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

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 20, 2011. The order denied plaintiffs’ motion for summary judgment on the third cause of action.

ORDERED that so much of the appeal as is by plaintiff Westchester Medical Center as assignee of Earlyn Roberts, and by plaintiff The New York and Presbyterian Hospital as assignee of Mordechai Neustadt, is dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order, insofar as appealed from by plaintiff The New York Hospital Medical Center of Queens as assignee of Rayal Belle, is affirmed, without costs.

In this action by providers to recover assigned first-party no-fault benefits, the District [*2]Court properly denied the branch of plaintiffs’ motion seeking summary judgment in favor of plaintiff The New York Hospital Medical Center of Queens on the ground that said plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see NYU Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co., 38 Misc 3d 41 [App Term, 9th & 10th Jud Dists 2012]; New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from by plaintiff The New York Hospital Medical Center of Queens as assignee of Rayal Belle, is affirmed.

Nicolai, P.J., LaSalle and Tolbert, JJ., concur.
Decision Date: August 08, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Elizabeth A. Taylor, J.), dated November 23, 2010, which denied its motion to dismiss plaintiff’s action as time-barred.

Per Curiam.

Order (Elizabeth A. Taylor, J.), dated November 23, 2010, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Even accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as required on a motion to dismiss pursuant to CPLR 3211(a)(5) (see Island ADC, Inc., 49 AD3d 815 [2008]), we conclude that this action for assigned first-party no-fault benefits is time-barred. The complaint alleges that “health services” were rendered to the assignor on January 9, 2003, that a bill for such services was “timely received” by defendant insurer, and that defendant failed to properly deny the bill within 30 days or request additional verification. Inasmuch as plaintiff was required to submit the proof of claim no later than 45 days after the services were rendered (see 11 NYCRR 65-1.1[d]; New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 589-590 [2011]), and the claim accrued 30 days thereafter (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]), this action, commenced on September 18, 2009, is barred by the governing six-year statute of limitations (id; Flatlands Acupuncture, P.C. v Fireman’s Fund Ins. Co., 32 Misc 3d 17 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 19, 2013

Civil Court of the City of New York, Kings County

47305/2011

Attorney Information:

Bruno, Gerbino & Soriano, LLP (Attorney for Defendant)

445 Broad Hollow Road, Suite 220

Melville, New York 11747

Law Offices of Emilia Rutigliano, P.C. (Attorney for Plaintiff)

1733 Sheepshead Bay Road, Suite 11

Brooklyn, New York 11235

Ingrid Joseph, J.

Part 41

Index No.: 47305/2011

Motion Cal. No.: 103/104

DECISION/ORDER

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

PapersNumbered

Notice of Motion and Affidavits Annexed .1 – 2

Cross Motion and Affidavits Annexed,……………3-4

Answering Affidavit ……………………………………..5

Replying Affidavits …….. 6In this action by a provider to recover assigned first-party no fault benefits, the plaintiff seeks summary judgment, and the defendant cross moves for the same relief.

Plaintiff claims that it provided medical services to assignor, Joseph Howe (“Mr. Howe”), for injuries that he sustained as a result of a motor vehicle accident that occurred on 11/07/09. The plaintiff established by proof in admissible form that it sent bills to the defendant for dates of service 12/09/09 to 1/06/10 ($718.17); 1/07/10 to 2/02/10 ($743.60); 2/05/10 to 3/02/10 ($743.60); and 7/06/10 to 8/14/10 ($1460.00) and that the total amount owed ($3665.98) remains outstanding. [*2]

The defendant, a Massachusetts-based insurance company, acknowledges receiving the bills and established that it sent a delay letter to plaintiff on 11/19/09 in response to the first bill for date of service 12-09/09 to 1/06/10 in the amount of $718.17. The delay letter states that the request for payment can not be satisfied due to a pending investigation into a potential policy violation. There is no evidence that the defendant sent a denial of claim form for the first bill after completing its investigation. However, the defendant demonstrated that it sent denials for the remaining bills on 2/16/10, 3/22/10, and 8/30/10, respectively. The defendant noted on each NF-10 form that the claims were denied due to plaintiff’s assignor’s non-cooperation based on his failure to provide documents to establish that he resides in Massachusetts. The defendant cross moves summary judgment dismissing the action on that ground.

