SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 11, 2010. The order denied plaintiff’s motion to vacate a prior order granting defendant’s unopposed motion for summary judgment.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first party no-fault benefits, the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion to vacate a prior order granting defendant’s unopposed motion for summary judgment, since plaintiff failed to demonstrate a reasonable excuse for its failure to submit written opposition to defendant’s motion (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Accordingly, the order is affirmed.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint J.), entered October 6, 2009. The order denied plaintiff’s motion for leave to enter judgment.

ORDERED that the order is affirmed, without costs.

Plaintiff commenced this action to recover the sum of $3,854.30 in assigned first-party no-fault benefits. In April 2006, the attorneys for plaintiff and defendant entered into a “Stipulation of Settlement,” settling plaintiff’s claim for the sum of $1,387.55, which amount had to be received by plaintiff’s attorney within 30 days. The stipulation provided that, pursuant to CPLR 3215 (i) (1), defendant’s failure to comply with its terms would result in the entry of judgment in the sum of $1,387.55, plus interest. The parties also executed a “Stipulation Discontinuing Action After Settlement,” dated April 2006, which provided, among other things, that:

“This stipulation may be filed with the Clerk of the Court without further notice to either party.”

Thereafter, defendant sent plaintiff two checks, each dated September 7, 2007, totalling the sum of $1,387.55. Plaintiff’s attorney stated that he did not receive any payment within 30 days as required by the terms of the stipulation of settlement and, therefore, negotiated a second stipulation with defendant which settled the claim for the sum of $3,250. Defendant signed and returned the second stipulation to plaintiff’s attorney in October 2007. In the interim, plaintiff received defendant’s two checks totaling $1,387.55, which plaintiff deposited on September 24, 2007. After defendant failed to pay the additional amount owed pursuant to the second [*2]stipulation, plaintiff attempted to enter judgment but, since defendant had already filed the April 2006 stipulation of discontinuance, the clerk would not enter judgment. Plaintiff subsequently moved for leave to enter judgment, which motion the Civil Court denied “based upon a
review of all papers which indicate a settlement was entered into, payment was made upon it and checks were cashed without a reservation of rights.”

It is uncontroverted that plaintiff signed a stipulation of discontinuance, with prejudice, which was filed in the Civil Court prior to plaintiff’s attempt to enter judgment on the second stipulation. Since the instant action was terminated with the filing of the binding stipulation of discontinuance (see CPLR 2104), the relief requested by plaintiff was no longer available by motion in this action but, rather, plaintiff was required to commence a plenary action (see Teitelbaum Holdings v Gold, 48 NY2d 51 [1979]; Matter of Serpico, 62 AD3d 887 [2009]; Zeer v Azulay, 50 AD3d 781, 785 [2008]).

Accordingly, the order is affirmed, albeit on other grounds. We pass on no other issue.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered February 24, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied the branches of its motion for summary judgment seeking the dismissal of the first through fourth causes of action.

In support of its motion, defendant submitted, among other things, affirmed peer review reports which set forth the factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that the supplies were not medically necessary was not rebutted by plaintiff. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the branches of defendant’s motion for summary judgment seeking the dismissal of plaintiff’s first through fourth 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]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion for summary judgment seeking the dismissal of the first through fourth causes of action are granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 3, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by striking so much of the order as granted the branches of defendant’s motion for summary judgment seeking to dismiss plaintiff’s $155.84 claim for services rendered September 18, 2007 through September 27, 2007 and plaintiff’s $134.80 claim for services rendered October 2, 2007 through October 11, 2007; as so modified, the order, insofar
as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for a new determination of the aforesaid branches of defendant’s motion in accordance with the decision herein.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

We note, at the outset, that defendant denied all of the claims, except for claims in the sums of $155.84 and $134.80 for services rendered September 18, 2007 through October 11, 2007, on the ground that plaintiff’s assignor had failed to appear at any of three independent medical examinations (IMEs). The Civil Court found that defendant’s motion papers established the assignor’s failure to appear for the IMEs and granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff contends on appeal that the scheduling of the examinations was unreasonable. However, since plaintiff failed to submit sufficient evidence to raise an issue of fact as to the reasonableness of the scheduling of the IMEs, we leave undisturbed so much of the order as granted defendant summary judgment dismissing the complaint with respect to all of the claims, other than the claims for $155.84 and $134.80 (see e.g. All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). [*2]

With respect to plaintiff’s claims for $155.84 and $134.80, defendant, in its brief, in effect concedes that it is not entitled to summary judgment dismissing these claims on the ground relied upon by the Civil Court. Defendant requests that these claims be “returned to the lower court for a determination as to the merits of defendant’s summary judgment motion” based upon the grounds set forth in its motion papers. As the record indicates that the Civil Court apparently did not consider the grounds upon which defendant sought summary judgment with respect to the claims for $155.84 and $134.80, so much of the Civil Court’s order as granted the branches of defendant’s motion for summary judgment seeking to dismiss these claims is stricken, and the matter is remitted to the Civil Court for a new determination with respect to these two claims.

