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, Queens County (Rudolph E. Greco, Jr., J.), entered April 7, 2010. The order, insofar as appealed from, (1) upon, in effect, granting the branches of defendant’s motion seeking leave to reargue or, in the alternative, to renew its prior motion to vacate an order of the same court (William A. Viscovich, J.) entered December 19, 2008, which had granted plaintiff’s unopposed motion for leave to enter a default judgment, adhered to the prior determination denying such vacatur, and (2) upon, in effect, granting the branch of defendant’s motion seeking leave to reargue its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), adhered to the prior determination denying the motion.

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, plaintiff obtained leave to enter a default judgment against defendant pursuant to an order of the Civil Court (William A. Viscovich, J.) entered December 19, 2008. Defendant then moved pursuant to CPLR 5015 (a) (1) to vacate the order and permit it to defend the action. Two months later, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In support of the [*2]latter motion, defendant alleged, among other things, that plaintiff had failed to serve process upon defendant and, instead, had mistakenly served defendant’s third-party claims administrator. By order entered February 2, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) denied both of defendant’s motions.

Thereafter, defendant moved for 1) leave to reargue or, in the alternative, to renew its prior motion to vacate the December 19, 2008 order and, upon reargument or, in the alternative, renewal, to vacate said order, and 2) leave to reargue its prior motion to dismiss the complaint and, upon reargument, to dismiss the complaint.

By order entered April 7, 2010, the Civil Court (Rudolph E. Greco, Jr., J.), upon, in effect, granting defendant leave to reargue and renew its prior motion to vacate the December 19, 2008 order, adhered to its prior determination denying such vacatur. Additionally, the court, upon, in effect, granting defendant leave to reargue its prior motion to dismiss the complaint, adhered to its prior determination denying the motion.

The Civil Court properly denied the branch of defendant’s motion seeking, upon reargument, to dismiss the complaint. A defendant’s voluntary participation in litigation in which the lack of jurisdiction could be, but was not, raised constitutes a submission to the jurisdiction of the courts (see generally Gager v White, 53 NY2d 475, 488 [1981]; Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In the instant case, defendant submitted to the jurisdiction of the court when, in its initial motion, it sought to vacate the December 19, 2008 order, and permit it to “defend this action on the merits,” rather than seeking to dismiss the complaint for lack of jurisdiction (see Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U]).

The Civil Court also properly denied the branch of defendant’s motion seeking, upon reargument, to vacate the December 19, 2008 order pursuant to CPLR 5015 (a) (1). A movant seeking to vacate a default based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 17, 2013

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 17, 2013

APPEARANCES OF COUNSEL

Joseph Sparacio, P.C., Staten Island (Joseph Sparacio of counsel), for appellant. Law Offices of Karen C. Dodson, New York City (Tricia D. Prettypaul of counsel), for respondent.

{**40 Misc 3d at 78} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff mailed to defendant insurer, pursuant to CPLR 312-a, a copy of the summons and verified complaint, dated February 13, 2004. The record contains no signed acknowledgment of receipt, as is required by CPLR 312-a. On March 24, 2004, defendant served a verified answer, in which it asserted the affirmative defense of lack of personal jurisdiction as service of process had not been “perfected.”

There was no further activity in the case until February 13, 2009, when plaintiff purchased an index number and, for the first time, filed with the Civil Court the 2004 summons and complaint, along with defendant’s 2004 answer. There is no proof of service upon defendant of the summons and complaint following the 2009 Civil Court filing (see CCA 411). On [*2]November 30, 2009, plaintiff mailed a notice of trial and certificate of readiness to defense counsel, and filed it with the Civil Court on December 1, 2009.

By notice of motion dated April 23, 2010, defendant moved for, among other things, leave to amend its answer to interpose the affirmative defense that the action had not been commenced within the time prescribed by law and that it was therefore barred by the statute of limitations, and, upon such amendment, for summary judgment dismissing the complaint. Plaintiff appeals from so much of an order of the Civil Court entered July 29, 2010 as implicitly granted the branch of defendant’s motion seeking leave to amend the answer and, upon such amendment, dismissed the complaint. The court held that plaintiff’s action had not been properly commenced within the period of the statute of limitations because defendant had not executed an acknowledgment of receipt, and, therefore, service had not been properly effectuated in accordance with the provisions of CPLR 312-a.

On appeal, plaintiff contends that the action was properly commenced “upon service of the summons and complaint.” Although {**40 Misc 3d at 79}plaintiff admits that defendant did not return the acknowledgment of receipt required by CPLR 312-a, plaintiff claims that by serving its answer on March 24, 2004, defendant made an appearance in the action, which is “equivalent to personal service of the summons” (CPLR 320 [b]), and then waived its defense of improper service by failing to move to dismiss the complaint on this ground within 60 days of service of its answer, as required by CPLR 3211 (e). Plaintiff further argues that any “mistake, omission, defect or irregularity . . . in the filing process” may be disregarded (CPLR 2001).