At the outset, the court notes that the applicable Massachusetts laws conflict with New York No-Fault law. The analysis used in resolving choice of law issues in this context is the “grouping of contacts” or “center of gravity” approach (Babcock v Jackson, 12 NY2d 473 [1963]). This approach accommodates the competing interests in tort cases with multi-state contacts by giving controlling effect to the law of the jurisdiction based on the relationship or contact with the occurrence, or where the parties have the greatest concern with the specific issue raised in the litigation (id.). Upon application of this analysis, the court finds that the dispositive factors weigh in favor of applying Massachusetts law. The motor vehicle accident giving rise to this dispute occurred at the intersection of Pitkin Avenue and Hendrix Street in Brooklyn, New York. However, the insurance contract was entered into and written in Massachusetts. The defendant is a domiciliary of Massachusetts and maintains its principal place of business in that state. Additionally, Mr. Howe had a Massachusetts license, purported to have a Massachusetts address, and the vehicles (Toyota and Lexus) covered under the policy were registered in Massachusetts .

In order to avoid coverage based upon non-cooperation by an insured, the insurer bears the burden of proving (1) a substantial and material breach of the duty to cooperate; (2) actual prejudice to the insurer’s interest due to the lack of cooperation, i.e., serious impairment of the insurer’s investigation or defense of the action; and (3) the insurer’s exercise of diligence and good faith in obtaining the insured’s cooperation (Darcy v Hartford Ins. Co., 407 Mass. 481, 488-491 [1990]). Even when these elements are met, the insurer will be obligated to provide coverage if the insured (or the party standing in the shoes of the insured) is able to prove that the insurer waived its right to assert the policy breach as a ground for denying liability (Rose v Regan, 344 Mass. 223, 229 [1962]; Merrimack Mut. Fire Ins. Co. v Nonaka, 414 Mass. 189, 190 [1993]). Waiver may be inferred from the circumstances when an insurer has exercised dominion over a case, which made a significant and irrevocable change in the insured’s position, without issuing a timely and effective reservation of rights and disclaimer letter (DiMarzo v American Mut. Ins. Co., 389 Mass. 85, 99-100 [1983]). [*3]

Here, the defendant’s underwriter, Ania Cryan, stated in her affidavit that Mr. Howe represented at the time the policy was issued that he resided at L3 Franklin Square, Randolph, Massachusetts (“Massachusetts address”). Ms. Cryan indicated that the defendant would not have issued the insurance policy had it known that Mr. Howe resided in New York and not in Massachusetts. The defendant’s claims adjuster, Melissa Thompson, also stated in her affidavit that the defendant was under the impression that Mr. Howe resided at the Massachusetts address. Ms. Thompson asserted that the defendant became suspicious, because the NF-2 application indicates that Mr. Howe’s address is 126-39 146th Street, Jamaica, New York (“Jamaica, Queens address”). Ms. Thompson did not set forth the defendant’s procedures when receiving NF-2 forms, but the dates on Mr. Howe’s NF-2 form appears to contradict Ms. Thompson’s assertions. The NF-2 is dated 11/13/09 and bears a received stamp of 11/18/09, and the reservation of rights letter was sent on 11/13/09 to the Jamaica, Queens address. Based on these dates, it appears that the defendant sent the reservation of rights letter to Mr. Howe’s Jamaica, Queens address before receiving the NF-2 application. The defendant has also failed to proffer any evidence that it sent the letter to the Massachusetts address, which is the address of record on the insurance policy according to Ms. Thompson. The court is unable to ascertain when the defendant first became aware of a potential discrepancy with Mr. Howe’s residency so as to disclaim coverage on that ground. This is relevant because under Massachusetts law, the defendant could be potentially barred from disclaiming coverage on estoppel grounds, or if waiver applies (Sweeney v Frew, 318 Mass. 595 [1945]). Waiver of a policy defense can be inferred from an insurer’s actions, and, in the court’s view, accepting premium payments from an insured when the insurer is aware of a potential policy violation or discrepancy with an insured’s purported residence may estop the defendant from availing itself of the lack of coverage defense.

There is also a question as to the effectiveness of the letter that was sent to Mr. Howe. The letter indicates that the defendant is reserving its right to disclaim and to assert a defense of no coverage based upon its contention that it may have been provided with false, deceptive, misleading or incomplete information regarding the garaging of Mr. Howe’s vehicles. The letter outlines provision 18 under the policy, which states, in pertinent part,

“After an accident or loss, you or anyone else covered under this policy must cooperate with us in the investigation, settlement and defense of any claim or lawsuit. We must be sent copies of all legal documents in connection with the accident or loss.

