Reported in New York Official Reports at IMA Acupuncture, P.C. v Hertz Co. (2016 NY Slip Op 50258(U))
[*1]| IMA Acupuncture, P.C. v Hertz Co. |
| 2016 NY Slip Op 50258(U) [50 Misc 3d 145(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| This opinion is uncorrected and will not be published in the printed Official Reports.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.
2014-1045 Q C
against
Hertz Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 2, 2014, deemed from a judgment of the same court entered April 10, 2014 (see CPLR 5512 [a]). The judgment, entered pursuant to the April 2, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,414.54.
ORDERED that the judgment is reversed, with $30 costs, the order entered April 2, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint and opposed plaintiff’s motion for summary judgment on the ground that plaintiff had breached the terms of the insurance policy by failing to appear at duly scheduled examinations under oath. After plaintiff submitted opposition to defendant’s cross motion, defendant’s attorney asserted, in a reply affirmation, that plaintiff’s action is barred by the doctrine of res judicata, in that, since making its cross motion, defendant had been awarded a declaratory judgment entered on default in Supreme Court, New York County, which found that defendant had no duty to pay any no-fault claims to plaintiff (among others) with respect to the motor vehicle accident at issue. By order entered April 2, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from the April 2, 2014 order is deemed to be from the judgment entered pursuant thereto on April 10, 2014 (see CPLR 5512 [a]), which awarded plaintiff the principal sum of $3,414.54.
At the outset, we note that, contrary to plaintiff’s argument on appeal, defendant could not have raised the affirmative defense of res judicata in its answer, as the declaratory judgment action had not yet been filed at the time defendant answered the instant complaint. Similarly, the judgment in the declaratory judgment action was not rendered until after defendant had made its cross motion for summary judgment in this case. Thus, as defendant argues, it could not have sought summary judgment dismissing the complaint based on res judicata initially.
In any event, this court may take judicial notice of undisputed court records and files, including the judgment in the Supreme Court declaratory judgment action (see Renelique v State-Wide Ins. Co., ___ Misc 3d ___, 2016 NY Slip Op 50096[U] App Term, 2d Dept, 2d, 11th & [*2]13th Jud Dists 2016]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11 [2002]). In light of the Supreme Court’s declaratory judgment, defendant’s cross motion to dismiss should have been granted under the doctrine of res judicata (see Renelique, ___ Misc 3d ___, 2016 NY Slip Op 50096[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court’s declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; SZ Med., P.C., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).
Accordingly, the judgment is reversed, the order entered April 2, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 01, 2016Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2016 NY Slip Op 50297(U))
Reported in New York Official Reports at Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2016 NY Slip Op 50297(U))
[*1]| Acuhealth Acupuncture, P.C. v New York City Tr. Auth. |
| 2016 NY Slip Op 50297(U) [50 Misc 3d 1228(A)] |
| Decided on March 1, 2016 |
| Supreme Court, Kings County |
| Genovesi, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through March 21, 2016; it will not be published in the printed Official Reports. |
Decided on March 1, 2016
Acuhealth
Acupuncture, P.C., a/a/o LANCY ESTREMERA, Petitioner,
against New York City Transit Authority, Respondent. |
9533/2015
Daniel Klein, Esq.
Tsisirelman Law Firm PLLC
Attorneys for Petitioner
79-09B Northern Boulevard
Jackson Heights, New York 11372
Aaron E. Meyer, Esq.
Foley, Smit, O’Boyle & Weisman
Attorneys for Respondent
300 Wheeler Road,
Hauppauge, New York 11788
Lara J. Genovesi, J.
Upon the foregoing papers, the petitioner Acuhealth Acupuncture, P.C, moves for an order (1) pursuant to CPLR § 7511, vacating a master arbitrator’s award; (2) granting the petitioner $1,831.24 plus statutory interest, attorney’s fees, costs and disbursements including arbitration fees; (3) or in the alternative remanding the matter to arbitration for further proceedings not inconsistent with the insurance law and implementing regulations and case law [*2]thereunder; and (4) such other and further relief as the Court deems just and proper. Respondent the New York City Transit Authority (NYCTA), opposes the application
Petitioner, Lancy Estremera, was injured in an automobile accident on April 3, 2010. The respondent, NYCTA, is self-insured. At the time of the accident the automobile insurance policy contained New York State no fault law benefits for health insurance expenses. Petitioner, Acuhealth Acupuncture, P.C. (Acuhealth), performed services and is the assignee for Lancy Estremera. Acuhealth did not receive payment in full for services provided and filed a request for arbitration.
