Reported in New York Official Reports at Ola v American Family Connect Ins. Co. (2024 NY Slip Op 51804(U))
[*1]| Ola v American Family Connect Ins. Co. |
| 2024 NY Slip Op 51804(U) |
| Decided on November 15, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 15, 2024
PRESENT: : CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
2023-917 Q C
against
American Family Connect Insurance Company, Formerly Known as
Ameriprise Insurance Company, Appellant-Respondent.
Callinan & Smith, LLP (Steven Daniel Levy of counsel) for appellant-respondent. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel) for respondent-appellant.
Appeal and cross-appeal from an order of the Civil Court of the City of New York, Queens County (Karen Lin, J.), entered July 14, 2023. The order, insofar as appealed from by cross-petitioner, American Family Connect Insurance Company, formerly known as Ameriprise Insurance Company, granted the petition by Eufrosine Ola to vacate an arbitrator’s award and a master arbitrator’s award, and denied the insurance company’s cross-petition to confirm the arbitrator’s award and the master arbitrator’s award. The order, insofar as cross-appealed from by petitioner Ola, upon granting the petition to vacate the arbitrator’s award and master arbitrator’s award, did not order a rehearing before a new arbitrator. The appeal from the order entered July 14, 2023 brings up for review so much of an order of that court (Soma S. Syed, J.) entered June 25, 2024 as, upon reargument, made the same determination as was made in the order appealed from but added that “the case shall be heard before a new arbitrator,” thereby substantially adhering to the prior determination (see CPLR 5517 [a] [1]; [b]).
ORDERED that the appeal from the order entered July 14, 2023 is dismissed, as that order was superseded by the order entered June 25, 2024, made upon reargument; and it is further,
ORDERED that the order, entered June 25, 2024, insofar as reviewed, is affirmed, without costs.
Eufrosine Ola (the insured) commenced this proceeding, pursuant to CPLR 7511, to vacate both an arbitrator’s award denying the insured’s claims to recover first-party no-fault benefits for a left shoulder surgery performed on July 17, 2019 and other related medical services, and a master arbitrator’s award which upheld the award of the arbitrator, specifically requesting that, upon such vacatur, the matter be remitted for a new arbitration hearing before a different arbitrator (see CPLR 7511 [d]). American Family Connect Insurance Company (the [*2]insurer) cross-petitioned to confirm the arbitrator’s award and the master arbitrator’s award. By order entered July 14, 2023, the Civil Court (Karen Lin, J.) granted the insured’s petition on the ground that the master arbitrator’s award was arbitrary because the arbitrator’s award was contrary to settled law, but did not order a rehearing, and denied the insurer’s cross-petition. The insurer appeals, and the insured cross-appeals, from that order.
The insured moved for leave to reargue the petition on the ground, among others, that her request that the matter be remitted for a rehearing before a different arbitrator had not been granted. The insurer cross-moved for leave to reargue the cross-petition. By order entered June 25, 2024, the Civil Court (Soma S. Syed, J.) in effect granted the respective branches of the motion and cross-motion seeking leave to reargue and, upon reargument, made the same determination as was made in the original order, adding only a directive that “the case shall be heard before a new arbitrator.”[FN1] Upon the appeal from the July 14, 2023 order, we review so much of the June 25, 2024 order as, upon reargument, substantially adhered to the prior determination (see CPLR 5517 [b] [permitting review of a subsequent order which “upon reargument mak[es] the same or substantially the same determination as is made in the order appealed from” (CPLR 5517 [a] [1])]).
For the reasons stated by the Civil Court, we find that the petition to vacate the arbitrator’s and master arbitrator’s awards was properly granted and the cross-petition was properly denied. To the extent that the insured purports to cross-appeal from so much of the July 14, 2023 order as “failed to address the arbitrator’s ruling that the Petitioner must prove the lack of an assignment, in the absence of proof of an assignment,” that ruling has been vacated as the entire award has been vacated. Nevertheless, we note that the insured correctly argues that this determination was contrary to settled law (see 11 NYCRR 65-3.11 [a]; Lopes v Liberty Mut. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51279[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order entered June 25, 2024, insofar as reviewed, is affirmed.
BUGGS, J.P., MUNDY J., concur.
HOM, J. Taking no part.