CPLR 312-a, as an alternative to the other methods of personal service authorized by CPLR 307, 308, 310, 311 or 312, permits personal service to be made by first class mail, by mailing a copy of the summons and complaint, together with two copies of a statement of service by mail and acknowledgment of receipt, with a return envelope, postage prepaid, addressed to the plaintiff (CPLR 312-a [a]). The defendant must complete the acknowledgment of receipt and mail or deliver it within 30 days from the date of receipt. Under CPLR 312-a, service is complete on the date the signed acknowledgment of receipt is mailed or delivered to the plaintiff (but cf. CCA former 410 [b]). The signed acknowledgment of receipt constitutes proof of service (CPLR 312-a [b] [1]; 306 [d]).

In 2004, when plaintiff sought to serve defendant pursuant to CPLR 312-a, the “commencement-by-service” system was still in effect in the Civil Court, i.e., an action in the Civil Court was commenced by service of the summons (CCA former 400). Service of the summons was complete upon filing proof of service (CCA former 410 [b]), or, in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d]). The filing of the acknowledgment of receipt has the effect of establishing the completion of service for purposes of initiating the time in which a defendant must respond (see Deepdale Gen. Hosp. v American Colonial Ins. Co., 144 Misc 2d 917 [App Term, 2d Dept, 9th & 10th Jud Dists 1989]), but here there was no acknowledgment of receipt, thus, none was filed and, technically, no action had been commenced by virtue of plaintiff’s actions (see Nagy v Heuss House Drop In Shelter for the Homeless, 198 AD2d 115 [1993]). Consequently, defendant’s time to answer did not commence to run. As has been noted, plaintiff, until early 2009, attempted no other means of service (CPLR 312-a [e]) nor otherwise took any further measures. [*3]

{**40 Misc 3d at 80}Although no action had been commenced and, thus, defendant’s time to answer had not yet commenced, on March 24, 2004, defendant nevertheless served plaintiff with an answer, in which it asserted, as an affirmative defense, lack of personal jurisdiction. Thus, having preserved its jurisdictional defense, the answer could not be deemed the “equivalent to personal service of the summons upon” defendant (CPLR 320 [b]). The question remains, however, whether, under the circumstances presented, defendant was required, pursuant to CPLR 3211 (e), to move to dismiss the “action” on that ground within 60 days of serving its answer, or risk waiver of that defense. Defendant failed to make such a motion. However, as there was no viable pending action, defendant cannot be deemed to have waived its defense of lack of personal jurisdiction by failing to make a motion to dismiss this “action.” Therefore, since plaintiff had never served the summons and complaint, the action was never commenced in 2004.

In February 2009 (after the commencement-by-filing system had gone into effect in 2005 in the New York City Civil Court), plaintiff purchased an index number and filed the 2004 summons and complaint, as well as defendant’s 2004 answer, in the Civil Court. In December 2009, plaintiff served and filed its notice of trial and certificate of readiness. Since, under the current version of CCA 400 (1), “[a]n action is commenced . . . by filing a summons and complaint,” plaintiff clearly commenced its action in 2009. Plaintiff did not, however, serve upon defendant a copy of the summons and complaint, and, therefore, plaintiff did not acquire personal jurisdiction over defendant under the new system (see CCA 400 [2]). Since there was no service, there could be no filing of proof of service (CCA 410 [b]), which filing would mark the date when service was complete and from which defendant’s time to answer would commence to run. The fact that plaintiff filed defendant’s 2004 answer with the summons and complaint did not mean that it had acquired jurisdiction over defendant, and did not represent proof of service.

Thereafter, defendant successfully moved to amend its 2004 answer to add the affirmative defense that the action was barred by the statute of limitations and, upon such amendment, to dismiss on that ground. Even if we assume that defendant thereby waived its defense based on lack of personal jurisdiction (see e.g. CPLR 3211 [e]), there was merit to defendant’s statute of limitations defense.{**40 Misc 3d at 81}

The time within which an action must be commenced is computed “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]). A defendant asserting a statute of limitations defense must establish that the plaintiff commenced the action after the expiration of the statute of limitations. A no-fault cause of action accrues when payment of no-fault benefits becomes “overdue” (see Insurance Law § 5106 [a]; see also Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]; Acupuncture Works, P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50646[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). For statute of limitations purposes, plaintiff’s claim accrued on January 14, 2003, the date that defendant issued and mailed its denial of claim form. Since the six-year statute of limitations applies to the claim involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]), in order for plaintiff’s action to be timely, it had to have been commenced by January 14, 2009. As we view the action as having first been commenced on February 13, 2009, when plaintiff purchased the index number and filed with the Civil Court the [*4]2004 summons and complaint along with defendant’s answer, the action is, necessarily, time-barred.

Accordingly, the order, insofar as appealed from, is affirmed.

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

—[*1] The Golden Law Firm, Utica (B. Brooks Benson of counsel), for petitioners-appellants.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for respondent-respondent.

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered May 2, 2012 in a proceeding pursuant to CPLR article 75. The order granted the motion of respondent to dismiss the petition to vacate the arbitration awards.

It is hereby ordered that the order so appealed from is unanimously modified on the law by confirming the awards and as modified the order is affirmed without costs.

