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 (Peter Paul Sweeney, J.), entered September 8, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as denied its motion for summary judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to respond to specified discovery [*2]demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense.”

Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment 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]).

As defendant’s discovery demands were served with defendant’s answer and plaintiff did not timely object to the discovery demands, plaintiff is obligated to produce the information sought except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; Midborough Acupuncture, P.C. v State Farm Ins. Co., 21 Misc 3d 10 [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]). In the instant case, defendant cross-moved for summary judgment dismissing the complaint based upon a “staged accident” defense and, in the alternative, sought discovery from plaintiff, in part, to ascertain “whether Plaintiff’s assignor received the DME [durable medical equipment] at issue.” Defendant’s DME defense is palpably improper as this case does not involve DME. Moreover, as defendant has not shown how a doctor, who was not alleged to have been at the scene of the accident, would have relevant information regarding the staging of an accident, the deposition and discovery demands of plaintiff ordered by the Civil Court were palpably improper. To the extent the discovery demands might arguably relate to a defense of lack of medical necessity, we note that this defense was precluded, and, thus, these demands were palpably improper on this basis as well (see Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to provide responses to specified discovery demands and to produce a doctor “with relevant knowledge of the claim for a deposition . . . with regard to [defendant’s] staged accident defense” is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: April 02, 2012

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 (Sylvia G. Ash, J.), entered April 28, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 24, 2010 dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (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., [*2]17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

The appearance of a provider at a duly requested EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff does not claim to have responded in any way to the EUO request. Therefore, plaintiff’s objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; 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]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, concur.
Decision Date: April 02, 2012

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 (Kathryn E. Freed, J.), entered December 2, 2009. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend the answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

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 appeals from so much of an order as granted the branches of defendant’s motion seeking to vacate a notice of trial and leave to amend its answer, granted the branch of defendant’s motion seeking to compel plaintiff to respond to defendant’s discovery requests to the extent of directing plaintiff to provide specified documents, and denied plaintiff’s cross motion for summary judgment or, in [*2]the alternative, a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In addition, the Civil Court did not improvidently exercise its discretion in granting defendant’s application for leave to amend its answer in order to interpose the affirmative defense of fraudulent incorporation, in the absence of any showing that prejudice or surprise would result therefrom (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Tomasino v American Tobacco Co., 57 AD3d 652 [2008]; Mackenzie v Croce, 54 AD3d 825 [2008]), and since the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220 [2008]; Ingrami v Rovner, 45 AD3d 806 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432 [2007]).

Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant also established that special circumstances exist which warrant disclosure of plaintiff’s tax documents at issue (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]).

In light of the foregoing, plaintiff’s remaining contentions lack merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 02, 2012

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

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated October 5, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 an order denying its motion for summary judgment dismissing the complaint.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage in that he did not appear for scheduled independent medical examinations (IMEs). In support of its motion, defendant submitted an affidavit by an employee of National Claims Evaluations, Inc. (NCEI), a company which defendant had hired to schedule the IMEs. The affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with NCEI’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123).

The appearance of the assignor at an IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal, the order of the District Court is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 28, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

THE CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: March 20, 2012

Supreme Court, Nassau County

4399-10

Attorneys for Plaintiffs- McDonnell & Adels, PLLC, 401 Franklin Avenue, Garden City, NY 11530

and Rivkin Radler LLP, 926 RXR Plaza, Uniondale, NY 11556

Attorneys for Defendants- The Zuppa Frim, PLLC, 53 Herbert Street, Brooklyn, NY 11222

Steven M. Jaeger, J.

The following papers read on this motion: [*2]

Notice of Motion, Affirmation, and ExhibitsX

Affirmation in Opposition and ExhibitsX

Memorandum of Law on Behalf of Defendants in OppositionX

Reply Memorandum of LawX

Memorandum of LawX

Motion by plaintiff for judgment pursuant to CPLR 3211(a)(7) dismissing defendants’ second, third, fourth, fifth and sixth counterclaims as alleged in defendants’ [Second] Amended Answer and Counterclaims is granted, with prejudice as to the second, third, fifth, and sixth counterclaims, and without prejudice as to the fourth counterclaim. The first cause of action for breach of contract is severed and continued.