ENTER:Paul Kenny
Chief Clerk
Decision Date: November 15, 2024
Footnote 1: The June 25, 2024 order states that the insurer “did not object to a new arbitrator in their supporting papers.”AVK RX Inc v Progressive Advanced Ins. Co. (2024 NY Slip Op 51521(U))
Reported in New York Official Reports at AVK RX Inc v Progressive Advanced Ins. Co. (2024 NY Slip Op 51521(U))
AVK RX Inc As Assignee of Hassan Shuaib, Plaintiff,
against Progressive Advanced Insurance Co., Defendant. |
Index No. CV-750150-23/RI
Robert J. Helbock, Jr., J.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:
Papers Numbered
Notice of Motion and Affirmation/Affidavit NYSCEF Doc#: 4-12
Affirmation in Opposition NYSCEF Doc#: 14
Affirmation in Reply NYSCEF Doc#: 15-16
Upon the foregoing cited papers, the decision on Defendant’s Motion for Summary Judgment is as follows:
Plaintiff, AVK RX Inc. (hereinafter “Plaintiff”) as assignee of Hassan Shauib (hereinafter “Assignor”) commenced this action against the defendant, Progressive Advanced Insurance Co. (hereinafter “Defendant”), to recover assigned first-party No-Fault insurance benefits for medical treatment provided to the Assignor pursuant to an automobile insurance policy issued by the Defendant.
Currently before the Court is Defendant’s motion seeking an order pursuant to CPLR §3212 granting summary judgment on the grounds that the Assignor violated a condition precedent to coverage upon the failure to attend scheduled medical examinations. The Plaintiff filed timely opposition to the motion and the matter was argued before the Court.
In this instance, the summons and complaint allege the Defendant breached the automobile insurance contract by failing to pay for medical treatment rendered to the Assignor arising from injuries that occurred due to a motor vehicle accident. The defense to the claim is the Assignor allegedly did not attend two duly scheduled independent medical exams (hereafter referred to as IME), which is a condition precedent to paying the claims. For the Defendant to [*2]prevail with the defense, it must demonstrate the policyholder/assignor was properly notified of the examinations and failed to attend.
The Plaintiff opposes the Defendant’s summary judgment motion alleging, inter alia, the Defendant has failed to meet its burden of proof to receive summary judgment by failing to demonstrate the IME notices were properly and timely mailed. In particular, the Plaintiff contends the affidavit of Ms. Tracy Simpson is not sufficient to meet the Defendant’s burden of proof of mailing.
The issue of what constitutes a party’s burden of proof of mailing for a summary judgment motion has been addressed by the Court in numerous cases. The Supreme Court, Appellate Division ruled in the matter of Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C.:
“Generally, ‘Proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee’ (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 114 AD3d 33, at P. 46, 977 N.Y.S.2d 292, affd. 25 NY3d 498). ‘The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.’ (Citing New York & Presbyt. Hosp. v. Allstate Inc. Co., 29 AD3d 547, quoting Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680.) ‘However, for the presumption to arise the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed. See Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 (Court of Appeals, 1978).’ Progressive Cas. Ins. Co. v. Metro Psychological Services, P.C., 139 AD3d 693 (Sup. Ct, App. Div., 2nd Dept., May 4, 2016).
In this matter, the Defendant offers the affidavit of Ms. Tracy Simpson, a Manager at ExamWorks, Inc., as evidence that the notice of the IME was properly addressed and mailed to the assignor/examinee. ExamWorks Inc. is a third-party vendor that schedules the IME’s, notifies the examinee, and provides the resulting doctor’s report on behalf of the Defendant. In her affidavit, Ms. Simpson does describe actual knowledge of the mailing of the notices for the IME to the Assignor. The Defendant offers Ms. Simpson’s affidavit to show the standard office practice or procedure to address and mail the vendor’s notices. The affidavit states that in the vendor’s regular course of business the Defendant requests a medical examination (although she does not state who receives the request), the vendor’s set up department enters the information provided by the Defendant, the scheduling department schedules the IME appointment, the data entry department enters the assignor/examinee’s address and prints the letter notifying the examinee of the appointment information, then transmits the document to the mailing department, which puts postage on the envelope and delivers the envelope to the U.S. Postal Service daily. Ms. Simpson also acknowledges it is her duty to ensure compliance with that process.
The Defendant alleges that this affidavit sufficiently proves the process or procedure used to properly address and mail the notice of the IME.
However, Ms. Simpson’s affidavit does not make any statement that she satisfied her duty to ensure compliance with the process, nor does she describe any steps taken to ensure the notice was addressed and mailed properly. For example, Ms. Simpson does not describe any audit, inventory, supervision, or investigation of the mail for that day to determine the process and [*3]procedures were compliant. Without any actual notice of the addressing and mailing of the notice of IME, this affidavit falls short of the “ensuring the likelihood that the item is always properly addressed and mailed.” (Nassau Ins. Co. v. Murray, 46 N.Y.S.2d 828 [Court of Appeals, 1978]).