Memorandum: Petitioners sustained injuries in an automobile accident in June 1996, and thereafter submitted their no-fault claims for loss of earnings and medical expenses to respondent. Following respondent’s denial of most of those claims in April 1997, petitioners timely commenced a civil action in June 2002, i.e., within the six-year statute of limitations, rather than pursuing arbitration under the Insurance Law. In December 2005, shortly before the scheduled trial date, the parties agreed to submit the matter to arbitration. Petitioners’ counsel notified Supreme Court (Daley, J.), in January 2006 that the case would proceed to arbitration and requested removal of the case from the trial calendar. In December 2009, petitioners filed their request for arbitration and thereafter, in the context of the arbitration, respondent moved to dismiss petitioners’ claims on the ground that they were barred by the statute of limitations because more than 12 years had passed from accrual of the claims. The arbitrator agreed and dismissed the claims as time-barred, and a master arbitrator subsequently affirmed those awards. Petitioners thereafter commenced this proceeding in Supreme Court (Siegel, A.J.) pursuant to CPLR article 75 seeking to vacate the awards, and they now appeal from an order that, inter alia, granted respondent’s motion to dismiss the petition. Although we agree with respondent that petitioners were not entitled to vacatur of the awards, we note that the court erred in failing to confirm the awards pursuant to CPLR 7511 (e). We therefore modify the order accordingly.

Inasmuch as petitioners voluntarily pursued arbitration after they commenced a civil action, we conclude that our review is limited by the terms of CPLR 7511 (b) (1) and, “in the absence of proof of fraud, corruption, or other misconduct, the arbitrator’s determination on [the] [*2]issue[ ] of . . . the application of the [s]tatute of [l]imitations . . . is conclusive” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Here, petitioners offered no such proof. Contrary to petitioners’ contention, “the arbitrator had the discretion to consider whether to apply . . . the bar [of the statute of limitations]” (Siegel v Landy, 95 AD3d 989, 992 [2012]). Furthermore, we reject petitioners’ contention that the master arbitrator exceeded his power by making a de novo finding that the agreement to arbitrate lacked a waiver of the statute of limitations by respondent (see generally CPLR 7511 [b] [1] [iii]). “To exclude a substantive issue from arbitration” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]), the limitation upon the arbitrator’s power “must be set forth as part of the arbitration clause” (id. at 307). Because no express limitation regarding the master arbitrator’s power was specified in the parties’ agreement to arbitrate, we conclude that the master arbitrator’s finding was not in excess of his power (see id. at 307-308). Present—Centra, J.P., Fahey, Lindley, Sconiers and Valentino, JJ.

Civil Court of the City of New York, Kings County

072854/09

Attorney for Plaintiff:

Gary Tsirelman P.C.

65 Jay Street, 3rd Floor

Brooklyn, NY 11201

Attorney for Defendant:

Law Office of Solowan & Welden

Dominick Dale, Esq.

170 Froehlich Farm Blvd.

Brooklyn, NY 11797

Katherine A. Levine, J.

The novel issue presented at trial is whether the bill submitted by plaintiff Jamaica Medical Supply Inc. (“plaintiff” or “Jamaica”), for the rental of medical supply equipment on its face constituted a reasonable justification for plaintiff’s untimely submission of written proof of claim or whether plaintiff had an independent obligation to submit a written reasonable justification for its late bill upon receiving the denial from defendant Geico Insurance Company (“Geico”).^[FN1]

Plaintiff Jamaica Medical Supply Inc. (“plaintiff” or “Jamaica”), a medical equipment company, commenced this action to recover the sum of $3475.00 for medical supplies it rented to its assignor Hilma Thornhill (“Thornhill”). At the commencement of the trial, both sides stipulated to each other s prima facie cases. In its NF-10 form, Geico denied the claim on the grounds that plaintiff violated the revised Mandatory Personal Injury Protection Endorsement (“Endorsement”or “PIP”) contained in the revised No-Fault Regulations—11 NYCRR ｧ65-1.1— [*2]by failing to submit its proof of claim for services to Geico within 45 days from the date services were rendered. The denial contained an explanation under reason 45 and set forth that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice.” The burden therefore shifted to plaintiff at trial to establish a clear and reasonable excuse for its untimely submission of the bill.

During the trial, defendant made a motion in limine to preclude the testimony of plaintiff’s owner on the ground that plaintiff failed to respond, during the claims phase, to defendant’s request in its denial to provide a reasonable excuse for its late claim. The Court took the motion under advisement but allowed the plaintiff to testify. Admitted into evidence were two no fault bills dated May 1, 2009, for a water circulating pump/cold pad and for a “passive motion exercise machine (“CPM”) along with the setting up and fitting of the machine and a pad. While both medical supplies were dispensed on March 6, 2009, the return receipt for the water circulating pad was dated March 20, 2009 where as the return receipt for the CPM unit was dated April 6, 2009. Also admitted into evidence were delivery receipts for the CPM unit and water circulating pump wherein Thornhill acknowledged receiving the items and promised to return the units in the same condition as received within two- six weeks of delivery.

Based upon the above, it is clear that plaintiff submitted a claim for the water circulating pump/cold pad 56 days after it was delivered and 42 days after it was returned by the assignor. Plaintiff submitted the claim for the CPM Unit/soft pad kit 56 days after it was delivered and 25 days after it was returned to plaintiff. While both claims were therefore submitted to Geico beyond the 45 days from date of delivery of the equipment, they were sent within 45 days after the rental equipment was returned.