Robyn McAllister, an arbitrator designated by the American Arbitration Association, rendered an arbitration award on November 23, 2014. The issue presented to the arbitrator was “whether applicant is entitled to reimbursement for acupuncture treatment where the policy of insurance has been exhausted.” (Notice of Petition, Exhibit 2, Arbitration Award). Acuhealth sought reimbursement in the amount of $1,831.24. “Respondent partially denied the majority of the Applicant’s claim predicated on the Worker’s Compensation Fee Schedule and denied the remainder of the claim based on exhaustion of the policy of insurance” (Notice of Petition, Exhibit 2, Arbitration Award). Respondent paid for all of the acupuncture services on the chiropractic fee schedule. The claims in dispute are as follows:
| Dates of Service | Billed | Bill Received | Disputed Amount |
|---|---|---|---|
| 07/07/10-08/07/10 | 08/16/10 | 08/20/10 | $955.09 |
| 09/03/10-09/30/10 | 10/13/10 | 10/27/10 | $270.07 |
| 10/07/10-10/14/10 | 11/16/10 | 12/02/10 | $253.02 |
| 10/23/10-11/03/10 | 11/16/10 | 12/02/10 | $107.44 |
| 11/04/10-11/18/10 | 12/06/10 | 12/10/10 | $80.50 |
| 01/01/11-01/19/11 | 02/03/11 | 02/03/11 | $165.04 |
The arbitrator found that the partial denials for dates of service 07/07/10-8/7/10; 10/07/10-10/14/10; and 11/04/10-11/18/10 “were late on their face”. And there was no specific denial for services on 01/01/11-1/19/11.[FN1]
The arbitrator further found that Acuhealth “sustained its burden of demonstrating a prima facie showing of entitlement to reimbursement for the acupuncture service”. However, at the time that Acuhealth’s last bill was received on February 7, 2011, the policy was exhausted. The arbitrator stated that the “Applicant may not recover any of the outstanding fees since any such award would exceed my authority”. In making this determination, the arbitrator relied, in part, on Matter of Brijmohan v. State Farm Ins. Co., (92 NY2d 821, 699 N.E.2d 414, 677 N.Y.S.2d 55 [1998]) and Matter of State Farm Ins. Co. v. Credle (228 AD2d 191, 643 N.Y.S.2d 97 [1 Dept., 1996]).
The petitioner requested a review of the arbitrator’s award by a master arbitrator. Master Arbitrator Marilyn Felenstein rendered an award on April 28, 2015. The master arbitrators’ award states that “Applicant seeks vacatur of the award as being arbitrary and capricious and incorrect as a matter of law because it did not take into consideration the proper priority of payment” (Notice of Petition, Exhibit 3, Master Arbitration Award). The master arbitrator [*3]award stated that,
In the award of the lower arbitrator, it is clearly explained that an arbitration award made in excess of the contractual limits of an insurance policy would be in excess of the arbitrator’s authority. After consideration of the briefs of both parties, it is determined that the lower arbitrator has set forth a rational basis for the award as issued. The lower arbitrator correctly refused to exceed the authority granted by statute and case law and denied the claim. The request for the vacaur [sic] of the award is denied and the award is sustained as written.
The petitioner commenced the instant proceeding pursuant to CPLR 7511(b) to vacate the arbitration award contending that the master arbitrator’s award is arbitrary, capricious, irrational, and in violation of the letter and the spirit of the no-fault law. In opposition to the petition, NYCTA asserted that the arbitrator’s determination had a reasonable hypothesis and was not arbitrary and capricious.
The Standard of Review
It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power (see Matter of New York City Tr. Auth. v. 1199 69 Transport Workers’ Union of Am., Local 100, AFL—CIO, 6 NY3d 332, 336, 812 N.Y.S.2d 413, 845 N.E.2d 1243 [2005]; Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v. Board of Educ. of City School Dist. of City of NY, 1 NY3d 72, 79, 769 N.Y.S.2d 451, 801 N.E.2d 827 [2003]; CPLR 7511[b][1][iii] ). Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator’s decision (see Transport Workers’ Union of Am., Local 100, AFL—CIO, 6 NY3d at 336, 812 N.Y.S.2d 413, 845 N.E.2d 1243 [“(C)ourts are obligated to give deference to the decision of the arbitrator. This is true even if the arbitrator misapplied the substantive law in the area of the contract” (citations omitted)]).
In re Falzone (New York Cent. Mut. Fire Ins. Co.), 15 NY3d 530, 939 N.E.2d 1197, 914 N.Y.S.2d 67 [2010]).