Rios, J.P., Weston and Golia, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered February 5, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff had established its prima facie case, that defendant had demonstrated that it had timely denied plaintiff’s claims and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is 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. KhodadadiRadiology, 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]).

Pesce, P.J., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered October 22, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is 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 and denying plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted an affidavit of its litigation representative which was sufficient to establish that the denial of claim forms, which had denied the claims at issue on the ground of lack of medical necessity, had been timely mailed in accordance with defendant’s 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., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the equipment provided to plaintiff’s assignor (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]). Contrary to plaintiff’s assertion, the fact that defendant did not annex the underlying medical records which the peer reviewer considered in formulating his opinion did not render the peer review report inadmissible (see Neomy Med., P.C. v GEICO Ins. Co., 32 Misc 3d 137[A], 2011 NY Slip Op 51532[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; 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]). Since defendant [*2]established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]), but plaintiff failed to do so.

As plaintiff’s remaining contentions are either unpreserved or lack merit (see e.g. Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed (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]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 19, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), dated October 23, 2009. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint.

In support of its motion for summary judgment, defendant submitted an affidavit of its claims representative which established neither that the denial of claim forms, which denied the claims at issue on the ground that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule, had actually been timely mailed nor that they had been timely mailed in accordance with defendant’s standard office practices and procedures so as to give rise to the presumption of mailing (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]). Thus, defendant’s motion for summary judgment should have been denied.

In view of the foregoing, we reach no other issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 19, 2011

District Court of Nassau County, First District

CV-046441-10

Fred J. Hirsh, J.

Defendant Country-Wide Insurance Company (“Country-Wide”) moves for summary judgment on the grounds the action is premature because plaintiff Brownsville Advance Medical, P.C. (“Brownsville”) failed to respond to Country-Wide’s verification demands.

This motion raises significant issues regarding an insurer’s repeated demand for verification from the same provider where the information demanded has previously been provided or where the information demanded is public record.

BACKGROUND

On March 31, 2010, Brownsville provided medical care and treatment to Alejandro Ramos (“Ramos”) for injuries sustained in a February 1, 2010 motor vehicle accident. Ramos assigned his right to receive no-fault benefits for the treatment provided on March 31, 2010 to Brownsville. Brownsville submitted the claim for treatment to Country-Wide.

Country-Wide acknowledges and admits to receipt of the claim on April 19, 2010.

Country-Wide mailed a verification request to Brownsville dated April 23, 2010. The verification request a completed NF-3 signed by the doctor “no stamps or initials with Q.16 listing of all treating providers & Q.17 listing of all owners” and “corporation with their license number, (Rev 1/04) Assignment of Benefits signed no stamps or initials and medical notes”. Country-Wide asserts Brownsville did not respond or object to this verification request.

Country-wide mailed a follow-up verification request to Brownsville dated May 24, 2010.

Country-Wide asserts Brownsville did not respond or object to the follow-up verification request.

Brownsville claims the repeated verification requests it has received from Country-Wide are unduly burdensome and designed to harass Brownsville. Brownsville asserts Country-Wide has responded to its no-fault claims by demanding identical verification for every claim it submits. Country-wide has mailed an identical verification request to Brownsville in response to at least seven separate claims. Brownsville [*2]claims it should not be required to repeatedly provide the same documentation especially since it has provided this information to Country-Wide previously.

Country-Wide moves for summary judgment asserting the claim is premature because it does not have to pay or deny the claim until Brownsville provides the demanded verification.

DISCUSSION

An insurer has 30 days from the date of receipt of a no-fault claim to pay or deny the claim. 11 NYCRR 65-3.8.

An insurer can toll or extend its time to pay or deny a no-fault claim by making a request for verification within 15 business days of receipt of the claim. Hospital for Joint Disease v. New York Central Mutual Fire Ins. Co., 44 AD3d 903 (2nd Dept. 2007); and 11 NYCRR 65-3.5(b).

If the verification requested by the insurer has not been provided within 30 days, the insurer must follow-up by telephone or mail within 10 calendar days. 11 NYCRR 65-3.6(b).

An insurer does not have to pay or deny a claim until all demanded verification has been provided. St. Barnabas Hosp. v. American Transit Ins. Co., 57 AD3d 517 (2nd Dept. 2008); and New York & Presbyterian Hosp. v. Allstate Ins. Co., 31 AD3d 512 (2nd Dept. 2006).