Plaintiff’s president and owner, Mike Kmaimov (“Kmaimov”), testified that due to the exorbitant price of the equipment, Jamaica Medical only rents the CPM unit and water circulating pump. Since the equipment is rented, it was not possible for plaintiff to send the no -fault bill to the insurer within 45 days of disbursement since plaintiff could not ascertain the number of the days that the machines would be rented, and hence the cost of the rental, until the machines were returned. Kmaimov also testified that in some instances a doctor will be re prescribe the machines and it is “impracticable” for the plaintiff to pick up a new prescription and redeliver the machines.

Plaintiff submits that its provision of all the rental documents and no fault bills to defendant on May 1st constituted a reasonable excuse for the alleged late submission of the claim. Plaintiff argues that defendant bears the burden of reviewing the claim documents which clearly showed that the since the durable medical equipment (“DME”) were rentals, they “could not have been billed 45 days” from their initial disbursement. Plaintiff therefore asserts it could not send the no fault bill to defendant until the rental was complete. Yet, in the same breadth, plaintiff admits that case law and state DME guidelines mandate that the date of service must be [*3]the date the supplies were dispersed.

Pursuant to 11 NYCRR §65-1.1 (b) all claims must be submitted within “45 days after the date (the) services (were) rendered”. Where one proof of claim is submitted for several medical treatments, the 45 day period commences “the day after the first treatment is rendered.” SZ Med. P.C. v. Country-Wide Ins. Co., 12 Misc 3d 52, 55 (App. Term, 2d Dept. 2006) citing NY Ins Dept Informal Op No. 03-06-30 (June 30, 2003). See, Health Care Associates (Varallo) v. Geico, 2010 NY Slip Op 50094(U), 26 Misc 3d 1214(A) (Civil Ct., Richmond Co. 2010). These time limitations shall apply “unless the eligible injured person [or that person’s representative] submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.” 11 NYCRR ｧ65-1.1. This duty follows from an insurer’s obligation to include within a denial, based upon the failure to timely submit a proof of claim advise to the applicant that late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice. 11 NYCRR ｧ65-3.3 (e). See, Radiology Today, P.C. v. Citiwide Auto Leasing, Inc., 15 Misc 3d 92 (App. Term, 2d Dept. 2007).

As plaintiff concedes that the case law and state DME guidelines mandate that the date of service be the date the supplies were dispersed, it cannot argue that its 45 days to submit a claim runs from the date that the rental equipment is returned. Furthermore, both of the rented DMEs were returned within the 45 day period, thus making it possible for plaintiff to still timely submit its claim forms to defendant. Given this fact, plaintiff’s attempt to distinguish rental equipment from equipment it sells to the assignor is of no significance. Similarly, plaintiff’s attempt to explain away the 45 day rule at trial by claiming that both the disbursement and return rental forms that it sent to defendant were self explanatory has no merit. Had the items been returned after the 45 days had already expired, the Court might consider whether these forms on their face constituted a reasonable justification for failure to give timely notice.

Since plaintiff could have timely submitted its claims upon the return of the rental equipment, defendant was not under an obligation to some how glean why plaintiff waited until May 1, 2010 to submit its claim forms. Defendant followed the regulations by including within its denial advice to plaintiff that its late notice excused it plaintiff could provide a reasonable justification. Having failed to respond to defendant’s request at the claims phase, plaintiff cannot interpose its justification at trial. Prestige Medical & Surgical Supply, Inc. v. Chubb Indemnity, 2010 NY Slip Op 50449(U), 26 Misc 3d 145(A) (App. Term, 2d Dept. 2010); Delta Diagnostic Radiology, P.C. v. MVAIC, 2007 NY Slip Op. 52143(U), 17 Misc 3d 1125(A) (Civil Ct., Kings Co. 2007).

As such, the complaint is dismissed with prejudice.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 10, 2013______________________________

Hon. Katherine A. Levine

Judge, Civil Court

ASN by _______on___________

Footnotes

Footnote 1:A number of cases were consolidated at trial for the purposes of this issue.

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, Queens County (Cheree A. Buggs, J.), entered May 5, 2011. The judgment, after a nonjury trial, dismissed the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. At a nonjury trial, plaintiff called no witnesses and offered no claim forms into evidence. Instead, plaintiff argued that a 2005 order of the Civil Court, which had granted summary judgment in another action to plaintiff on claims that are not part of the present action, warranted judgment upon the claims at issue because the order further provided that plaintiff was entitled to recover upon a specified claim number if that claim had not been paid. At plaintiff’s request, the Civil Court admitted into evidence deposition testimony given in 2007 by defendant’s employee, who stated that three claims on behalf of assignor John Tran had been denied based on a peer review report, but she was not asked about the claim numbers for these bills. Defendant’s employee did not testify at the present trial. Plaintiff maintained that the [*2]deposition testimony was sufficient to make a connection between the 2005 order of the Civil Court and the present claims, and to prove that the present claims were unpaid. After the trial, judgment was entered in favor of defendant dismissing the complaint.