The Codes Rules and Regulations of the State of New York state that an arbitration award may be vacated or modified solely by appeal to a master arbitrator, when “an award rendered in an arbitration under section 65-4.4 or 65-4.5 of this Subpart, was incorrect as a matter of law (procedural or factual errors committed in the arbitration below are not encompassed within this ground)” (11 NYCRR 65-4.10 (a) (4); see Colon v. GEICO, 18 AD3d 467,794 N.Y.S.2d 431 [2 Dept., 2005]; see also Matter of Petrofsky, 54 NY2d 207, 445 N.Y.S.2d 77, 429 N.E.2d 755 [1981]). “The power of the master arbitrator to review factual and procedural issues is limited to whether the arbitrator acted in a manner that was arbitrary and capricious, irrational or without a plausible basis'” (Matter of Petrofsky, 54 NY2d 207, 211, 445 N.Y.S.2d 77, 429 N.E.2d 755).” (Liberty Mut. Ins. Co. v. Spine Americare Medical, P.C., 294 AD2d 574, 743 N.Y.S.2d 144 [2 Dept., 2002]). Further, an arbitration award may be modified or vacated pursuant to CPLR section 7511(b)(1)(iii) if it “manifestly exceeds a specific, enumerated limitation on the arbitrator’s power.” (Kowaleski v. New York State Department of Correctional Services, 16 NY3d 85, 942 N.E.2d 291, 917 N.Y.S.2d 82 [2010]).
Since arbitration pursuant to Insurance Law §5105(b) is compulsory, the arbitrators [*4]determination is subject to “closer judicial scrutiny” than an arbitration conducted pursuant to a voluntary agreement (Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 674 N.E.2d 134, 9652 N.Y.S.2d 584 [1996]).
“Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether any reasonable hypothesis can be found to support the questioned interpretation'” (Fiduciary Ins. Co. v. American Bankers Ins. Co. of Florida, 132 AD3d 40, 14 N.Y.S.3d 427 [ 2 Dept., 2015], quoting Shand v. Aetna Ins. Co., 74 AD2d 442, 428 N.Y.S.2d 462 [2 Dept., 1980]).
At issue here is the interplay of the priority of lien regulation and the arbitrators authority to direct payment in excess of the no fault policy.
Priority of Lien Regulation
“The no-fault regulations provide that “[n]o-[f]ault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5” (11 NYCRR 65-3.8 [a] [1]). With exceptions not relevant to this appeal, an insurer may not deny a claim “prior to its receipt of verification of all of the relevant information requested pursuant to section 65-3.5 (11 NYCRR 65-3.8 [b] [3]).” (Nyack Hosp. v. General Motors Acceptance Corp., 8 NY3d 294, 864 N.E.2d 1279, 832 N.Y.S.2d 880 [2007]).
The insurance regulation which dictates priority states that,
When claims aggregate to more than $50,000, payments for basic economic loss shall be made to the applicant and/or an assignee in the order in which each service was rendered or each expense was incurred, provided claims therefor were made to the insurer prior to the exhaustion of the $50,000. If the insurer pays the $50,000 before receiving claims for services rendered prior in time to those which were paid, the insurer will not be liable to pay such late claims. If the insurer receives claims of a number of providers of services, at the same time, the payments shall be made in the order of rendition of services.The Court of Appeals in Nyack Hosp. v. General Motors Acceptance Corp. (8 NY3d 294, supra) stated that,
(11 NYCRR 65-3.15).
the Superintendent of Insurance, in adopting revised Regulation 68 (repealing and replacing the prior 11 NYCRR part 65), determined that these regulations were “the most effective means of advancing the legislative intent of providing prompt payment of [no-fault] benefits as the loss is incurred, while reducing rampant abuse.
. . .
In sum, the priority-of-payment regulation came into play . . when the insurer received the requested inpatient hospital records, which established verified claims aggregating more than $50,000. At that point, the insurer should have paid the hospital ahead of any other unpaid verified claims for services rendered or expenses incurred later than the services billed by the hospital, up to the policy’s limits. The insurer was required to pay these moneys to the hospital . . . .
Arbitrators Authority to Direct Payment in Excess of the No Fault Policy
“Relief granted by an arbitrator cannot exceed a specifically enumerated limitation on his [*5]or her power [citations omitted]” (Merrick Union Free School Dist. v. Merrick Faculty Ass’n, Inc., 87 AD3d 536, 928 N.Y.S.2d 60 [2 Dept., 2011]). “It is well settled that an arbitration award may be vacated upon the ground that the arbitrator exceeded his or her authority by making an award in excess of the limits fixed by the insurance policy (see, Matter of Brijmohan v. State Farm Ins. Co., 92 NY2d 821, 677 N.Y.S.2d 55, 699 N.E.2d 414; Matter of Sagona v. State Farm Ins. Co., 218 AD2d 660, 630 N.Y.S.2d 352; Matter of Allstate Ins. Co. v. Silver, 225 AD2d 690, 639 N.Y.S.2d 485).” (Spears v. New York City Transit Authority, 262 AD2d 493, 692 N.Y.S.2d 100 [2 Dept., 1999]).
