CV-032833-12

Russell Friedman & Associates, LLP, Attorney for Plaintiff, 3000 Marcus Ave. Suite 2E1, Lake Success, NY 11042

McDonell & Adels, PLLC, Attorney for Defendants, 401 Franklin Ave., Garden City, New York 11530

The instant action was commenced by the plaintiff on October 4, 2012, seeking $879.73 for health services provided to Sakeena Carter, as a result of injuries allegedly sustained in an automobile accident on December 18, 2010. In December 2012, defendant USAA commenced an action in Supreme Court, Kings County, seeking a declaratory judgment, claiming that certain specified motor vehicle accidents were uncovered events. In September 2013, Hon. Fred Hirsh issued an order staying this action, pending a final determination of the declaratory judgment action. Thereafter, a judgment was issued in the Supreme Court action upon default of the parties, wherein it was determined that, inter alia, the accident on December 18, 2010 was an intentional and uncovered event, and that USAA had no duty to provide no-fault coverage for same.

Plaintiff Hillside Open MRI, PC and its assignor, Sakeena Carter, were both named in the declaratory judgment action. However, it was noted on the order that “[t]his defendant [Sakeena Carter] has not been served with the Summons and Complaint. Plaintiff is seeking court permission to serve via publication.” The court [*2]ordered “that USAA is granted an extension of time to effectuate substituted service via publication upon the following defendants: Sakeena Carter, ….” In a footnote on page 3 of the defendant’s current reply papers, it is stated that the defendant’s motion for a default judgment against Sakeena Carter, who was allegedly served via publication, is returnable in Supreme Court on September 18, 2015. This court has no information regarding the status of that matter.

The defendant presently seeks an order granting summary judgment dismissing the plaintiff’s complaint pursuant to CPLR 3212(a), on the ground that it has previously been determined that the plaintiff is not entitled to recover and is, therefore, collaterally estopped from relitigating the issue of coverage.

Under the particular circumstances presented here, the defendant’s motion is granted to the extent that the parties are directed to appear for a Conference before this court at 99 Main Street, Hempstead, NY atA.M. on theday of, 2015.

The foregoing constitutes the decision and order of the court.

SO ORDERED:
Dated: November 9, 2015

Hon. Ignatius L. Muscarella
District Court Judge

cc: Friedman, Harfenist, Kraut & Perlstein, Esqs.
McDonnell & Adels, PLLC
ILM:jc

Decided on October 30, 2015

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 (William A. Viscovich, J.), entered May 2, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

In support of its motion, defendant submitted an affirmation executed by the attorney who was assigned to conduct the EUOs of plaintiff to establish that plaintiff had failed to appear. However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (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]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff’s cross motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

Decided on October 30, 2015

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 (Dawn Jimenez Salta, J.), entered September 13, 2012. The order denied plaintiff’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment.

Plaintiff’s contention that its motion for summary judgment should have been granted lacks merit. Plaintiff failed to establish its prima facie entitlement to judgment as a matter of law since it did not establish either that defendant had failed to deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

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

Decided on October 30, 2015

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 (Barry A. Schwartz, J.), entered May 10, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim based on plaintiff’s assignor’s failure to appear for examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s contention, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff’s assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant was entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 18, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the IMEs. The doctor failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for both of the IMEs. Therefore defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. [*2]Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered March 14, 2013. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking summary judgment on its third cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered March 14, 2013, insofar as appealed from as limited by the brief, the Civil Court denied the branch of plaintiff’s motion seeking summary judgment on the third cause of action and granted the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action.

Plaintiff correctly argues that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action should have been denied. In support of a claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted affidavits and an affirmation from the medical professionals who were to perform the IMEs which stated in a conclusory manner that plaintiff’s assignor had failed to appear at the duly scheduled IMEs. These affidavits and affirmation were insufficient to establish defendant’s entitlement to summary judgment (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action should have been denied.

Plaintiff’s contention that it was entitled to summary judgment upon its third cause of action lacks merit. Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of [*2]claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, plaintiff did not establish its prima facie entitlement to summary judgment. As a result, the branch of plaintiff’s motion seeking summary judgment upon its third cause of action was properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the third cause of action is denied.

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

Decided on October 27, 2015

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. d’Auguste, J.), dated January 14, 2014, as denied its motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c).

Per Curiam.

Order (James E. d’Auguste, J.), dated January 14, 2014, insofar as appealed from, affirmed, with $10 costs.

Although plaintiff failed to move for entry of a default judgment within one year (see CPLR 3215[a]), the court exercised its discretion providently by denying defendant’s motion to dismiss the complaint as abandoned pursuant to CPLR 3215(c). Plaintiff demonstrated a meritorious cause of action for assigned first-party no-fault benefits, which defendant does not dispute and, although the particular law office failure excuse proffered by plaintiff is less than compelling, there is no indication in the record that defendant was in any way prejudiced by plaintiff’s delay (see LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1999]; see also Spira v New York City Tr. Auth., 49 AD3d 478 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on October 26, 2015

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 (Dawn Jimenez Salta, J.), entered November 30, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, finding that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel failed to demonstrate, by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the order is reversed and defendant’s motion is denied.

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