Plaintiff’s contention that, by virtue of the 2005 Civil Court order, it was entitled to judgment in the instant action lacks merit (see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777 [2008]). At trial, plaintiff failed to proffer any evidence to identify the claim forms upon which plaintiff seeks to recover, let alone establish that such claim forms bore the claim number which was set forth in the 2005 Civil Court order upon which plaintiff relied. In any event, plaintiff failed to establish that the claim forms being sued upon in the instant case remained unpaid. As a result, plaintiff failed to make out a prima facie case demonstrating its entitlement to recover (see Insurance Law § 5106 [a]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 06, 2013

District Court of Nassau County, First District

CV-038267-12

REPRESENTATION:

Friedman, Harfenist, Kraut & Perlstein, LLP, Attorneys for Plaintiff, 3000 Marcus Avenue, Suite 2E1, Lake Success, New York 11042, 516-355-9600; Law Offices of Robert Macchia, Attorney for Defendant, 98 Front Street, Mineola, New York 11501, 516-873-6200.

Michael A. Ciaffa, J.

The following papers have been considered by the Court

on this motion: submitted April 29, 2013

_________________________________________________________ _______________

Papers Numbered

_____________________________________________________________ ___________

Order to Show Cause, Affirmation & Exhibits Annexed………………..1 – 2

Affirmation in Opposition…………………………………………………………..3

Reply Affirmation…………………………………………………………………….. 4

In State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313 (2005), the Court of Appeals held that a “fraudulently incorporated” medical provider is not entitled to reimbursement under no-fault law for services rendered to no-fault claimants, and this holds true even when the services were properly rendered by a licenced medical practitioner. The Mallela decision has spawned a wide range of knotty problems for District Court and Civil Court Judges, often prolonging the resolution of routine claims for no-fault benefits and adding to court congestion. Such delays and court calendar congestion effectively undermine the legislature’s basic intent in enacting the no-fault law. See generally Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 (2007), quoting Matter of Medical Society v Serio, 100 NY2d 854, 860 (2003) (“New York’s no-fault automobile insurance system is designed to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists'”).

On the other hand, as recognized in Nyack Hospital v GMAC, 8 NY3d 294, 300 (2007), our state’s no-fault scheme is “designed to promote prompt payment of legitimate claims” (emphasis added) while “reducing rampant abuse.” When an insurer seeks to attack a perceived [*2]“abuse” of the no-fault system by challenging multiple claims in the context of a declaratory judgment action against a given provider, Mallela issues can be best addressed in an economical and comprehensive manner. However, an insurer’s ability to raise Mallela is not limited to such cases. As the instant case illustrates, Mallela defenses are now being raised, frequently, in the defense of otherwise simple and straightforward claims seeking payment for routine medically necessary procedures.

The principal issue presented by this motion for a protective order involves an insurer’s attempt to discover financial documents relevant to its Mallela defense through a subpoena served upon the medical provider’s bank. The subpoena seeks a large number of financial records and documents which the insurer claims are relevant, material, and necessary to its defenses to the claim. While the requested records are “relevant” in a broad sense, the insurer’s subpoena raises policy concerns which require a careful balancing of interests.

Plaintiff, Nexray Medical Imaging, P.C., commenced this no-fault action against defendant, Allstate Insurance Company, in November 2012, after defendant denied a claim seeking payment for a routine MRI that plaintiff performed in February, 2012. Although the amount of plaintiff’s claim is small ($912.00), defendant’s defenses to the claim include wide-ranging allegations that plaintiff “is engaged in the illegal and unlawful corporate practice of medicine,” that plaintiff “materially misrepresented that a licensed physician was the owner of the plaintiff’s practice,” that plaintiff was “controlled, owned, managed and supervised by persons who are not licensed or authorized to own a professional service corporation or authorized to practice medicine,” and that plaintiff “is engaged in the unlawful practice of fee splitting…” (defendant’s answer, nineteenth through twenty-third affirmative defenses).

Defendant’s answer was accompanied by equally far reaching requests for interrogatories and for discovery and inspection of documents. The propriety of those requests is not put in issue by plaintiff on this motion.Rather, plaintiff’s motion raises strenuous objection only to defendant’s attempt to subpoena certain bank records from Citibank, N.A., a non-party. They include a demand for signature cards for the account, together with “[a]ll records indicating withdrawal and deposit activity” and “copies of all checks from which money was drawn from the account, canceled checks, transaction statements, electronic fund transfers, wire transfers, account ledgers, corporate resolutions, power of attorney and all correspondence between Citibank, NA and Nexray Medical Imaging, PC between April 1, 2011 and the present.”

By order to show cause dated March 8, 2013, production of these bank records was stayed pending further Court order. Plaintiff’s motion attacks the subpoena on multiple grounds. At the outset, the Court rejects defendant’s contention that plaintiff lacks standing to contest the subpoena. CPLR 3103(a) not only permits a non-party witness to seek a protective order, “but also permits any party opposing the disclosure to make the motion.” Snedeker v. Schiff Hardin LLP, 2010 NY Slip Op 30151 (Sup Ct Nassau Co., Driscoll, J.); accord, Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 472 (Sup Ct Queens Co 2007); McDaid v Semegran, 2007 NY Slip Op 51227 (Sup Ct Nassau Co); Matter of MacLeman, 2005 NY Slip Op 51675 (Surr Ct Westchester Co). The Court accordingly turns to the merits of plaintiff’s contentions.