If the affidavit of Ms. Simpson does not prove the procedure or process is designed to ensure the items are properly addressed or mailed, then the Defendant can still prove the mailing of the IME notice by providing a business record to meet its burden of proof.
Attached to Ms. Simpson’s affidavit as exhibits, the Defendant offers the copies of the letters addressed to the Assignor evidencing the notice of the IME. Since the Plaintiff did not raise any issue of admissibility of the records in their opposition to the motion, the Court will not examine their admissibility. (Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 AD3d 45 [2d Dept 2014]).
However, the Defendant did not offer any business record evidencing the mailing of the documents, such as a U.S. Postal Service receipt or an inventory of the outgoing mail. Therefore, Ms. Simpson’s affidavit is unsatisfactory for that purpose. “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.” (Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]).
Without proving a standard office practice or procedure designed to ensure that items are properly addressed and mailed or providing a business record evidencing the mailing of the document, the Defendant has failed to meet its burden of proof for summary judgment. Therefore, the Court finds there is an issue of fact for trial regarding whether the notices for the IME were properly addressed and mailed by the Defendant.
The Plaintiff also opposed the Defendant’s motion on the grounds that the affidavit of the Defendant’s claims examiner, Cynthia Morges, failed to prove the denial of the claim (NF-10) was timely issued, that the Defendant failed to act diligently, the Defendant failed to attach a copy of the policy at issue, and failed to demonstrate the IME was necessary. Given the Defendant’s failure to meet its first burden of proof, the Court does not address the Plaintiff’s other opposing arguments and leaves them to the Plaintiff to raise at trial if it shall so choose.
Accordingly, the Defendant’s summary judgment motion is DENIED.
Furthermore, the Plaintiff did not oppose the Defendant’s summary judgment motion on the grounds there was any outstanding discovery. Therefore, the Plaintiff is ordered to file the Notice of Trial within sixty (60) days of the date of this decision.
This is the decision and order of the Court.
Date: November 8, 2024Staten Island, New York
Hon. Robert J. Helbock, Jr.
Judge, NYC Civil Court
Reported in New York Official Reports at Central Pharm., Inc. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 51557(U))
| Central Pharm., Inc. v Nationwide Mut. Ins. Co. |
| 2024 NY Slip Op 51557(U) |
| Decided on November 8, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on November 8, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2024-273 Q C
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Koenig Pierre of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Andrea S. Ogle, J.), dated January 5, 2024. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect, pursuant to CPLR 3212 (g), that the only issue for trial was “the scheduling of EUO[s] based upon the objection letters of the [p]laintiff and the [d]efendant’s responses.”
To the extent that the Civil Court found an issue of fact as to the reasonableness of the location of the EUO, each of the EUO scheduling letters offered plaintiff the option to appear virtually. As plaintiff does not challenge the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s motion for summary judgment dismissing the complaint is granted (see GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co., 82 Misc 3d 128[A], 2024 NY Slip Op 50395[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2024]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: November 8, 2024
Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: October 22, 2024
Before: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024
Sakandar v American Tr. Ins. Co. (2024 NY Slip Op 04792)Reported in New York Official Reports at Sakandar v American Tr. Ins. Co. (2024 NY Slip Op 04792)
| Sakandar v American Tr. Ins. Co. |
| 2024 NY Slip Op 04792 |
| Decided on October 2, 2024 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 2, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
WILLIAM G. FORD
LAURENCE L. LOVE, JJ.
2022-03323
(Index No. 707562/19)
v
American Transit Insurance Company, appellant.
Short & Billy, P.C. (Greenberg Traurig, LLP, New York, NY [James W. Perkins, John C. Molluzzo, Jr., and Katherine M. Clemente], of counsel), for appellant.
Fass & D’Agostino, P.C., Melville, NY (Joseph D’Agostino of counsel), for respondent).
DECISION & ORDER
In an action, inter alia, to recover no-fault benefits for medical expenses and lost wages, the defendant appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered April 13, 2022. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action in the third amended complaint is granted.
The plaintiff commenced this action against the defendant, American Transit Insurance Company, inter alia, to recover no-fault benefits for medical expenses and lost wages relating to a motor vehicle accident. The third amended complaint alleged that in August 2016, the plaintiff was involved in a motor vehicle accident, that his vehicle was insured by the defendant, and that the defendant refused to pay to the plaintiff his lost wages and certain medical expenses.