Analysis
The arbitrator’s award essentially stated that Acuhealth billed for services provided and partial payment was made by the NYCTA. Although NYCTA’s denials were late, the arbitrator was unable to award the disputed portion of the bills, $1,831.24, on November 23, 2014, since the policy was exhausted as of February 1, 2011. The arbitrator stated that to do so would exceed her authority. The master arbitrator found that the arbitrator’s award was not arbitrary, capricious nor incorrect as a matter of law inasmuch as the award of $1,831.24 would be in excess of the policy limits.
This Court appreciates the petitioner’s valid argument, however, the standard of review of an arbitration award is limited. Acuhealth failed to demonstrate, by clear and convincing evidence, the existence of any of the statutory grounds for vacating the master arbitrator’s award (see generally Matter of Collazo v. Suffolk County, — AD3d —, 2016 NY Slip Op 01321 [2 Dept., 2016]). Here, petitioner’s claim that the arbitrator erred in failing to apply the priority of payment falls squarely within the category of claims of legal error, which courts generally cannot review. Further, a reasonable hypothesis can be found to support the master arbitrator’s interpretation that the arbitrator does not have the authority to direct payment in excess of the no fault policy. Petitioner’s reliance on Nyack is insufficient to warrant a determination that the master arbitrator’s award was arbitrary, capricious or incorrect as a matter of law. The Court in Nyack concluded that while awaiting information to verify a pending claim, the priority of payment regulation does not preclude the insurer from paying other verified claims. The Nyack action was a court proceeding, de novo — it did not involve an arbitration. The standard herein is quite different. Petitioner has not presented any appellate authority permitting the arbitrator to exceed a specific enumerated limitation on the arbitrators power by rendering an award in excess of the policy limits. The master arbitrator in confirming the lower arbitration award had evidentiary support and a rational basis, and was not arbitrary, capricious, irrational or without a plausible basis (see Mercury Cas. Co. v. Healthmakers Medical Group, P.C., 67 AD3d 1017, 888 N.Y.S.2d 762 [2 Dept., 2009]; see also Matter of Petrofsky, 54 NY2d 207, supra).
The petition to vacate the master arbitrator’s award is denied. “Upon denying a motion to vacate or modify an arbitration award, the court must confirm the award (see CPLR 7511[e]; 1018 Larsen & Toubro Ltd. v. Millenium Mgt. Inc., 45 AD3d 453, 845 N.Y.S.2d 330; Matter of American Fed. Group v. AFG Partners, 277 AD2d 119, 120, 717 N.Y.S.2d 42).” (id.). Accordingly, the master arbitrator’s award is confirmed. The foregoing constitutes the decision and order of this Court.
ENTER:
__________________
Hon. Lara J. Genovesi
J.S.C.
Footnote 1: The arbitrator’s award is silent as to the partial denials for services performed on 09/03/10-09/30/10 and 10/23/10-11/03/10.Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 26062)
Reported in New York Official Reports at Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 26062)
| Compas Med., P.C. v Fiduciary Ins. Co. of Am. |
| 2016 NY Slip Op 26062 [51 Misc 3d 66] |
| Accepted for Miscellaneous Reports Publication |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 22, 2016 |
[*1]
| Compas Medical, P.C., as Assignee of Clarence Dupiton, Appellant, v Fiduciary Insurance Company of America, Respondent. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 26, 2016
APPEARANCES OF COUNSEL
The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.
{**51 Misc 3d at 67} OPINION OF THE COURT
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 plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
As a preliminary matter, because plaintiff failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 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. {**51 Misc 3d at 68} 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]), plaintiff failed to demonstrate its prima facie entitlement to summary judgment.
Defendant cross-moved for summary judgment, arguing that one ground upon which it had timely denied plaintiff’s claims was that no one on plaintiff’s behalf had complied with 11 NYCRR 65-1.1, which states that written notice of an accident must be “given” to the insurer “as soon as reasonably practicable, but in no event more than 30 days after the date of the accident” (11 NYCRR 65-1.1 [d]; see also Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [a claimant must “submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident”]). The affidavit of defendant’s no-fault claims manager, submitted in support of defendant’s cross motion, stated that defendant had first learned of the October 14, 2010 accident when it received an NF-2 form on November 15, 2010, thereby demonstrating that defendant had not received written notice of the accident within 30 days after it had occurred.