To the extent that plaintiff argues that the subpoena is “facially defective,” the Court disagrees. The subpoena, on its face, states that the records and documents at issue “are relevant, material, and necessary to verify the depositor’s entitlement to recover no-fault benefits under [*3]Regulation 68 (11 NYCRR Part 65).” It therefore literally satisfies CPLR 3101(a)(4), by providing “notice stating the circumstances or reasons such disclosure is sought or required.”

Moreover, under current caselaw, a showing of “special circumstances” is no longer needed when discovery is sought from a non-party. See Kooper v Kooper, 74 AD3d 6, 8 (2d Dept 2010). Instead, requests for discovery from a non-party are largely governed by the same general principles that apply to requests directed to a party itself. Subject to a test of “usefulness and reason,” a party is entitled to “full disclosure” of “material and necessary” information bearing upon the controversy at hand. 74 AD3d at 10. Accordingly, the Court rejects plaintiff’s arguments that defendant’s subpoena is “facially defective” or that it is “being impermissibly used” as a pre-trial disclosure device.

These conclusions bring the Court to the most difficult issue. The Court’s rejection of the foregoing arguments does not eliminate the need for careful judicial oversight of the discovery process, in order to protect the plaintiff’s legitimate privacy interests in its bank records and financial affairs, while preserving defendant’s right to reasonable disclosure of material and relevant information and documents. See CPLR 3103, 3104.

In balancing these interests, the Court is guided, in the first instance, by rulings made by other courts. Recent Appellate Term decisions have made plain that Mallela discovery requests must be supported by “case specific allegations.” See Pomona Med. Diagnostic, PC v Adirondack Ins. Co., 2012 NY Slip Op 51165 (App Term 1st Dept); see also Midwood Acupuncture, PC v State Farm Fire & Cas. Co., 2008 NY Slip Op 52468 (App Term 2d Dept) (“the record reveals that the defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation”). Nor may insurers engage in “a fishing expedition” for Mallela evidence “when they cannot set forth a reliable factual basis for what amounts to, at best, mere suspicions.” Pomona Med. Diagnostic, PC v Adirondack Ins. Co., supra; accord, JKM Medical, PC v Progressive Ins. Co., index no. 43109/11, decision dated July 18, 2012 (Dist Ct Nassau Co., Ciaffa, J) (“allowing comprehensive Mallela discovery upon such mere suspicions would be abusive and palpably improper”).

Trial court decisions from Civil Court judges generally follow a similar approach. In a series of well-reasoned opinions, Judge Katherine Levine draws a distinction between cases where the insurer “has articulated a founded belief’ that plaintiff is actually controlled by a non-licenced professional,” and cases where the insurer has submitted nothing more than “unsupported conclusions” and “unsubstantiated hypotheses and suppositions.” Compare Lenox Neuropsychiatry Med., PC v State Farm Ins. Co., 2009 NY Slip Op 50178 (Civ Ct Richmond Co.), with Bay Plaza Chiropractic v State Farm Mut. Auto. Ins. Co., 2008 NY Slip Op 51925 (Civ Ct Richmond Co.).

Moreover, even in cases where some limited Mallela discovery is warranted, trial court judges have emphasized that the scope of discovery into Mallela issues “is not unlimited.” See Cambridge Medical, PC v Nationwide Prop. & Cas. Ins. Co., 2008 NY Slip Op 50629 (Civ Ct Richmond Co., Levine, J), quoting Carothers v Insurance Companies Represented by Bruno, Gerbino & Soriano, LLP, 13 Misc 3d 970, 974 (Civ Ct Richmond Co., Sweeney, J). “Since the amount in dispute in most no-fault matters is small,” a trial court “should not hesitate to exercise its protective powers” under CPLR 3103(a) to curtail “overburdening” requests or “to prevent the [*4]proverbial fishing expedition.” Cambridge Medical, PC v Nationwide Prop. & Cas. Ins. Co., supra; accord, Carothers v Insurance Companies Represented by Bruno, Gerbino & Soriano, LLP, supra (protective orders should “be freely issued to limit discovery in no-fault actions where the amount in dispute is small”).

Finally, in cases, like this one, where Mallela discovery is sought from a non-party, the rules governing non-party discovery provide additional grounds for closely scrutinizing the request. On the latter point, the Second Department’s recent decision in Kooper v Kooper, supra, provides the most appropriate framework for analysis.

As explained in Kooper, discovery requests directed to both parties and non-parties are subject to the same “threshold requirement” — “that the disclosure sought is material and necessary.'” 74 AD3d at 10. The requirement, in general, is easy to satisfy. As construed by the Court of Appeals, see Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968), the phrase “material and necessary” simply “means nothing more or less than relevant.'” Kooper, supra, 74 AD3d at 10, quoting Connors, Practice Commentaries to McKinney’s CPLR, at C3105:5. Applying this threshold test, defendant’s request for plaintiff’s bank records clearly involves information which is “relevant” to defendant’s defenses. See generally Matter of Andrew Carothers, M.D., P.C. v. Insurance Companies Represented by Bruno Gerbino & Soriano, LLP, 26 Misc 3d 448, 452-3 (Civ Ct Richmond Co. 2009) (“That Dr Carothers did not own or control the corporation was further demonstrated by how money flowed into and out of the corporate bank accounts”). Consequently, to the extent plaintiff argues that the subpoena seeks records which are “irrelevant and immaterial” to the instant action, this argument, too, must be rejected.