Verification extends an insurer’s time to pay or deny a claim by permitting the insurer to demand and obtain information needed to establish proof of claim so the insurer can properly determine whether the claim should be paid or denied. Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and 11 NYCRR 65-3.5(b).

Country-Wide demanded as part of its verification a completed NF-3. An NF-3 is the New York Motor Vehicle No-Fault Insurance Law Verification of Physician or Other Provider of Health Services claim form. See, 11 NYCRR Part 65 Appendix 13. This is the form prescribed by the no-fault regulations that all health care providers other than hospitals must submit to the insurer to make a claim for payment of no-fault benefits.

Country-Wide admits in its verification request it received Brownsville’s claim for payment of no-fault benefits, an NF-3, relating to the medical treatment provided to Ramos on March 31, 2010 on April 19, 2010. Country-Wide did not submit a copy of the NF-3 it received from Brownsville regarding its treatment of Ramos with its motion papers. However, the complaint filed with the court upon the commencement of this action contains has a copy of the assignment signed by Ramos and the NF-3 submitted by Brownsville. A review of the copy of the assignment and NF-3 on file with the court indicates Brownsville filed the required form containing all the required information in the required format.Country-Wide offers no explanation regarding any defects in the NF-3 or any reason why it needs any verification regarding this document.

The oft stated purpose of the New York State No-Fault Law is to insure prompt payment of medical claims arising from automobile accidents. Medical Society of the State of New York v. Serio, 100 NY2d 854 (2003). See, Fair Price Medical Supply Corp. v. Travelers Indemnity Co., 10 NY3d 556 (2008); and Hospital for Joint Disease v. Travelers Property Casualty Ins. Co., 9 NY3d 312 (2007); and Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, rearg. denied 90 NY2d 937 (1997). [*3]This purpose is not served when an insurer repeatedly request the same verification from the same provider, especially in the situation where the material demanded has previously been provided or is readily obtainable from easily accessible public records.

Country-Wide has repeatedly requested the same verification it demanded from Brownsville in connection with this claim even though Brownsville has provided most if not all of the information to Country-Wide in connection with other claims.

Brownsville has provided Country-Wide a copy of its application for a taxpayer identification number, the document issued by the Internal Revenue Service issuing the taxpayer identification number, a copy of Brownsville certificate of incorporation and a copy of Dr. Tapper’s license in response to discovery demands served in other actions. A provider should not have to repeatedly provide documentation it has already provided unless the insurer can establish a reasonable basis and rational need for demanding this material anew.

The primary reason for seeking verification of the licensing status of a provider and/or the professional corporation making application for payment of no-fault benefits is to determine if the provider and/or the professional corporation is eligible to obtain payment of no-fault benefits. 11 NYCRR 65-3.16(a)(12).^[FN1] Information regarding the corporate status of Brownsville and Dr. Tapper’s license are easily obtained on-line.

A check of the New York State Department of State Corporation and Business Entity publicly accessible, free, web-site data base shows that Brownsville is an active, domestic professional corporation.

A check of the New York State Department of Education Professional Licensing License Verification publicly accessible, free, web-site data base indicates Winston Anthony Tapper is a physician whose current license to practice medicine is valid through May 2012. This web site also contains Dr. Tapper’s license number, information about his education and the date he was first licensed to practice medicine in the New York.

The demand for information relating to a Mallela defense is not obtainable through verification. See, Dynamic Medical Imaging, P.C. v. State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (District Ct. Nassau Co. 2010). The no-fault regulations permit an insurer to obtain in verification”…additional verification required by the insurer to establish proof of the claim.” 11 NYCRR 65-3.5(b).

A Mallela defense relates to the claimant, not to the claim. A successful Mallela defense permits an insurer to avoid paying an otherwise valid no-fault claims because the provider is not eligible to obtain payment of no-fault benefits because the entity providing the services is owned or significantly controlled by persons who are not licensed to practice the profession for which the professional business entity was formed. State Farm Mutual Automobile Ins. Co. v. Mallela, supra; and Andrew Carothers, M.D., P.C. v. Insurance Companies Represented by Bruno, Gerbino & Soriano, LLP, 26 Misc 3d 448 (Civil Ct. Richmond Co. 2009). – Dr. Carothers was [*4]denied payment for MRI’s performed by his professional corporation because the professional corporation was operated and controlled by persons not licensed to practice medicine.

Country-Wide’s repetitive verification demands upon Brownsville are contrary to 11 NYCRR 65-3.2(b) that provides an applicant or claimant should not be treated as an adversary and verification of facts should not be requested unless the insurer has a good reason for doing so. In this case, Country-Wide offers no reason why it has repeatedly demanded identical verification from Brownsville, even though the information demanded in the verification requests has previously been provided.