Failure to cooperate with us may result in the denial of the claim.”

The letter states that the defendant will need to obtain a recorded statement from Mr. Howe in reference to the garaging of his vehicles, and it states that Mr. Howe will need to provide [*4]documents showing that he resides in Massachusetts. After receiving reports from two investigators and a recorded statement from Mr. Howe, the defendant did not disclaim its obligation under the subject insurance policy based upon false, deceptive, misleading or incomplete information regarding the garaging of Mr. Howe’s vehicles. Instead, the defendant disclaimed its obligations under the policy based upon its contention that Mr. Howe’s did not submit the requested documentation and therefore, failed to cooperate with its investigation.

The defendant’s contention that Mr. Howe failed to cooperate when applied to Massachusetts law regarding the waiver of defenses, raises several issues. First, there is no showing that Mr. Howe received the reservation of rights letter. The defendant failed to annex actual proof of mailing or provide an affidavit of an individual with personal knowledge to establish the practices and procedures that were in place at the time to ensure that such letters are sent. Ms. Thompson’s conclusory statement that she mailed the letter to Mr. Howe is insufficient. Second, before receiving the NF-2 application or completed reports from its investigators, the defendant sent the letter to the Jamaica, Queens address only and not to the address of record on the insurance policy. Third, there is a notation in the letter that the defendant enclosed a self-addressed, stamped envelope for Mr. Howe to return acknowledgment of receipt of the letter. The defendant’s claims adjuster, Ms. Thompson, failed to address whether a signed acknowledgment of receipt was received from Mr. Howe. Lastly, there is no showing that a reservation of rights or disclaimer letter was sent to the plaintiff, who stands in the shoes of Mr. Howe.

Assuming arguendo that Mr. Howe received the reservation of rights letter, there is no showing that the defendant exercised diligence and good faith in obtaining Mr. Howe’s cooperation. The letter is vague and ambiguous as to the type of documentation required, and there is no evidence that a more detailed, follow up letter was sent to Mr. Howe before disclaiming coverage. Furthermore, the defendant has failed to demonstrate that Mr. Howe’s alleged failure to submit documentation as to his proof of residency constituted a substantial and material breach of the duty to cooperate. The defendant received detailed reports from both investigators and Mr. Howe submitted to an in person, recorded interview with one of the investigators, Timothy Cunningham, on 11/20/09. When asked by Mr. Cunningham for his current address, Mr. Howe responded that he resides at L3 Franklin Square Condo, Randolph, Mass., 02368 . Mr. Howe presented the investigator with a Massachusetts driver license but provided a New York area code phone number. Mr. Howe claimed that he worked full time at American Airlines (JFK Airport location) over a seventeen year period before retiring in April 2009. Mr. Howe indicated that he stayed at the Jamaica, Queens address, his mother’s home, when he was working. He claimed that he did not pay rent at that address but stated that the Direct TV bill was in his name. Mr. Howe also stated that he did not pay rent or utilities at the Massachusetts address, and he acknowledged that he did not own that property. Mr. Howe told the investigator that he sometimes stays at the [*5]Massachusetts address and at his daughter’s house, located at Herman Street in Roxbury, Massachusetts.

Additionally, the defendant has not established that it has or will suffer prejudice or serious impairment due to Mr. Howe’s alleged failure to produce documentation. Mr. Cunningham investigated Mr. Howe’s New York address, and the other investigator, Robert DiMare, investigated the Massachusetts address. In addition to the results of the in person interview with Mr. Howe, Mr. Cunningham reported that a search using Mr. Howe’s social security number connected him to the Jamaica, Queens address from 1993 through November 2009. Mr. Cunningham also located Mr. Howe’s bankruptcy filing from May 2005, which revealed that Mr. Howe used the Jamaica, Queens address at that time. Mr. Cunningham also indicated that a search with the New York Department of Motor Vehicles showed that Mr. Howe had a New York driver’s license that expired in 1981 . He also reported that Mr. Howe has received tickets for disobeying traffic devices in Brooklyn, New York on 4/13/09 and 2/02/07 as well as a parking ticket in New York City on 5/20/09. Mr. Cunningham reported further that he found a telephone listing for “Joseph N. Howe” at the Jamaica, Queens address on the Whitepages.com website. According to Mr. Cunningham, one of the neighbors near the Jamaica, Queens address indicated that Mr. Howe has resided there for several years. Mr. Cunningham reported that he observed both of the vehicles covered under the subject policy (a Toyota and Lexus) parked on a street by the Jamaica, Queens address, and he noted that the Lexus had extensive front end damage.