Nevertheless, disclosure requests directed to non-parties implicate “considerations in addition to those governing discovery from a party.” Kooper, supra, 74 AD3d at 11. These additional considerations go to the heart of plaintiff’s objection to defendant’s subpoena, and put in sharp focus the Court’s statutory authority “to impose, in its discretion, appropriate restrictions on demands which are unduly burdensome’…[or] may cause unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person’…” Kooper, supra, quoting CPLR 3103(a).

As the Court further explained in Kooper, the Appellate Division’s decisions “have consistently adhered to the principle that more than mere relevance and materiality is necessary to warrant disclosure from a nonparty.'” 74 AD3d at 17-18, quoting Diogardi v St. John’s Riverside Hosp., 144 AD2d 333, 334-5 (2d Dept 1988). Moreover, since “a party’s inability to obtain the requested disclosure from his or her adversary or from independent sources [is] a significant factor in determining the propriety of discovery from a nonparty,” a motion to quash may properly be granted “where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty.” Kooper, supra, 74 AD3d at 16-17. “Circumstances necessarily vary from case to case. The supervision of discovery, the setting of reasonable terms and conditions for disclosure, and the determination of whether a particular discovery demand is appropriate, are all matters within the sound discretion of the trial court, which must balance competing interests.”74 AD3d at 17.

In the instant case, plaintiff’s moving papers show that plaintiff’s president and record owner, Dr. William Weiner, was questioned under oath in July 2012, with respect to a large number of claims for no-fault benefits claims that plaintiff had filed with the defendant. The [*5]“Schedule of Claimants” annexed to defendant’s EUO request includes the name of plaintiff’s assignor in this action (Steven Olivares). Dr. Weiner was examined at length respecting potential Mallela issues. He answered each question without hesitation and equivocation.

As part of its compliance with defendant’s EUO request, plaintiff produced more than a dozen documents, including the leases for the premises it occupied, its revolving loan and security agreement, its asset purchasing agreements, UCC financing documents, licences for its professional employees, prior leases for the premises, and W-2s/payroll records for other doctors who worked for plaintiff. Notwithstanding the foregoing, defendant followed up with a second request for production of extensive financial documentation and other records, including tax returns. However, no request was made, at that time, for the bank records that defendant now seeks to obtain through its subpoena.

Thereafter, in the context of its previously served demands for discovery from plaintiff in this action, defendant requested production of many of the very same bank records that it presently requests in its subpoena. Plaintiff objected to the request on the ground that it was “vague, overly broad, unduly burdensome and irrelevant.” In the face of this objection, defendant made no effort to seek court intervention to resolve the dispute. Instead, it served a subpoena upon Citibank, requesting the same records, plus others.

This fact, by itself, reinforces the Court’s suspicion that defendant is improperly using the subpoena in order to obtain leverage in its defense of this matter. If defendant truly believes that plaintiff is a “fraudulently incorporated” medical corporation, it can and should commence a declaratory judgment action against the plaintiff. What it cannot do, in this Court’s opinion, is to seek a financial “proctology exam” of plaintiff’s bank account in the defense of a $912.00 claim, based on mere suspicion that it may uncover evidence of a possible Mallela violation. Cf. Revson v Cinque & Cinque, PC, 221 F3d 71 (2d Cir 2000).

In any event, based upon the extensive testimony given by Dr. Weiner at his EUO, and plaintiff’s production of a panoply of documentation respecting the plaintiff’s financial arrangements with its landlord and others, the Court is not inclined to allow defendant to engage in an overbroad and palpably improper “fishing expedition” into plaintiff’s finances.

For these reasons, the Court grants a protective order in plaintiff’s favor, limiting the subpoena to the signature cards for the subject Citibank account. Insofar as Dr. Weiner’s EUO testimony may have raised additional questions respecting his actual control over plaintiff’s financial affairs, the signature cards should show whether other individuals have been allowed to write checks and make withdrawals from the account. Pending production of the signature cards, and subject to further discovery proceedings between the parties, the Court withholds judgment on whether plaintiff’s bank records may be obtained by the defendant in connection with its defenses to this action. In the event that defendant seeks additional discovery respecting the bank records, however, such requests should be directed to plaintiff, itself, and not to Citibank.

So Ordered:

[*6]

District Court Judge

Dated: June 6, 2013

cc:Friedman Harfenist Kraut & Perlstein, LLP

Law Offices of Robert Macchia

Citibank, N.A.

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 12, 2011. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the appeal is dismissed and the order of the District Court dated July 12, 2011 granting defendant’s motion to dismiss the complaint is vacated.