In 2010 plaintiff commenced this action for a declaratory judgment and to recover no-fault payments made to the defendant professional corporations. Defendants asserted six counterclaims in their amended answer. Plaintiff previously sought dismissal of five of the counterclaims, and on that motion this Court directed defendants to serve a second amended answer and counterclaims in compliance with statutory pleading requirements (Order dated August 10, 2011, annexed as Exhibit E to plaintiff’s moving papers).

Plaintiff now seeks dismissal of the same five counterclaims for consequential damages, common law fraud, violation of General Business Law ｧ349, punitive damages, and violation of Judiciary Law ｧ487, as alleged in the [Second] Amended Answer and Counterclaims. Plaintiff contends that defendants’ only sustainable cause of action is for breach of contract based upon State Farm’s allegedly improper failure to pay no-fault benefits.

3211 Dismissal Standard

On a motion to dismiss pursuant to CLR 3211, the facts as alleged must be accepted as true, the pleader must be accorded the benefit of every favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable theory (Samiento v World Yacht Inc., 10 NY3d 70, 79 [2008]; Arnav Industries, Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 303 [2001]). The criterion on a motion pursuant to CPLR 3211(a)(7) is whether the pleader has a cause of action (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Discussion

At the outset the Court notes for the record that defendants’ [Second] [*3]Amended Answer and Counterclaims is 79 pages long and contains 528 paragraphs, as compared to the Amended Answer and Counterclaims which was 172 pages long and contained 981 paragraphs. While this second amended pleading is shorter, it still suffers from “a mass of verbiage and superfluous matter” (Tankoos v Conford Realty Co., 248 AD 614 [2nd Dept 1936]). Nevertheless the Court will review the [Second] Amended Answer and Counterclaims pursuant to the dismissal standard of CPLR 3211(a)(7), to determine if defendants have a cause of action against plaintiff, other than one for breach of contract.

Fraud

The third counterclaim purports to allege a cause of action for common law fraud. Defendants allege that State Farm promised pre-accident policy holders, and by extension the defendants, that it would pay up to $50,000 per eligible injured person (EIP), that these promises were false, and that policy holders purchased insurance from State Farm in reliance upon these false promises. Post-accident misrepresentations included that State Farm would fairly adjust the EIPs’ claims, and timely pay all legitimate claims, and in reliance thereon, the defendants accepted the assignment of claims from EIP assignors who were State Farm policy holders. The post-accident representations include the alleged “predetermined” Independent Medical Examinations (“IMEs”), the alleged use of “fraud mills,” the alleged improper Peer Review Reports, alleged “sham investigations by legally unqualified investigators,” alleged improper use of Examinations Under Oath, alleged routine denial of proper claims, and alleged false and deceptive litigation practices.

A tort obligation is a duty imposed by law to avoid causing injury to others (New York University v Continental Ins. Co., 87 NY2d 308, 316 [1995]). A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389 [1987]; Yenrab, Inc v 794 Linden Realty LLC, 68 AD3d 755 [2nd Dept 2009]; Heffez v L & G General Const. Inc., 56 AD3d 526 [2nd Dept 2008]). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (Clark-Fitzpatrick, Inc. at 389). Furthermore, the allegation that a party entered into a contract while lacking the intent to perform is insufficient to state a cause of action for fraud (Dune Deck Owners Corp v Liggett, 85 AD3d 1093 [2nd Dept 2011]; Stangel v Chen, 74 AD3d 1050 [2nd Dept 2010]).

Here, both the alleged pre-accident promises and post-accident [*4]misrepresentations arise out of the State Farm’s contractual obligation to honor its policies and make no-fault payments as required by the no-fault regulations. No separate obligation or tort duty to pay no-fault claims exists. On this record defendants have no cause of action against State Farm for fraud, and accordingly dismissal of the third cause of action for common law fraud must be granted.