Mr. DiMare reported that he found no records relating to Mr. Howe at the Randolph Town Hall, Registrar of Voters Office, or Assessor’s Office. He also indicated that he found nothing identifiable with Mr. Howe at the Massachusetts address after reviewing available telephone company records for that area. Mr. DiMare questioned the residents of attached townhouses to the L3 Franklin address and none were familiar with or had knowledge of Mr. Howe. Mr. DiMare interviewed Wendy Jillian of Brooks Management Company, which oversees the operation of the townhouse complex. Ms. Jillian confirmed that the property is owned by another individual and that Mr. Howe is not listed as the current or former owner. Mr. DiMare reported that he conducted a series of spot checks during the evening hours of 11/16/09 and that he did not observe either of the insured’s vehicles parked in close proximity to the Massachusetts address.

Essentially, both investigators concluded in reports that were provided to the defendant (on 11/23/09 and 12/04/09) that Mr. Howe resides primarily in New York. Despite receiving the reports and a transcript of Mr. Howe’s interview, the defendant disclaimed its obligation under the subject policy on the ground that Mr. Howe failed to cooperate by not submitting documentation. However, there is no showing that Mr. Howe’s alleged failure to provide documentation was material and substantial, or that it impaired the defendant’s investigation concerning this matter.

The defendant has submitted sufficient information to rebut plaintiff’s prima facie [*6]showing regarding the outstanding bills but has failed to establish its defense of lack of cooperation based upon Mr. Howe’s failure to remit documentation. The court is cognizant that Massachusetts courts have held that furnishing information known to be false and of a material nature before or at trial is a ground for disclaiming coverage based on an insured’s non-cooperation (Williams v Travelers Ins. Co., 330 Mass. 476, 479 [1953]; Jertson v Hartley, 342 Mass. 597, 602 [1961] and see Mello v Hingham Mut. Fire Ins. Co., 421 Mass. 333 [1995][duty to cooperate a condition precedent to affixing liability]). However, the defendant has not raised that defense, and, even if it had, there are questions of fact as to whether the defendant waived its right to disclaim on that ground. Waiver may apply if the defendant is estopped from disclaiming coverage on equitable grounds, and there is an issue as to the

effectiveness, or lack thereof, of the reservation of rights and disclaimer letters that were sent in this case.

Accordingly, plaintiff’s motion and the defendant’s cross motion are denied.

This constitutes the decision and order of the court.

July 17, 2013____________________________

Hon. Ingrid Joseph

Acting Supreme Court Justice

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 (Devin P. Cohen, J.), entered July 25, 2011. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff had established its prima facie case; as so modified, the order, insofar as appealed from, is affirmed, without costs.

As relevant to this appeal, in this action by a provider to recover assigned first- party no-fault benefits, defendant moved for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai. Defendant’s submissions indicated that Kanhai had failed to appear for scheduled independent medical examinations (IMEs) and, with [*2]regard to two of plaintiff’s claims, in the sums of $465.53 and $560.17, respectively, that these claims were premature since plaintiff had failed to provide requested documentary verification. Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.” Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment dismissing the complaint insofar as it asserted claims by plaintiff as assignee of Curtis Kanhai, and implicitly found that plaintiff had established its prima facie case.

In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).

With respect to the merits of defendant’s motion, we find that defendant failed to meet its burden of establishing that plaintiff’s assignor had not appeared for scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) since there was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined. The record also shows that defendant failed to establish that plaintiff’s claims in the amounts of $465.53 and $560.17 for services provided to assignor Kanhai were premature. A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Consequently, defendant failed to establish entitlement to summary judgment dismissing so much of the complaint as sought to recover upon claims assigned to plaintiff by Curtis Kanhai.

Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order, insofar as appealed from, is modified by striking the provision implicitly finding that plaintiff established its prima facie case.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 12, 2013

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue for a nonjury trial was whether plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Following the trial, the Civil Court found that defendant had established that it had mailed IME notices and that the assignor had failed to appear for the examinations, and that plaintiff had failed to rebut defendant’s showing. Plaintiff appeals from the judgment dismissing the complaint.