The third cause of action alleged bad faith, the fourth cause of action alleged a violation of General Business Law § 349, and the fifth cause of action alleged breach of contract pertaining to no-fault benefits. The defendant moved pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action. In an order entered April 13, 2022, the Supreme Court denied the motion. The defendant appeals. We reverse.
Contrary to the determination of the Supreme Court, the third cause of action, alleging bad faith in the insurance context, was subject to dismissal. In reading the third cause of action, alleging bad faith, liberally and giving the plaintiff the benefit of every reasonable inference that may be drawn therefrom (see Leon v Martinez, 84 NY2d 83, 87-88), the plaintiff failed to state a cause of action alleging bad faith, as “there is no separate cause of action in tort for an insurer’s bad faith failure to perform its obligations” under an insurance contract (Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [internal quotation marks omitted]; Continental Cas. Co. v Nationwide Indem. Co., 16 AD3d 353, 355).
The plaintiff also failed to state a cause of action alleging a violation of General Business Law § 349. This action involves a private contract dispute regarding insurance coverage under the policy at issue, in contrast to the consumer-oriented, deceptive conduct aimed at the public at large that General Business Law § 349 is designed to address (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 320-321; Abraham v Torati, 219 AD3d 1275, 1281).
The Supreme Court also should have granted dismissal of the fifth cause of action, alleging breach of contract related to payment of no-fault benefits, since the plaintiff assigned his right to no-fault benefits to the medical provider (see Noel v Nationwide Ins. Co. of Am., 170 AD3d 1186, 1187).
In light of our determination, we need not reach the defendant’s remaining contention.
DUFFY, J.P., CHRISTOPHER, FORD and LOVE, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court
Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2024 NY Slip Op 51346(U))Reported in New York Official Reports at Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2024 NY Slip Op 51346(U))
[*1]| Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. |
| 2024 NY Slip Op 51346(U) |
| Decided on September 30, 2024 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 30, 2024
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Brigantti, Tisch, JJ.
570101/24
against
Country-Wide Insurance Company, Defendant-Appellant.
Defendant appeals from a “decision and order” of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about May 15, 2020, and a judgment (same court and Judge), entered March 18, 2022, after a nonjury trial, in favor of plaintiff and awarding it damages in the principal sum of $19,646.13.
Per Curiam.
Judgment (Myrna Socorro, J.), entered March 18, 2022, reversed, with $30 costs, and complaint dismissed. Appeal from “decision and order” (Myrna Socorro, J.), entered on or about May 15, 2020, dismissed, without costs, as subsumed in the appeal from the judgment.
In this first-party no-fault action, which came on for trial after having been marked “final,” the trial transcript consists of barely nine pages of colloquy between the court and respective counsel. No witnesses were sworn or evidence received. Instead, plaintiff-provider referenced admissions made by defendant-insurer in defendant’s prior motion for summary judgment, regarding, inter alia, its receipt of plaintiff’s claim. Following these abbreviated proceedings, a judgment was entered in plaintiff’s favor in the principal sum of $19,646.13.
We reverse. The sole evidence relied upon by plaintiff, while sufficient to establish defendant’s receipt of the claim (see generally Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 2007 NY Slip Op 27173 [App Term, 1st Dept 2007]), also established that defendant timely sought verification, which was not provided. As a result, plaintiff failed to establish, prima facie, that the claim was overdue i.e., was not “denied or paid” within the prescribed 30—day period (see 11 NYCRR 65-3.8[c]; Insurance Law § 5106[a]; Viviane Etienne Med. Care, P.C. v. Country—Wide Ins. Co., 25 NY3d 498, 507 [2015]). Therefore, the complaint should have been dismissed.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the CourtDecision Date: September 30, 2024Bronx Community Med., P.C. v MVAIC (2024 NY Slip Op 51538(U))
Reported in New York Official Reports at Bronx Community Med., P.C. v MVAIC (2024 NY Slip Op 51538(U))
[*1]| Bronx Community Med., P.C. v MVAIC |
| 2024 NY Slip Op 51538(U) [84 Misc 3d 129(A)] |
| Decided on September 27, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 27, 2024
PRESENT: : CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2023-925 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and Frank D’Esposito of counsel), for appellant. The Rybak Firm, PLLC (Damin Toell and Richard Rozhik of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated August 10, 2023. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted without prejudice.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied MVAIC’s motion which sought summary judgment dismissing the complaint either on the ground that MVAIC had never received the claims at issue or that the action had been commenced after the three-year statute of limitations had expired. The order also denied plaintiff’s cross-motion for summary judgment.