Plaintiff argues that mailing written notice of the accident to the insurer on or before the 30th day after the accident will satisfy the 30-day notice requirement of 11 NYCRR 65-1.1. We [*2]agree. We note that 11 NYCRR 65-1.1 does not define what it means for a written notice to be “given,” and the Court of Appeals did not elaborate when it stated that a claimant must “submit” a notice of claim (Hospital for Joint Diseases, 9 NY3d at 317). However, 11 NYCRR 65-3.4 (b) requires no-fault insurers to “forward to the applicant the prescribed application for motor vehicle no-fault benefits (NYS form [NF-2]) accompanied by the prescribed cover letter (NYS form [NF-1]),” and the prescribed cover letter included in Appendix 13 to Regulation 68 states that the NF-2 application for no-fault benefits (which satisfies the written notice requirement [see 11 NYCRR 65-3.3 (d)]) “must be sent to [the insurer] within 30 days of the accident date if your original notice to [the insurer] was not in writing.” We hold that mailing the written notice of claim to the insurer within 30 days of the accident satisfies the requirement that written notice be “sent” to the insurer, as instructed by the prescribed cover letter, and that written notice be “given” to the insurer, as required by 11 NYCRR 65-1.1.
Here, defendant did not demonstrate, prima facie, that timely written notice of the accident had not been mailed to it. Rather, the 30th day after the accident fell on a Saturday,{**51 Misc 3d at 69} November 13, 2010, making Monday, November 15, 2010 the date on which defendant alleges it first received an NF-2 form, the last date by which written notice of the accident could be timely mailed (see General Construction Law §§ 25, 25-a; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]; see also General Construction Law § 20 [providing, in pertinent part, that “(t)he day from which any specified period of time is reckoned shall be excluded in making the reckoning”]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment is denied.
Pesce, P.J., Weston and Elliot, JJ., concur.
Reported in New York Official Reports at Metropolitan Diagnostic Med. Care, P.C. v American Commerce Ins. Co. (2016 NY Slip Op 50216(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Commerce Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
Metropolitan Diagnostic Medical Care, P.C. (Metropolitan) commenced this action in the Civil Court on March 14, 2012 to recover first-party no-fault benefits for services provided to its assignor as a result of injuries that had been sustained in a motor vehicle accident. American Commerce Insurance Company (ACIC) answered the complaint, asserting, among other things, that Metropolitan’s action is barred by the doctrines of collateral estoppel and res judicata. Approximately one week before Metropolitan commenced its Civil Court action, ACIC had commenced a declaratory judgment action in Supreme Court, New York County, against Metropolitan and its assignor, Kester Alleyne, among others, alleging that Alleyne had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, ACIC is not obligated to pay any claims for first-party no-fault benefits submitted by Metropolitan as assignee of Alleyne arising from the accident in question. ACIC subsequently moved in Supreme Court for an order, pursuant to CPLR 3215, granting ACIC a default judgment. By “order and judgment” entered February 7, 2013, the Supreme Court awarded ACIC a declaratory judgment on default, declaring that ACIC had no obligation to pay Metropolitan or its assignor for any claims for no-fault benefits under the claim number at issue.
Thereafter, ACIC moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that Metropolitan’s cause of action is barred under the doctrines of res judicata and collateral estoppel. In opposition to the motion, Metropolitan submitted an affirmation by its counsel, who argued, among other things, that Metropolitan had been unaware of the Supreme Court action when it had commenced this action in the Civil Court, and that ACIC’s answer in the Civil Court had failed to assert the pendency of the declaratory judgment action as an affirmative defense. By order entered January 24, 2014, the Civil Court granted the branch of ACIC’s motion seeking summary judgment dismissing the complaint.
In light of the “order and judgment” in the declaratory judgment action, the present action [*2]is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). We note that, contrary to Metropolitan’s contention, defendant’s answer in the Civil Court, which answer had been filed after the Supreme Court declaratory judgment action had been commenced but before the default “order and judgment” had been entered, asserted that another action was “pending between the same parties for the same cause of action in a different court.” We also find no merit in the particular equitable estoppel argument raised by Metropolitan on appeal. Metropolitan’s remaining arguments similarly lack merit.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 23, 2016
Reported in New York Official Reports at Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
21st Century North America Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff’s motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order entered March 27, 2014 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 of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant’s motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant’s motion. By order entered November 21, 2012, the Civil Court granted defendant’s motion “with no opposition” and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant’s motion for summary judgment. Defendant opposed plaintiff’s motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff’s motion.
The Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff’s failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff’s claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant’s [*2]summary judgment motion (see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 23, 2016
Reported in New York Official Reports at Apollo Chiropractic Care, P.C. v MVAIC (2016 NY Slip Op 50212(U))
[*1]| Apollo Chiropractic Care, P.C. v MVAIC |
| 2016 NY Slip Op 50212(U) [50 Misc 3d 142(A)] |
| Decided on February 23, 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 February 23, 2016
PRESENT: : MARANO, P.J., GARGUILO and CONNOLLY, JJ.
2013-107 S C
against
MVAIC, Appellant.
Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered September 18, 2012. The judgment, upon an agreed statement of facts, awarded plaintiff the principal sum of $324.33.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue in accordance with the decision herein.
After issue was joined in this action by a provider to recover assigned first-party no-fault benefits, the parties submitted an agreed statement of facts to the court for a determination (see Central Radiology Servs., P.C. v MVAIC, 46 Misc 3d 74 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Marc Habif, D.C./Complete Care Chiropractic v Kemper Auto & Home Ins., 28 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). The parties stipulated that plaintiff had timely submitted its claim forms to recover assigned no-fault benefits to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) and that MVAIC had attempted to send verification requests to plaintiff, but had mailed them to an address other than plaintiff’s address. The District Court awarded judgment in favor of plaintiff, finding that, since MVAIC had sent its verification requests to the wrong address, MVAIC was precluded from interposing its defense that plaintiff did not establish compliance with a condition precedent to coverage, i.e., the failure to submit a sworn notice of intention to make claim form to MVAIC (see e.g. Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).
“Pursuant to Insurance Law § 5221 (b) (2), to be deemed a covered person’ and thereby have [only] such rights as a covered person may have under [Insurance Law article 51],’ an injured person must be a qualified person,’ as that term is defined in Insurance Law § 5202 (b), and must have complied with all of the applicable requirements of Insurance Law article 52 (e.g. Insurance Law § 5208)” (Howard M. Rombon, Ph.D, P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). The filing of a timely affidavit providing MVAIC with notice of intention to make a claim is a condition precedent to the right to apply for payment from MVAIC (see Insurance Law § 5208 [a]). Unless plaintiff’s assignor complied with the requirements of Insurance Law article 52, including, but not limited to, Insurance Law § 5208, plaintiff’s assignor is not deemed to be a “covered person” [*2]and, as a result, does not have the rights afforded to a “covered person” under Insurance Law article 51 (Insurance Law § 5221 [b] [2]; Olmecs Med. Supplies, Inc. v MVAIC, 38 Misc 3d 140[A], 2013 NY Slip Op 50218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]).
Contrary to the District Court’s conclusion, MVAIC’s proffered defense of lack of coverage is not subject to preclusion (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997] [a denial based upon a policy exclusion from coverage differs from a denial based upon a lack of coverage, in that a lack of coverage defense is not subject to preclusion since there was never any coverage in effect]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]). As the parties’ stipulated facts do not establish whether plaintiff’s assignor is a “covered person” entitled to rights under Insurance Law article 51, it is unknown whether this condition precedent was satisfied (see Olmecs Med. Supplies, Inc., 38 Misc 3d 140[A], 2013 NY Slip Op 50218[U]; Howard M. Rombon, Ph.D, P.C., 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U]). We note that “[a] court is without discretion to allow late filing [of a notice of intention to make claim form] for any reasons other than those set forth in the statute” (Matter of Ramos v Motor Vehicle Acc. Ind. Corp., 54 AD2d 734, 734 [1976]), and that MVAIC may not be estopped from raising the failure to file a notice of intention to make claim form as MVAIC does not have a duty to notify the claimant that the notice of intention to make claim form had not been timely submitted (see Zeigler v Motor Veh. Acc. Indem. Corp., 53 AD2d 590 [1976]).
Accordingly, the judgment is reversed and the matter is remitted to the District Court where the parties may stipulate to a more definite statement of facts or proceed to trial on the disputed issue (see Central Radiology Servs., P.C., 46 Misc 3d 74; Marc Habif, D.C./Complete Care Chiropractic, 28 Misc 3d 55).
Marano, P.J., Garguilo and Connolly, JJ., concur.
Decision Date: February 23, 2016Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))
Reported in New York Official Reports at Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))
| Lenox Hill Radiology v Great N. Ins. Co. |
| 2016 NY Slip Op 50206(U) [50 Misc 3d 142(A)] |
| Decided on February 22, 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 February 22, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and CONNOLLY, JJ.
2014-1937 S C
against
Great Northern Insurance Company, Doing Business as CHUBB GROUP OF INSURANCE COMPANIES, Appellant.
Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated February 25, 2014. 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, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion for summary judgment dismissing the complaint. While defendant made a prima facie showing that it had not received plaintiff’s claim form, the affidavit of the mailing supervisor in plaintiff’s attorneys’ offices established that the claim at issue had been mailed to defendant. Thus, a triable issue of fact exists as to the submission of the claim form (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[U], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Moreover, contrary to defendant’s contention, even if plaintiff failed to submit the claim form in a timely manner, untimely submission, in and of itself does not entitle defendant to summary judgment dismissing the complaint (see e.g. SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, the order, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Connolly, JJ., concur.
Decision Date: February 22, 2016
Reported in New York Official Reports at Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 8, 2008. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, among other things, that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, finding that the affidavit of plaintiff’s president and medical biller was insufficient to establish that plaintiff’s claim forms were admissible as business records. An appeal by plaintiff ensued, and by decision and order entered October 6, 2009, this court affirmed the order of the District Court. Thereafter, plaintiff moved for leave to renew its motion based upon a change in the law with respect to the requirements for the establishment by a plaintiff provider of its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). We note that, while plaintiff did not make its motion until 2014, the motion is not untimely since a final judgment has not been entered (see Dinallo v DAL Elec., 60 AD3d 620 [2009]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]).
It is now settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits [is] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Contrary to the determination of the District Court, plaintiff was not required to establish, as part of its prima facie case, that its claim forms were admissible for the truth of the matters asserted therein pursuant to CPLR 4518 (see Viviane Etienne Med. Care, P.C., 25 NY3d 498). A review of the record before us shows that plaintiff made its prima facie showing and, in opposition, defendant failed to raise a triable issue of fact. With respect to the $802 claim submitted by plaintiff as assignee of Darwin Jimenez, defendant failed to establish that its follow-up notice scheduling an examination under oath (EUO) had been timely mailed (see 11 NYCRR 65-3.6 [*2][b]). Furthermore, with respect to the $1,277 and $995 claims submitted by plaintiff as assignee of Gilberto Estevez, while defendant’s papers reflect that Estevez appeared for an EUO on July 30, 2003, defendant’s own submissions showed that defendant did not deny those claims until October 1, 2003.
Consequently, defendant failed to demonstrate that it had tolled the time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defenses (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), that Jimenez had failed to appear for an EUO, and that the EUO testimony of Estevez had failed to establish proof of the $1,277 and $995 claims.
Accordingly, the order is reversed and plaintiff’s motion for summary judgment is granted.
The decision and order of this court entered herein on October 6, 2009 (25 Misc 3d 128[A], 2009 NY Slip Op 52068[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) are hereby recalled and vacated (see motion decided simultaneously herewith).
Marano, P.J., Garguilo and Connolly, JJ., concur.
Decision Date: February 22, 2016
Reported in New York Official Reports at EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U))
| EMA Acupuncture, P.C. v Travelers Ins. Co. |
| 2016 NY Slip Op 50173(U) [50 Misc 3d 140(A)] |
| Decided on February 18, 2016 |
| Appellate Term, First 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 February 18, 2016
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570955/15
against
Travelers Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, Jr., J.), entered May 7, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Jose A. Padilla, Jr., J.), entered May 7, 2013, affirmed, with $10 costs.
We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant failed to make a prima facie showing of entitlement to summary judgment, since it submitted no evidence from anyone with personal knowledge of plaintiff’s nonappearances at the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The affirmation of defendant’s attorney failed to describe or demonstrate “personal knowledge of the office procedures when a claimant failed to appear for [an EUO]” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [2013]). Nor did the affiant allege that she was assigned to the file and would have conducted the EUO if plaintiff’s principal had appeared (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concurDecision Date: February 18, 2016
Reported in New York Official Reports at Kraemer Bldg. Corp. v Scottsdale Ins. Co. (2016 NY Slip Op 01233)
| Kraemer Bldg. Corp. v Scottsdale Ins. Co. |
| 2016 NY Slip Op 01233 [136 AD3d 1205] |
| February 18, 2016 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Kraemer Building Corp., Respondent, v Scottsdale Insurance Company, Appellant. |
Carroll McNulty & Kull, LLC, New York City (Ann Odelson of counsel), for appellant.
Craig T. Bumgarner, Carmel, for respondent.
Devine, J. Appeal from an order of the Supreme Court (Schick, J.), entered May 29, 2015 in Sullivan County, which, among other things, granted plaintiff’s motion for summary judgment declaring that defendant has a duty to defend and/or indemnify plaintiff in an underlying action.