General Business Law ｧ349

In the fourth counterclaim defendants allege that State Farm has committed multiple violations of General Business Law ｧ349. This statute declares as unlawful “[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” (Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24 [1995]). To state a claim under this statute a pleader must allege (1) acts or practices that are “consumer oriented,” (2) that such acts or practices are misleading in a material way, and (3) that the pleader has suffered actual harm by reason of those acts (Gaidon v Guardian Life Ins Co of America, 94 NY2d 330, 344 [1999]). Conduct is “consumer oriented” if it has “a broader impact on consumers at large” and may “potentially affect similarly situated consumers” (Oswego at pp. 25-26).

Here, defendants allege that State Farm has used inaccurate and false information to improperly delay and deny claims, that such conduct is “likely to mislead a reasonable consumer in the Acupuncture PCs’ circumstances,” that consumers at large have been injured by such practices, and that such practices have caused actual harm to the Acupuncture PCs and the public in general (see [Second] Amended Answer and Counterclaims, pars. 505-510). The problem with this pleading is that defendants’ injury is indirect or derivative of that suffered by policy holders whose claims were allegedly delayed or denied, and therefore it appears that defendants lack standing to assert this ｧ349 claim.

An injury is indirect or derivative when the loss arises solely as a result of injuries sustained by another party (Blue Cross & Blue Shield of NJ Inc v Philip Morris USA Inc., 3 NY3d 200, 207 [2004]). If a pleader could avoid the derivative injury bar by merely alleging that its suit would somehow benefit the public, then the “tidal wave of litigation” guarded against in Oswego (85 NY2d at 26) “would loom ominously on the horizon” (City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616, 623 [2009]). Where, as here, the claimed injury arises wholly as a result of injury to others, and the pleader “is only secondarily damaged” (MVB Collision Inc v Progressive Ins. Co., 2010 WL 3617134 (Sup Ct, Nassau Cty, 2010)), the claimed injury is not compensable under ｧ349.

Defendants attempt to clear the standing hurdle by asserting that they are [*5]assignees of the policy holders whose claims were allegedly delayed or denied, and that as assignees, they stand in the shoes of the assignors ([Second] Amended Answer and Counterclaims, par.16). However the assignment of contractual claims does not automatically entail the right to assert tort claims arising from the contract (Banque Arabe et Internationale D’Investissement v Maryland Nat. Bank, 57 F3d 146, 151 [2d Cir 1995]; State of Ca. Public Employees’ Retirement Sys v Shearman & Sterling, 95 NY2d 427 [2000]; Fox v Hirschfeld, 157 App Div 364 [1st Dept 1913]). Assignments of rights under the no-fault law generally encompass the right of the assignee to sue for payment of the benefits provided tothe assignor. Whether such an assignment includes additional rights depends, inter alia, on the language of the assignment instrument, which has not been submitted to this Court. Under these circumstances dismissal of the fourth counterclaim for violation of General Business Law ｧ349 is granted without prejudice (see State Farm Mut. Auto. Ins Co. v Mallela, 175 F Supp 2d 401 [EDNY 2001]).

Judiciary Law ｧ487

Judiciary Law ｧ487, which governs misconduct by attorneys, provides for the recovery of treble damages from an attorney who is guilty of deceit or collusion, or an alleged chronic, extreme pattern of legal delinquency (Rock City Sound , Inc v Bashian & Farber, LLP, 74 AD3d 1168, 1172 [2nd Dept 2010], lv app dsmd 16 NY3d 826 [2011]; Izko v Sportswear Co, Inc, v Flaum, 25 AD3d 534, 537 [2nd Dept 2006]). This statutory cause of action is only applicable to attorneys and cannot extend derivative liability to a client (Yalkowsky v Century Apts. Assoc., 215 AD2d 214 [1st Dept 1995]).

Defendants’ sixth counterclaim for violation of Judiciary Law ｧ487 is based upon the allegation that State Farm’s General Counsel ratified and encouraged the submission of fraudulent affidavits in litigation involving defendants ([Second] Amended Answer and Counterclaims, par. 521). This does not suffice as a basis for a claim pursuant to Judiciary Law ｧ487 against State Farm, and the sixth counterclaim is summarily dismissed.