MVAIC made a prima facie showing that it had not received the claim forms at issue. The affidavit submitted by plaintiff’s owner in opposition to MVAIC’s motion was insufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, MVAIC (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), as plaintiff’s owner repeatedly stated that he personally mailed the claim forms “to [the] insurance carrier,” without setting forth the name of the recipient or the address to which they were mailed, and the copies of the claim forms annexed to plaintiff’s cross-motion were dated after the date on which the claim forms were purportedly mailed “to [the] insurance carrier.” Consequently, [*2]MVAIC’s time to pay or deny plaintiff’s claims never began to run and MVAIC is entitled to summary judgment dismissing the complaint without prejudice, as it is premature (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Wave Med. Servs., P.C. v Metlife Auto & Home, 69 Misc 3d 138[A], 2020 NY Slip Op 51321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; cf. Veraso Med. Supply Corp. v NY City Tr. Auth., 63 Misc 3d 152[A], 2019 NY Slip Op 50754[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted without prejudice.
BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 27, 2024Jacobson v State Farm Fire & Cas. Co. (2024 NY Slip Op 51540(U))
Reported in New York Official Reports at Jacobson v State Farm Fire & Cas. Co. (2024 NY Slip Op 51540(U))
[*1]| Jacobson v State Farm Fire & Cas. Co. |
| 2024 NY Slip Op 51540(U) [84 Misc 3d 129(A)] |
| Decided on September 27, 2024 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on September 27, 2024
PRESENT: : CHEREÉ A. BUGGS, J.P., WAVNY TOUSSAINT, MARINA CORA MUNDY, JJ
2023-1068 K C
Dr. Bruce Jacobson, D.C., as Assignee of Jene Waldron, Appellant,
against
State Farm Fire and Casualty Company, Respondent.
Zara Javakov, Esq., P.C. (Damin J. Toell of counsel), for appellant. McDonnell, Adels & Klesyzick, PLLC (Michael J. Giordano of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated February 1, 2023. The order granted defendant’s motion to vacate a judgment of the same court entered March 11, 2019 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant’s answer is denied.
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on March 11, 2019 upon defendant’s failure to appear or answer the complaint. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated February 1, 2023, the Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.
“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) must show both a reasonable excuse for the default and the existence of a potentially meritorious [*2]defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]). A claim representative employed by defendant submitted an affidavit stating that while she believed the summons and complaint had been sent to counsel via email, it was subsequently determined that the email was not properly sent to counsel due to a clerical error. However, defendant failed to proffer an affidavit from someone with personal knowledge setting forth what the clerical error consisted of, who made the error, who discovered the error, and when the error was discovered. Consequently, defendant’s conclusory and unsubstantiated assertion that its default was due to a clerical error was insufficient to qualify as a reasonable excuse (see A.B. Med. Servs. PLLC v Allstate Ins. Co.,11 Misc 3d 128[A], 2006 NY Slip Op 50243[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 81 Misc 3d 141[A], 2023 NY Slip Op 51471[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dist 2023]).
Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered March 11, 2019 and to compel plaintiff to accept defendant’s answer is denied.
BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 27, 2024GEICO Ins. Co. v Manage Transi Corp. (2024 NY Slip Op 51308(U))
Reported in New York Official Reports at GEICO Ins. Co. v Manage Transi Corp. (2024 NY Slip Op 51308(U))
[*1]| GEICO Ins. Co. v Manage Transi Corp. |
| 2024 NY Slip Op 51308(U) |
| Decided on September 13, 2024 |
| Supreme Court, Kings County |
| Rivera, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through September 25, 2024; it will not be published in the printed Offical Reports. |
Decided on September 13, 2024
GEICO Insurance Company a/s/o
CLETUS J. BELFON, Plaintiff, against Manage Transi Corp., MV CONTRACT TRANSPORTATION INC., and JAMES J. BOYNTON, Defendants. |
Index No. 518673/2020
Attorney for Plaintiff
Carman, Callahan & Ingham LLP
Jami C Amarasinghe
266 Main Street
Farmingdale, NY 11735
(516) 370-5539
jamarasinghe@carmanlawteam.com
Attorney for Defendant MV Contact Transporation Inc.