Defendant issued a commercial general liability insurance policy to plaintiff, a construction firm, effective from October 2008 to October 2009. Plaintiff was the general contractor at a construction site where, in February 2009, Allan Speirs was injured in the course of his work for a subcontractor. Defendant was notified of the occurrence in March 2009. Plaintiff then learned that Speirs had allegedly sustained serious injuries in the accident and had retained counsel and, in January 2010, that information was promptly forwarded to defendant.
Speirs commenced an action against plaintiff and the owner of the construction site in August 2011, alleging violations of Labor Law §§ 200 and 241 (6), as well as common-law negligence. In November 2011, plaintiff was served with the summons and complaint pursuant to Business Corporation Law § 306 but, because its registered agent was the defunct law firm that handled its 1965 incorporation, it did not receive those documents. Plaintiff accordingly defaulted, and neither it nor defendant became aware of the personal injury action until counsel for Speirs alerted defendant to that fact in March 2012. Defendant disclaimed coverage because, among other things, plaintiff had failed to give it notice of the personal injury action as required by the liability policy.
Plaintiff thereafter commenced this action seeking a declaration that defendant is required to defend and indemnify it in the personal injury action. Following joinder of issue, plaintiff moved, and defendant cross-moved, for summary judgment. Supreme Court granted [*2]summary judgment to plaintiff, and defendant now appeals.
We reverse. The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 440 [1997]; see American Tr. Ins. Co. v Sartor, 3 NY3d 71, 75-76 [2004]). “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” (American Tr. Ins. Co. v Sartor, 3 NY3d at 76; see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339 [2005]). At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).[FN1] The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” (Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496 [2002]; see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 339).
There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served (see Insurance Law § 3420 [a] [3]; American Tr. Ins. Co. v Sartor, 3 NY3d at 76; Kalthoff v Arrowood Indem. Co., 95 AD3d 1413, 1415 [2012], lv denied 19 NY3d 815 [2012]). That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” (233 E. 17th St., LLC v L.G.B. Dev., Inc., 78 AD3d 930, 932 [2010]). Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” (Kalthoff v Arrowood Indem. Co., 95 AD3d at 1415; see Briggs Ave. LLC v Insurance Corp. of Hannover, 11 NY3d 377, 381 [2008]; AH Prop., LLC v New Hampshire Ins. Co., 95 AD3d 1243, 1244-1245 [2012]).
Plaintiff nevertheless argues that it is entitled to summary judgment because defendant was not prejudiced by the lack of timely notice of suit, pointing to analogous cases involving supplemental uninsured and underinsured motorists coverage where timely notice of an occurrence, but not of the ensuing legal action, was given (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 475; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). The Court of Appeals observed in those cases, however, that the “no-prejudice” rule had less potency in the context of such coverage because an insurer was able to protect its interests due to its receipt of the separate no-fault claim (see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d at 496-498). In contrast, “[t]he rationale of the no-prejudice rule is clearly applicable to a late notice of lawsuit under a liability insurance policy,” as a liability insurer is [*3]unlikely to obtain pertinent information through other means, impairing its ability “to take an active, early role in the litigation process and in any settlement discussions and to set adequate reserves” (Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d at 340). The “no-prejudice” rule accordingly applies to the case before us, and the failure of defendant to affirmatively establish prejudice is of no moment (see id.; Liberty Moving & Stor. Co., Inc. v Westport Ins. Corp., 55 AD3d 1014, 1016-1017 [2008], lv denied 12 NY3d 709 [2009]; 1700 Broadway Co. v Greater N.Y. Mut. Ins. Co., 54 AD3d 593, 593-594 [2008]).[FN2] Thus, defendant should have been awarded summary judgment dismissing the complaint.
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur. Ordered that the order is reversed, on the law, with costs, plaintiff’s motion denied, defendant’s cross motion granted, summary judgment awarded to defendant and complaint dismissed, and it is declared that defendant has no duty to defend or indemnify plaintiff in the underlying action.
Footnotes
Footnote 1:Amendments to Insurance Law § 3420 subsequently took effect that prevented an insurer from disclaiming coverage “unless the failure to provide timely notice has prejudiced” it (Insurance Law § 3420 [a] [5]; [c] [2], as added by L 2008, ch 388; see Rosier v Stoeckeler, 101 AD3d 1310, 1312 [2012]).
Footnote 2:Regardless of the fact that defendant was not required to show prejudice, plaintiff is far from persuasive in asserting that defendant could not have been prejudiced by the absence of timely notice of suit. As a result of the lack of notice, defendant lost the opportunity to “appear and interpose an answer” on plaintiff’s behalf as of right, although counsel for Speirs was apparently willing to show leniency in that regard (American Tr. Ins. Co. v Rechev of Brooklyn, Inc., 57 AD3d 257, 257 [2008]).