Consequential Damages

In the second counterclaim defendants seek consequential damages based upon “State Farm’s multiple breaches of contract” ([Second] Amended Answer and Counterclaims, par. 464). They seek damages for the loss of defendant Anikeyeva’s business, allegedly caused by the State Farm’s failure to pay no-fault benefits under its policies.

Consequential damages are recoverable for breach of contract in limited [*6]circumstances, where such damages were within the contemplation of the parties as the probable result of a breach at the time of, or prior to, contracting (Bi-Economy Market, Inc v Harleysville Ins Co of New York, 10 NY3d 187, 192 [2008], citing Kenford Co v County of Erie, 73 NY2d 312, 319 [1989]). Defendants were not yet on the scene at the time that the subject insurance policies were issued by State Farm to its policy holders. Therefore, there could have been no contemplation of defendants’ consequential damages at the time the policies were issued. In short, defendants simply have no cause of action for consequential damages based upon the allegations of State Farm’s multiple breaches of contract. Accordingly dismissal of the second counterclaim for consequential damages must be granted.

Punitive Damages

The fifth counterclaim purports to allege a cause of action for punitive damages, based upon State Farm’s “far reaching pattern of false, deceptive and fraudulent conduct,” which “has harmed and will continue to harm, the public at large” ([Second Amended Answer and Counterclaims, par. 515).

New York does not recognize an independent cause of action for punitive damages (Rocanova v. Equitable Life Assur. Society. of U.S., 83 NY2d 603, 616, [1994]; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612 [2nd Dept 2012]). Punitive damages are not recoverable for an ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights (Rocanova at 613). Punitive damages are available where the conduct constituting or associated with the breach of contract is (1) actionable as an independent tort for which compensatory damages are ordinarily available, and (2) sufficiently egregious to warrant the additional imposition of exemplary damages (Rocanova at 613).

On this record defendants do not have an independent tort claim against State Farm, and for this reason there is no need for the Court to address the egregiousness of the alleged conduct by State Farm. Dismissal of the fifth counterclaim for punitive damages must be granted.

It is so Ordered.

Dated: March 13, 2012

__________________________________________

STEVEN M. JAEGER, A.J.S.C.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 15, 2010. The order, insofar as appealed from, granted the branch of plaintiff’s motion for summary judgment seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment upon so much of the fifth cause of action as sought to recover upon two claim forms, each in the sum of $309.42, and denied the branch of defendant’s cross motion seeking summary judgment with respect to said portion of the fifth cause of action, is deemed from a judgment of the same court entered August 20, 2010 awarding plaintiff the principal sum of $618.84 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

ORDERED that the judgment is affirmed, without costs; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary [*2]judgment dismissing plaintiff’s first through third and sixth through tenth causes of action, and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted; as so modified, the order, insofar as appealed from and insofar as reviewed on direct appeal, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order entered July 15, 2010 as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon so much of the fifth cause of action as seeks to recover upon two claim forms, each in the sum of $309.42, and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered awarding plaintiff the principal sum of $618.84 on that portion of its fifth cause of action.

In the July 15, 2010 order, the Civil Court found, among other things, that, with respect to the first through third, sixth, seventh, ninth and tenth causes of action, plaintiff had established its prima facie entitlement to judgment as a matter of law, that defendant had established timely and proper denial of claim forms and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. In support of the branches of its cross motion seeking to dismiss these causes of action, defendant submitted, among other things, affirmed independent medical examination (IME) reports, each of which set forth a factual basis and medical rationale for the doctor’s determinations that there was a lack of medical necessity for the services rendered. As defendant’s showing that the services were not medically necessary was unrebutted by plaintiff and plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these causes of action, the branches of defendant’s cross motion seeking summary judgment dismissing the first through third, sixth, seventh, ninth and tenth causes of action are 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]).