Kaufman Dolowich & Voluck
Christopher Atlee Arcitio
40 Exchange Place 20th Floor
New York, NY 10005
(212) 485-9600
Christopher.Arcitio@kdvlaw.com Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 28, 2023, under motion sequence number four, by defendant MV Contract Transportation Inc. (hereinafter MV Contract), for an order pursuant to CPLR 3215, granting a default judgment on the cross-claims that MV Contract has asserted against codefendants, Manage Transit Corp. (hereinafter MTC) and James J. Boynton, (hereinafter collectively the codefendants). The motion is unopposed.
-Notice of motion-Affirmation in support
Exhibits A-O
-Stipulation to restore motion-Affidavits of service of the motion BACKGROUND
On October 2, 2020, GEICO Insurance Company (hereinafter GEICO or plaintiff) commenced the instant action against MV Contract, MTC and James J. Boynton by filing a summons and verified complaint with the Kings County Clerk’s office (KCCO). On January 11, 2021, the plaintiff filed an amended summons and verified complaint, changing the name of defendant from Manage Transport Corp. to Manage Transit Corp.
The amended verified complaint alleges the following salient facts. The plaintiff is a corporation authorized to engage in and carry out on an insurance business. Cletus J. Belfon, is the owner of a 2014 Jeep, bearing New York license plate GRG6773. Plaintiff insured the 2014 Jeep under policy number XXXXX,[FN1] and the policy was in full force and effect on October 6, 2017. Defendant MTC leased a 2016 Ford Bus bearing New York Plate 30455BB from defendant MV Contract. On October 6, 2017, defendant James J. Boynton was operating this 2016 Ford Bus with permission and consent of defendant MTC.
On October 6, 2017, James J. Boynton was traveling westbound on Linden Blvd in the middle lane at or near its intersection with Berriman Street, Kings County, New York, when he changed lanes to the far left and struck the 2014 Jeep driven by Cletus J. Belfon on the front end and front passenger side. The collision was caused by the negligence of the defendants MV Contract, MTC, and James J. Boyton in the maintenance, operation, and control of the aforesaid bus. As a result of the accident, Cletus J. Belfon sustained serious personal injuries as defined by Insurance Law § 5102 (d) for which he received first party no fault benefits from the plaintiff. To date, plaintiff has issued $34,223.54 in no-fault payments on behalf of plaintiff’s Cletus J. Belfon. Plaintiff also alleges a cause of action for property damages in the amount of $5,629.42.
Defendants MTC and James J. Boton have neither answered the complaint nor appeared in the action.
On April 15, 2021, MV Contract filed a verified answer with cross-claims with the KCCO. The answer contains twelve affirmative defenses and four cross-claims asserted against codefendants MTC and James J. Boyton. The first cross-claim is for contribution; the second cross-claim is for common law indemnification; the third cross-claim is for contractual indemnification; and the fourth cross-claim is for breach of contract. The answer with cross-claims filed by MV Contract did not contain a demand for an answer to the cross-claims within the pleading.[FN2]
LAW AND APPLICATION
MV Contract has moved pursuant to CPLR 3215 for leave to enter a default judgment against codefendants MTC and James J. Boyton based on their failure to appear or interpose an answer to the cross-claims MV Contract asserted against them.
CPLR 3215 provides in pertinent part as follows:
“(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other [*2]neglect to proceed, the plaintiff may seek a default judgment against him . . .
(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney.”
“On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defaulting party’s default in answering or appearing” (Atlantic Cas. Ins. Co. v RJNJ Services, Inc., 89 AD3d 649, 651 [2d Dept 2011], citing CPLR 3215 [f]; Allstate Ins. Co. v Austin, 48 AD3d 720, 720 [2008]). “CPLR 3215 (f) states, among other things, that upon any application for a judgment by default, proof of the facts constituting the claim . . . are to be set forth in an affidavit ‘made by the party’ (HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736, [2d Dept 2009]; CPLR 3215 [f]).
“While counterclaims are not specifically mentioned anywhere in CPLR 3215, the statute’s legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints” (Giglio v NTIMP, Inc., 86 AD3d 301, 307 [2d Dept 2011], citing 5 NY Adv. Comm. Rep. A-476 [Advance Draft 1961]; 7 Weinstein-Korn-Miller, Civ. Prac. § 3215.08).
To obtain a default judgment against a party for not answering a pleading, the movant must demonstrate that the alleged defaulting party had an obligation to respond to the movant’s pleading and failed to do so. CPLR 3011 sets forth what pleadings there shall be and what they shall be called in an action. The general rule is that every pleading under the CPLR that contains a cause of action must, labels notwithstanding, be responded to with an answer or, in the case of a counterclaim, with a reply (see CPLR 3011).
