignor’s nonappearances at the scheduled IMEs, New Millennium and the other providers were not entitled to no-fault coverage “for the motor vehicle accident that occurred on 4/2/2012.” The Supreme Court issued a declaratory judgment, dated September 11, 2013, declaring that American Transit had no duty to pay no-fault claims “with respect to the April 02, 2012 collision.”
Thereafter, American Transit moved in the Civil Court, pursuant to CPLR 3212, for summary judgment dismissing New Millennium’s complaint, contending that the action is barred by virtue of the declaratory judgment. New Millennium opposed the motion. The affirmation of American Transit’s counsel, and a letter submitted by the insurer as an exhibit to the motion, both referred to an accident that had occurred on March 17, 2012. By order entered August 1, 2014, the Civil Court denied American transit’s motion, finding that an issue of fact exists as to whether the Supreme Court judgment applies to the present litigation.
“The 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 [*2]material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Res judicata, or claim preclusion, may be invoked where a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Albanez v Charles, 134 AD3d 657 [2015]; Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, American Transit failed to establish its entitlement to summary judgment, because its own papers presented two different accident dates, March 17, 2012 and April 2, 2012. Thus, a question of fact exists as to whether plaintiff’s claim arose out of the same transaction as was in controversy in the Supreme Court litigation (see Schuylkill Fuel Corp., 250 NY at 306-307; Albanez, 134 AD3d 657; Eagle Surgical Supply, Inc., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U]). We decline to consider the assignment of benefits form which American Transit proffered to show the date of the accident at issue, as the assignment of benefits form was submitted for the first time in American Transit’s reply papers (see L’Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 [2013]; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]).
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 01, 2016
Reported in New York Official Reports at Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co. (2016 NY Slip Op 50255(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Kemper Auto & Home Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 27, 2013. The order denied plaintiff’s motion to restore the action to the trial calendar.
ORDERED that the order is affirmed, with $25 costs.
This action by a provider to recover assigned first-party no-fault benefits was “marked off” the trial calendar on April 3, 2013. On April 8, 2013, plaintiff moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In an affirmation in support of the motion, plaintiff’s counsel stated that the case had been “marked off” when plaintiff’s witness was “unavailable and unable to appear” for trial. Counsel further stated that “the action is ready to resume trial.” In opposition to the motion, defendant’s attorney argued, among other things, that plaintiff’s motion failed to demonstrate that plaintiff is presently ready for trial. The Civil Court denied plaintiff’s motion, stating, erroneously, that more than one year had passed since the case had been marked off without restoration. The court also stated, citing CPLR 3404, that plaintiff had failed to demonstrate “a reasonable excuse, a meritorious claim, lack of intent to abandon [and a] lack of prejudice to [defendant].”
At the outset, we note that, contrary to the determination of the Civil Court, plaintiff’s motion to restore was made within one year after the action had been “marked off” the trial calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). We further note that CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), not to cases in the Civil Court.
Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), when an action has been stricken from the calendar and a party moves within a year to restore the action to the calendar, that motion “must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.” Here, plaintiff’s counsel’s bare assertion, that the action had been stricken because plaintiff’s witness had been “unavailable,” was conclusory, since it failed to provide any indication as to who the witness was or any reason as to why the witness was unavailable. As plaintiff failed to proffer a satisfactory explanation for the action having been stricken from the calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]), plaintiff’s motion was properly denied. In view of the foregoing, we do not reach the parties’ remaining contentions.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 01, 2016
Reported in New York Official Reports at Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50254(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
National Liability & Fire Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 12, 2013. 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied his motion for summar judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Even if plaintiff had made a prima facie case, an issue we do not decide, his motion for summary judgment was properly denied. The papers submitted by defendant in opposition to plaintiff’s motion for summary judgment were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on the ground of plaintiff’s assignor’s fraudulent procurement of the insurance policy in question by virtue of her misrepresentation of her place of residence in order to obtain insurance at a lower premium. Furthermore, defendant’s papers demonstrated that there is, at least, a triable issue of fact as to whether the assignor had provided a fraudulent address when she obtained the insurance policy.
With respect to defendant’s cross motion, “[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]). No-fault benefits may be denied to an insured where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon the record before us, we find [*2]that defendant failed to establish as a matter of law that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums (see Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51322[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: March 01, 2016
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Infinity Group (2016 NY Slip Op 50257(U))
[*1]| Great Health Care Chiropractic, P.C. v Infinity Group |
| 2016 NY Slip Op 50257(U) [50 Misc 3d 144(A)] |
| Decided on March 1, 2016 |
| 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 March 1, 2016
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ.
2014-1016 Q C
against
Infinity Group, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff was ineligible for reimbursement of no-fault benefits due to the cancellation of the Pennsylvania automobile insurance policy at issue in this case, as a result of the policyholder’s nonpayment of premiums. By order entered April 3, 2014, from which defendant appeals, the Civil Court denied defendant’s motion on the ground that defendant’s notice of termination of the policy did not comply with the requirements of Pennsylvania law.
In order to prevail on its motion for summary judgment dismissing the complaint, defendant was required to demonstrate that the insurance policy at issue had been validly cancelled in accordance with Pennsylvania law (see generally Compas Med., P.C. v Infinity Group, 46 Misc 3d 146[A], 2015 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Although defendant’s motion papers contained a supporting affirmation by defense counsel and accompanying documents, and purported to include an affidavit by defendant’s litigation specialist, in fact, the affidavit of defendant’s litigation specialist was not included. In the absence of that affidavit, defendant failed to show that it had fully complied with Pennsylvania’s requirements for cancelling a policy due to nonpayment of premiums. As a result, defendant did not establish its prima facie entitlement to summary judgment dismissing the complaint.
We decline plaintiff’s request to search the record and award it summary judgment.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 01, 2016