Plaintiff commenced this action in Supreme Court, Nassau County, pursuant to Insurance Law § 5106 (c), for de novo adjudication of defendant provider’s assigned first-party no-fault benefits claim that had resulted in an arbitration award in favor of the provider. The ground for the de novo adjudication request was that the arbitration award exceeded $5,000. The complaint sought a determination that defendant was not entitled to recover assigned first-party no-fault benefits under plaintiff insurer’s policy. Defendant moved to dismiss the complaint for, among other things, failure to state a cause of action, and plaintiff opposed the motion. While the motion was pending, the Supreme Court transferred the action to the District Court of Nassau County pursuant to CPLR 325 (d). By order dated July 12, 2011, the District Court granted defendant’s motion and dismissed the complaint.

This action seeks, in essence, a declaratory judgment and not monetary damages. While we cannot review the propriety of the order of the Supreme Court transferring this declaratory judgment action to the District Court pursuant to CPLR 325 (d) (see e.g. Priel v Linarello, 7 Misc 3d 64 [App Term, 2d & 11th Jud Dists 2005], affd 44 AD3d 835 [2007]; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16 [App Term, 2d, 11th & 13th Jud Dists 2010]), it is, nevertheless, not within the subject matter jurisdiction of the District Court to adjudicate this particular type of declaratory judgment action (see CPLR 3001; cf. UDCA 212-a [conferring subject matter jurisdiction on the District Court to render a declaratory judgment with respect to certain actions commenced by a party aggrieved by an arbitration award issued pursuant to the New York State Fee Dispute Resolution Program]). “The act of transferring [the action] from Supreme Court to [District Court] did not automatically confer the former’s subject matter jurisdiction upon the latter” (Priel v Linarello, 7 Misc 3d at 66). Thus, as the District Court [*2]lacked subject matter jurisdiction, its order is a nullity (see Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16; Briscoe v White, 8 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2004]).

Accordingly, the appeal is dismissed and the District Court’s order dated July 12, 2011 is vacated.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: May 23, 2013

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

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated March 21, 2012. 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 modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims in the sums of $2,516.58, $967.52 and $832.92, respectively, are 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 upon 15 claims, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint.

As to 12 of the 15 claims at issue, defendant established that it had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) those claims on the ground of lack of medical necessity. Defendant also submitted an affirmed report of an independent medical examination (IME) with respect to 11 of the 12 claims, and a peer review report with respect to the 12th, each of which set forth a factual basis and medical rationale for the conclusion that the services in question were not medically necessary.

In opposition to defendant’s motion, plaintiff submitted an affirmed report of an IME, conducted by a different doctor one day after the IME performed by defendant’s doctor. The IME report submitted by plaintiff contradicted the findings of defendant’s IME report and was sufficient to raise a triable issue of fact as to the medical necessity of the 11 claims which had been denied based upon defendant’s IME report (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff failed to offer any medical evidence to rebut the conclusions of [*2]defendant’s peer review report, which established a lack of medical necessity for the
12th claim. Accordingly, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claim for $2,516.58, which was denied based upon the peer review, should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

With regard to two of the three remaining claims, for $967.52 and $832.92, respectively, defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Defendant also established that it had never received responses to these requests. Thus, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those two claims should have been granted, as defendant’s time to pay or deny those claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Finally, as to the 15th claim, defendant failed to establish as a matter of law that the fee charged exceeded the amount set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and therefore it was not entitled to summary judgment on this claim.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claims for $2,516.58, $967.52 and $832.92, respectively, are granted.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: May 22, 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 (Carolyn E. Wade, J.), dated February 15, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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, defendant appeals from so much an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant’s cross motion papers established that defendant had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) based on a lack of medical necessity. In addition, defendant submitted two affirmed peer review reports, each of which set forth a factual basis and a medical rationale for the determination that there was no medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff’s remaining contentions on appeal lack merit (see Quality Health Prods. v GEICO Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Queens Med. Supply, Inc. v GEICO Gen. Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52284[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 22, 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, Richmond County (Philip S. Straniere, J.), entered February 17, 2011. The order granted defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action is barred by the statute of limitations.

A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). “In an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant . . . when the summons is served upon the defendant” (CPLR 203 [b] [1]). The present action was commenced in the Civil Court in 2003 by service of the summons, pursuant to CPLR 312-a (see CCA former 403), before the filing system for commencing actions in the Civil Court took effect. Here, dismissal of the action due to a violation of former section 409 of the New York City Civil Court Act, which required that a copy of the summons with proof of service ^[FN1] be filed with the clerk of the court within 14 days after service of the summons, is not warranted, since, by order entered October 16, 2009, the Civil Court (Katherine A. Levine, J.) conditionally permitted the filing thereof nunc pro tunc ^[FN2] [*2]
(see CCA former section 411; J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co., 24 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2009]). It is undisputed that plaintiff filed the summons with proof of service in accordance with Judge Levine’s order and, thus, the filing was given nunc pro tunc effect (see CCA former section 411). Consequently, since the cause of action accrued in 2002, defendant failed to make a prima facie showing that the six-year statute of limitations (see CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the April 2003 commencement of the action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint on the ground that the action is barred by the statute of limitations is denied.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 22, 2013

Footnotes

Footnote 1: In the instant case, proof of service was defendant’s signed acknowledgment of receipt of the mailed service of the summons (see CPLR 312-a [b]).

Footnote 2: The issue of whether the Civil Court providently exercised its discretion in permitting the nunc pro tunc filing after more than five years is not subject to review on this appeal.