A special rule exists for cross-claims. In 1977, CPLR 3011 was amended to its present form in which it calls for an answer to a cross-claim only if it is demanded in the cross-claim itself (see Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, C3011:8). Absent such a demand, the allegations of the cross-claim are deemed denied or avoided (id.). Furthermore, the denial that is deemed made under CPLR 3011 will prevent the party serving the cross-claim from obtaining a default judgment (see CPLR 3011; Connors, Practice Commentaries, C3011:8; see also Giglio v NTIMP, Inc., 86 AD3d 301 [2d Dept 2011]).
Here, MV Contract communicated to MTC and James J. Boyton that it was demanding an answer to the cross-claims that it had asserted against them. However, the demand for an answer was not made within the cross-claim itself, but rather, in a separate correspondence. Such a method would be ineffective to trigger an obligation to respond to the cross-claims.
Moreover, to support its application for a default judgment MV Contract was required to show that it properly served MTC and James J. Boyton with the cross-claims.
CPLR 3012 (a) provides that if a defendant has not appeared in the action, then any subsequent pleading must be served upon it in the same manner as a summons and complaint (CPLR 3012 [a]). However, if the party has already appeared, a pleading can be served in the manner provided for service of papers generally (id.). Papers may be served upon a party through their attorney of record via regular mail (CPLR 2103 [b]). This is the method through which interlocutory papers, all litigation papers beyond initial service of process, are served (see [*3]CPLR 2103; see Wachovia Mtge., FSB v Coleman, 170 AD3d 1244, 1245 [2d Dept 2019]).
A “defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR 320 [a]). Here, there is no claim or evidence that codefendants MTC and James J. Boyton appeared in the main action commenced by GEICO against them. Under these circumstances MV Contract’s answer with cross-claims was required to be served upon codefendants MTC and James J. Boyton in the manner of a summons and complaint. (see CPLR 3012, Connors, Prac Commentaries, C3012:7). James J. Boyton should have been served with the answer with cross-claims pursuant to CPLR 308. MV Contract had many options to serve process on MTC, including service on the New York State Secretary of State pursuant to Business Corporation Law § 306 (b) (1); another option was service pursuant to CPLR 311 (a) (1).
On April 15, 2021, MV Contract filed its answer with cross-claims with the KCCO under NYSCEF document number six. Although this method of service would have been proper pursuant to CPLR 2103 if the codefendants had appeared in the main action, it was improper under these circumstances. MV Contract also mailed its answer with cross-claims upon the codefendants in an effort to comply with CPLR 3215 (g). However, neither the filing of its answer with cross-claims with the KCCO nor the mailing of the pleadings to the codefendants satisfied the statutory requirement of effectuating service in the manner of a summons and complaint. MV Contract never properly effectuated service upon MTC and James J. Boyton and therefore their obligation to respond had never been triggered.
CONCLUSION
The motion by MV Contract Transportation Inc. for an order pursuant to CPLR 3215 granting a default judgment on the cross-claims asserted against codefendants, Manage Transit Corp. and James J. Boynton is denied.
The foregoing constitutes the decision and order of this Court.
ENTER:J.S.C.
Footnote 1:Redacted for purposes of publication.
Footnote 2:On April 15, 2022, MV Contract filed with the KCCO a copy of a letter from its counsel addressed to codefendants MTC and James J. Boyton demanding an answer to its cross-claims.Matter of Government Empls. Ins. Co. v Bermeo (2024 NY Slip Op 04388)
Reported in New York Official Reports at Matter of Government Empls. Ins. Co. v Bermeo (2024 NY Slip Op 04388)
| Matter of Government Empls. Ins. Co. v Bermeo |
| 2024 NY Slip Op 04388 |
| Decided on September 11, 2024 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 11, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
CHERYL E. CHAMBERS
LARA J. GENOVESI
LOURDES M. VENTURA, JJ.
2022-08142
2023-02615
(Index No. 720674/21)
v
Franklin Bermeo, appellant.
Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Carolyn M. Canzoneri and Dominic DiPrisco of counsel), for appellant.
Katie A. Walsh, Melville, NY (Andrew Weber of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, Franklin Bermeo appeals from (1) a judgment of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered September 9, 2022, and (2) an order of the same court entered January 27, 2023. The judgment, after a framed-issue hearing, granted that branch of the petition which was to permanently stay arbitration. The order, insofar as appealed from, in effect, upon reargument, adhered to the determination in the judgment.
ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the order, made, in effect, upon reargument; and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the petitioner.
On August 6, 2020, Franklin Bermeo allegedly was injured when he was struck by a vehicle as he was walking across an intersection with the pedestrian light in his favor near Rockaway Beach. According to the police accident report, the driver of the vehicle, Anthony Mack, was driving an e-bike. Subsequently, Bermeo sought uninsured motorist benefits under an insurance policy issued by the petitioner. The petitioner denied coverage, and Bermeo filed a demand for arbitration of his claim for uninsured motorist benefits.
The petitioner commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration, arguing that Bermeo was struck by an e-bike, which was not a motor vehicle under the terms of the policy, and thus, Bermeo was not entitled to uninsured motorist benefits. In an order dated December 6, 2021, the Supreme Court temporarily stayed arbitration and set the matter down for a framed-issue hearing to determine, among other things, whether the vehicle that struck Bermeo qualified as a motor vehicle under the terms of the policy. The framed-issue hearing was held over the course of three days. Mack was deceased as of the time of the hearing. The parties stipulated to entering the police accident report into evidence, which stated that zero motor vehicles were involved in the accident and that Bermeo was struck by a “CAMLTE” e-bike, [*2]and which did not include any license or registration information for Mack. Following the framed-issue hearing, in a judgment entered September 9, 2022, the court granted that branch of the petition which was to permanently stay arbitration. Subsequently, Bermeo moved for leave to reargue. In an order entered January 27, 2023, the court, in effect, granted reargument and, upon reargument, adhered to the prior determination. Bermeo appeals.
As the Supreme Court reviewed Bermeo’s contentions on his motion for leave to reargue, the court, in effect, granted reargument and, upon reargument, adhered to the prior determination (see Matter of Infinity Indem. Ins. Co. v Leo, 213 AD3d 936, 938). Therefore, the order entered January 27, 2023, is appealable.
“‘The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay'” (Matter of Travelers Personal Ins. Co. v Dratch, 219 AD3d 1526, 1527, quoting Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680; see Matter of Allstate Ins. Co. v Robinson, 188 AD3d 1186, 1188). “‘Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing'” (Matter of Travelers Personal Ins. Co. v Dratch, 219 AD3d at 1527, quoting Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865). “‘Where, as here, a matter is determined after a hearing, this Court’s power to review the evidence is as broad as that of the hearing court, taking into account in a close case the fact that the hearing court had the advantage of seeing the witnesses'” (Matter of Travelers Home & Mar. Ins. Co. v Miller, 220 AD3d 875, 877, quoting Matter of State Farm Mut. Auto. Ins. Co. v Rodriguez, 195 AD3d 727, 728).
Here, by introducing into evidence the police accident report that indicated, inter alia, that the vehicle Mack was driving was an e-bike and that zero motor vehicles were involved in the accident, the petitioner met its prima facie burden of providing evidence that a motor vehicle was not involved in the accident (see Matter of Government Empls. Ins. Co. v McCracken, 207 AD3d 721, 722).
In response, Bermeo failed to sufficiently rebut the petitioner’s prima facie showing (see id.). Contrary to Bermeo’s contention, he did not submit overwhelming evidence that the vehicle was, in fact, a motorcycle. Among other things, while an eyewitness testified that the vehicle involved was a motorcycle, she testified that she only observed the vehicle during the accident. She did not observe the vehicle after the accident and did not testify to seeing a license plate, engine, gas tank, or source of power for the vehicle. Further, she conceded that she could not describe the different parts of the vehicle because her focus was on Bermeo.
Thus, a review of the totality of the evidence adduced at the hearing, as well as the deference accorded to the Supreme Court’s vantage point of seeing and hearing all of the witnesses, demonstrate that the court did not err in concluding that a motor vehicle was not involved in the accident (see e.g. id.; Matter of Farmers Ins./Truck Ins. Exch. v Terzulli, 112 AD3d 628, 628; cf. Matter of Hertz Corp. v Holmes, 127 AD3d 1193, 1195).
Bermeo’s contention that the petitioner should not be allowed to disclaim uninsured motorist benefits because the petitioner already paid his medical bills pursuant to the no-fault provision of the policy was improperly raised for the first time on reargument (see FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 651, 654).
Accordingly, the Supreme Court, upon reargument, properly adhered to its prior determination granting that branch of the petition which was to permanently stay arbitration.
BARROS, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.
ENTER:Darrell M. Joseph
Clerk of the Court