Contrary to the Civil Court’s determination, we find that defendant’s cross motion demonstrated its entitlement to summary judgment upon the eighth cause of action. The record establishes that defendant timely mailed (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]) the denial of claim forms pertaining to the claims at issue in the eighth cause of action and that these claims were denied on the ground of lack of medical necessity based upon affirmed IME reports. As plaintiff failed to rebut defendant’s prima facie showing, defendant was entitled to summary judgment dismissing plaintiff’s eighth cause of action (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U]).

With respect to the portion of the fifth cause of action seeking to recover upon two claim forms, each in the sum of $309.42, we find that plaintiff established its prima facie case (see [*3]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]). Since defendant did not address these two $309.42 claim forms in its motion papers submitted to the Civil Court, defendant failed to rebut plaintiff’s prima facie showing, and the court properly awarded plaintiff summary judgment upon these claim forms.

With respect to the portion of the fifth cause of action which seeks to recover upon the $608.40 claim form for services rendered to the assignor from June 1, 2006 through June 22, 2006, the affidavit of plaintiff’s billing manager stated that he had personally mailed the claim to defendant on June 15, 2006. However, we note that plaintiff’s claim form is dated June 22, 2006 and seeks to recover for services rendered to the assignor after June 15, 2006. In opposition to plaintiff’s motion and in support of the branch of its cross motion seeking summary judgment dismissing the fifth cause of action insofar as it pertained to this claim, the affidavit of defendant’s examiner contained a detailed recitation of defendant’s office practices and procedures pertaining to its receipt, filing and/or storage of claim forms, which was sufficient to show that defendant had never received the $608.40 claim form from plaintiff. Plaintiff did not oppose this branch of defendant’s cross motion or submit further papers in support of its motion for summary judgment upon this claim form. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint as to the $608.40 claim form is granted.

Defendant’s contentions with respect to the fourth cause of action lack merit, and we do not disturb the Civil Court’s determination that defendant was not entitled to summary judgment dismissing this cause of action.

Accordingly, the judgment is affirmed and the order, insofar as appealed from and insofar as reviewed on direct appeal, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first through third and sixth through tenth causes of action and so much of the fifth cause of action as seeks to recover upon a claim form in the sum of $608.40 are granted.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012

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 (Jodi Orlow, J.), entered May 17, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment is denied. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see 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]), the affirmed letter of medical necessity submitted by plaintiff’s assignor’s treating physician was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; cf. Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment of the Civil Court is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion for summary judgment is denied.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012

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 (Anna Culley, J.), entered June 14, 2010, deemed from a judgment of the same court entered June 24, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 14, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by both defendant and plaintiff established that plaintiff’s assignor was not an eligible injured person under the policy in issue (Insurance Department Regulations [11 NYCRR] § 65-1.1 [d]) since she did not “regularly reside[]” with the insured at the time of the accident (Insurance Department Regulations [11 NYCRR] § 65-1.1 [g]). Defendant further established that it had timely denied plaintiff’s claim (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]) on this ground. In any [*2]event, even if defendant’s denial of claim form had been defective or untimely, the defense of lack of coverage is not subject to preclusion (Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d & 11th Jud Dists 2006]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]).

Moreover, it is undisputed that plaintiff submitted the claim at issue to defendant more than 45 days after the dates the services were rendered (Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff’s contention, defendant’s timely denial of claim form adequately advised plaintiff of the basis for the denials. The denial of claim form further advised plaintiff that the late submission of the claim would be excused if plaintiff provided a reasonable justification for the lateness (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). We find that the reason proffered by plaintiff was insufficient.

Accordingly, the judgment of the Civil Court is affirmed.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012

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 (Lisa S. Ottley, J.), entered February 8, 2010, deemed from a judgment of the same court entered April 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 8, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, the affirmed peer review report set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the supplies at issue. While plaintiff asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was [*2]inadmissible, the record indicates that the signature was placed on the report by the doctor who had performed the peer review (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]). Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. Thus, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly 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]; 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]).

Accordingly, the judgment of the Civil Court is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: March 06, 2012