Defendant’s sole witness at trial was the scheduling supervisor for Empire Stat, an independent company which, the witness explained, scheduled IMEs and mailed IME notices for [*2]defendant. The witness testified that, based upon his review of the file, he had determined that plaintiff’s assignor had not appeared for two scheduled IMEs. Plaintiff correctly argues that defendant failed to submit evidence from a person with personal knowledge of the alleged nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, since defendant did not meet its burden at trial, judgment should have been awarded in favor of plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 12, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 12, 2013

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Law Office of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for respondent.

{**43 Misc 3d at 28} OPINION OF THE COURT

Memorandum.

Ordered that, on the court’s own motion, the notice of appeal from the decision dated December 10, 2010 is deemed a premature notice of appeal from the judgment entered February 16, 2011 (see CPLR 5520 [c]); and it is further, ordered that the judgment is reversed, with $30 costs, the complaint is reinstated, and the matter is remitted to the Civil Court for a new trial.

In a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motions to admit into evidence, among other things, plaintiff’s assignment of benefits form, document delivery receipt, and claim form. Defendant presented no witnesses. Plaintiff appeals from a written decision after trial in which the court found for defendant. A judgment was subsequently entered, from which we deem the appeal to have been taken (CPLR 5520 [c]). On appeal, plaintiff contends, among other things, that it had laid a proper foundation for the admission into evidence of its assignment of benefits form, [*2]delivery receipt and claim form. We agree.

At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admissible (see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d{**43 Misc 3d at 29} 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.

“The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise” (People v Kennedy, 68 NY2d 569, 579 [1986]).

If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.

A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that plaintiff had provided the supplies to its assignor. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records. The Civil Court sustained defendant’s objection to the admission of the foregoing documents into evidence on the ground that the witness was not a proper person to lay a foundation for their admission.

It is not necessary to call the person who actually made a record in order to establish a proper foundation for its admission into evidence pursuant to the business record exception of CPLR 4518 (a). As plaintiff’s witness was an employee who was familiar with plaintiff’s office routine, it was proper for him to testify that the aforementioned records had been contemporaneously and routinely made in the course of plaintiff’s business and that it is plaintiff’s regular business practice to make such records (see People v Kennedy, 68 NY2d at 579). In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects{**43 Misc 3d at 30} the weight of the record, not the admissibility of the record. Inasmuch as the witness had satisfied the foundational requirements of CPLR 4518 (a), plaintiff’s exhibits 1 and 2 should have been admitted into evidence.

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

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

Supreme Court, New York County

150235/09

Plaintiff:

Galvano & Xanthakis, PC

150 Broadway, Ste 2100

New York, New York 10038

Defendants:

Brand Glick & Brand, PC

600 Old Country Rd, Ste 440

Garden City, New York 11530

Doris Ling-Cohan, J.

The following papers, numbered 1 – 7 were considered on this motion and cross-motion for summary judgment:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2, 3,

Answering Affidavits — Exhibits ________________________________

Replying Affidavits ____________________________________________7

Cross-Motion:[ ] Yes[ X ] No4, 5, 6

Upon the foregoing papers, it is ordered that this motion and cross-motion are decided as indicated below.

BACKGROUND

Plaintiff Calvin Alford commenced this action against defendant Fiduciary Insurance Company of America (Fiduciary Ins.) seeking no-fault benefits for injuries he sustained in an automobile accident. The facts of this action are uncontested. Plaintiff, a resident of the State of New York, did not own a car, nor did he reside with anyone who owned a car. In February 2009, plaintiff, a pedestrian, was struck, while crossing the street, by a vehicle insured by defendant Fiduciary Ins. Plaintiff was taken from the scene, to the hospital, by ambulance. Subsequently, plaintiff, and his counsel, attempted to obtain the identity of the vehicle that struck him, but was unable to ascertain such information until June 1, 2009. Nonetheless, in April 2009, plaintiff filed a timely application for benefits with the Motor Vehicle Accident Indemnification Corporation (MVAIC), and continued his efforts to discover the identity of the vehicle that struck him. On June 1, 2009, MVAIC responded to plaintiff’s application for no-fault benefits, stating that the vehicle that struck plaintiff was insured by defendant Fiduciary Ins. Through counsel, [*2]plaintiff immediately contacted defendant Fiduciary Ins., by telephone, to file a no-fault application, claim number 20082280, which was denied on June 3, 2009 pursuant to 11 NYCRR 65-1.1.

Such denial stated that plaintiff did not provide written notice of the claim, and that such claim was untimely. The denial further states that the “late notice denial will be reconsidered if the injured party submits written proof that provides clear and reasonable justification for the failure to comply with the notice requirement”. Notice of Motion, Exh. K, Denial of Claim Form, p. 1. Plaintiff unsuccessfully sought a reconsideration of the denial by telephone on several occasions. On July 17, 2009, plaintiff submitted a written request for reconsideration detailing the inability to ascertain the identity of the offending vehicle until June 1, 2009, when plaintiff received a response from MVAIC. Thereafter, plaintiff received no response to his written request for reconsideration, and commenced this action on December 10, 2009.

Plaintiff now moves for summary judgment against defendant Fiduciary Ins., declaring that defendant Fiduciary Ins. must provide no-fault benefits to plaintiff. Defendant Fiduciary Ins. cross-moves for summary judgment dismissing the summons and complaint.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “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 material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980).

Here, there is no dispute as to the facts. Plaintiff argues that after numerous attempts, made by himself and his counsel, he was unable to obtain a copy of the police report, or any other document, to ascertain the identity of the vehicle that struck him. In support, plaintiff proffers, inter alia, his affidavit detailing his attempt to obtain the police report, as well as documents requesting such police report.

Defendant Fiduciary Ins., in arguing that the summons and complaint must be dismissed, contends that timely notice of claim was not provided, that written notice was not provided until July 17, 2009, and that it is not reasonable for plaintiff to wait over two months to file an application with MVAIC merely because plaintiff was attempting to obtain a copy of the police report. Defendant Fiduciary Ins. also argues that plaintiff lacks standing to bring the instant action, as plaintiff has assigned his rights for recovery of medical expenses to his medical provider and that plaintiff has not provided proof of payment for the medical bills to the medical provider. [*3]

“It is well settled that delay on the part of an injured party to give notice may be excused, upon a showing of diligence, where he had difficulty ascertaining the identity of the insured or insurer”. Berman v County-Wide Ins. Co., 819 NYS2d 208 (Civil Ct., Queens Cty. 2006). See also Hartford Accident & Indemnity Co. v CNA Ins. Companies, 99 AD2d 310, 314 (1st Dep’t 1984). Here, plaintiff has shown entitlement to summary judgment as a matter of law. While defendant Fiduciary Ins. is correct in asserting that plaintiff’s notice of claim was technically late, 11 NYCRR 65-3.5(1) specifically states that, for the standards of review where applicants have provided late notice, “such standards shall include…appropriate consideration for pedestrians and non-related occupants of motor vehicles who may have difficulty ascertaining the identity of the insurer.” Plaintiff, a pedestrian hit by a vehicle while crossing the street, was rushed from the scene by ambulance. Plaintiff has documented his diligent attempts, and those of his counsel, in obtaining the identity of the vehicle that struck him. The Appellate Division, First Department, has held that “notice by an injured claimant is not judged by the same standard as governs notice by the insured”. Id. Thus, plaintiff has established entitlement to summary judgment.

Defendant Fiduciary Ins. argues that plaintiff failed to provide written notice. However, defendant Fiduciary Ins.’s denial of plaintiff’s oral claim specifically stated that plaintiff’s late notice would be reconsidered upon submission of a written claim. It is undisputed that plaintiff submitted such written notice. Defendant Fiduciary Ins., nevertheless, failed to reconsider plaintiff’s claim. Thus, defendant’s argument that plaintiff failed to timely provide written notice is unpersuasive. Defendant Fiduciary Ins.’s remaining argument, based on standing, is similarly inapposite. Aside from defendant Fiduciary Ins.’s conclusory allegation that plaintiff assigned his rights for recovery of medical expenses to his medical provider, defendant Fiduciary Ins. has failed to provide any evidence of such alleged assignment. The Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat a motion for summary judgment. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978). Thus, defendant Fiduciary Ins.’s cross-motion for summary judgment must be dismissed.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment against defendant Fiduciary Ins. is granted in its entirety, and the Clerk is directed to enter judgment accordingly in favor of plaintiff; and it is further

ORDERED, ADJUDGED and DECLARED that the defendant Fiduciary Ins. Must provide no-fault benefits, and provide coverage, to plaintiff with regards to the February 2009 automobile accident; and it is further

ORDERED that defendant Fiduciary Ins.’s cross-motion for summary judgment is denied; and it is further

ORDERED that the issue of the amount of no-fault benefits is respectfully referred to a Special Referee in accordance with CPLR §4317(b), to hear and determine; and it is further

ORDERED that within 45 days of entry of this order, plaintiff shall serve a copy of this order with notice of entry upon defendant Fiduciary Ins., as well the Clerk of the Judicial Support Office to arrange a calendar date for the reference to a Special Referee. [*4]

This is the decision and order of the court.

Dated:

DORIS LING-COHAN, J.S.C.

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

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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 (Alan L. Lebowitz, J.H.O.), entered June 27, 2011. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking to compel defendant to produce its Special Investigation Unit file and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to respond to defendant’s discovery demands and to produce Dr. John Braun and Vladimir Grinberg for depositions.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking to compel defendant to produce its Special Investigation Unit file is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking to compel defendant to produce its Special Investigation Unit (SIU) file and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, [*2]to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to respond to defendant’s discovery demands and to produce Dr. John Braun and Vladimir Grinberg for depositions.

To avoid having to produce its SIU file, defendant had to establish that its SIU file was prepared solely for litigation (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101 [1986]; see also Bombard v Amica Mut. Ins. Co., 11 AD3d 647 [2004]). As defendant failed to demonstrate that it had decided to deny plaintiff’s claims prior to commencing its investigation, the contents of defendant’s SIU file are not privileged and are discoverable (Bombard, 11 AD3d at 648).

With respect to defendant’s cross motion, plaintiff contends that defendant is not entitled to any discovery regarding whether plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) because defendant previously entered into stipulations, in unrelated actions, which, among other things, stated that, as of the date the stipulations were entered into, plaintiff was “in full compliance with any licensing requirements affecting its right to obtain reimbursement under the applicable No Fault laws and regulations.” However, as the issue was resolved in a stipulation and not after it was actually litigated, the doctrine of collateral estoppel is inapplicable (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]). Consequently, defendant is not barred from obtaining discovery regarding whether plaintiff is in compliance with applicable state and local licensing laws.

While plaintiff argues that defendant is not entitled to the discovery ordered by the court, inasmuch as plaintiff failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]). To the extent the discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that plaintiff did not specifically object thereto (see Midborough Acupuncture, P.C., 21 Misc 3d 10; Great Wall Acupuncture, 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]; A.B. Med. Servs. PLLC, 11 Misc 3d 71).

Here, defendant sought discovery related to whether plaintiff may be ineligible to recover assigned first-party no-fault benefits because it is a professional service corporation which fails to comply with applicable state or local licensing laws (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313; see also One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; All Boro Psychological Servs., P.C. v Allstate Ins. Co., 36 Misc 3d 157[A], 2012 NY Slip Op 51775[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; All Boro Psychological Servs., P.C. v Auto One Ins. Co., 35 Misc 3d 136[A], 2012 NY Slip Op 50777[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), a defense which is not precluded (Bath Med. Supply, Inc. v Allstate Indem. Co., 27 Misc 3d 92 [App Term, 2d, 11th & 13th Jud Dists [*3]2010]). Since plaintiff failed to establish that the requested discovery is privileged or palpably improper, plaintiff is obligated to produce the information sought. Defendant further established its entitlement to depose Vladimir Grinberg and plaintiff’s owner, Dr. John Braun (see CPLR 3101 [a]; see also RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking to compel defendant to produce its SIU file is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 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 (Katherine A. Levine, J.), entered March 18, 2011. 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 defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 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 (Nancy M. Bannon, J.), entered May 27, 2011. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that it had never received the claim at issue. The Civil Court denied defendant’s motion.

The affidavit of defendant’s claims representative established that defendant had never received the claim in question from plaintiff. Not only was plaintiff’s opposition to defendant’s motion insufficient to demonstrate proof of proper mailing of the claim form, which would give rise to a presumption of receipt, but defendant demonstrated that the address to which plaintiff had allegedly mailed the claim, a post office box in Philadelphia, is not defendant’s address.

Accordingly, the order is reversed and defendant’s motion for summary judgment [*2]dismissing the complaint is granted (see Vista Surgical Supplies Inc. v Allstate Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52520[U] [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013