An insurer cannot obtain summary judgment when a provider fails to respond or object to a repetitive verification demand when the verification demand seeks information not relevant to the claim, has previously been provided to the insurer by the claimant, the material demanded can easily be obtained from free, publicly accessible sources and seeks material that cannot be obtained through verification.

Defendant’s motion for summary judgment is denied.

SO ORDERED:

Hon. Fred J. Hirsh

District Court Judge

Dated: December 19, 2011

cc:Friedman, Harfenist, Kraut & Perlstein, LLP

Jaffe & Koumourdas

Footnotes

Footnote 1:A provider of medical services cannot obtain payment of no-fault benefits if it does not have the appropriate and required license. See, State Farm Mutual Auto Ins. Co. v. Mallela, 4 NY3d 313 (2005); and 11 NYCRR 65-3.16(a)(12).

[*1]

District Court of Suffolk County, Third District, December 19, 2011

APPEARANCES OF COUNSEL

Law Offices of Gabriel & Shapiro, LLC, Wantagh (Jason Moroff of counsel), for plaintiff. Mura & Storm, PLLC, Buffalo (Scott D. Mancuso of counsel), for defendant.

{**35 Misc 3d at 162} OPINION OF THE COURT

C. Stephen Hackeling, J.

Preferred Mutual Insurance Company (hereafter Preferred) makes an application to this court seeking either a venue transfer pursuant to CPLR 510 (3) or dismissal of the plaintiff, Scott Croce, D.C.’s (hereafter Croce) complaint pursuant to CPLR 327 (a). For the reasons hereafter stated, the application to dismiss this complaint is granted with leave to recommence same in an alternative forum subject to the provisions of CPLR 205 (a).

The Facts

In advancing its “forum non conveniens” dismissal motion, Preferred asserts that the undisputed relevant facts are that Preferred issued the subject no-fault automobile insurance policy in Buffalo, New York to a resident of Buffalo, New York. The subject accident occurred in Buffalo, New York. The injured{**35 Misc 3d at 163} party resided in Buffalo, New York, and following the accident, the injured party was treated in Buffalo, New York. The injured party was examined via an independent medical examination in Williamsville, New York (a Buffalo suburb). The plaintiff treated the injured party in Buffalo, New York. Preferred denied the bills at issue by sending denials to the plaintiff at a Buffalo, New York address, and such denials were based on the opinion of a medical doctor located in Buffalo, New York. Croce commenced this action pursuant to UDCA 404 as Preferred maintains independent insurance business agents who conduct business on its behalf within the District. Preferred does not maintain a formal business office in the District and was served with the summons care of the New York State Insurance Department at 25 Beaver Street, New York, New York.

Issues Presented

Does the Suffolk County District Court have the power to transfer or dismiss an action between two New York State residents because it may be better litigated at a city court in Buffalo, New York?

Discussion

Preferred’s application is two pronged and seeks either dismissal pursuant to CPLR 327 or a transfer of venue pursuant to CPLR 510 to Erie County, New York.^[FN*] The court will deal summarily with the CPLR 510 transfer request and deny same as it is statutorily prohibited from ordering a transfer outside its geographic jurisdiction by UDCA 306. (See Barco Auto Leasing Corp. v Wolf, 179 Misc 2d 815 [App Term, 2d Dept, 9th & 10th Dists 1999]; Personnel Career Servs. v Pizza Huts of Dutchess County, 149 Misc 2d 729 [App Term, 1st Dept 1991].) Section 101 of the CPLR expressly subordinates its general provisions to a conflicting alternative specific statute as contained in the UDCA. (See A&S Med. v ELRAC, Inc., 184 Misc 2d 257 [Civ Ct, Queens County 2000]; Neurologic Servs. v American Tr. Ins. Co., 183 Misc 2d 496 [Civ Ct, Bronx County 1999].) Even{**35 Misc 3d at 164} absent a conflict with the UDCA, section 510 contemplates transfers within a court’s geographic jurisdiction. Erie County is outside this court’s territorial jurisdiction.

Forum Non Conveniens

The request for the invocation of the doctrine of forum non conveniens (hereafter FNC) is more problematic. As identified in several legal treatises, there presently exists split authority as to whether CPLR 327 FNC is available to inferior courts of limited jurisdiction such as City Civil Court and the various District Courts. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, CCA 301, at 100; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, UDCA 202, at 463; Siegel, NY Prac § 28 [4th ed]; Siegel, Civil Court Forum non Conveniens, 55 Siegel Prac Rev 3 [1997]; 1 Carmody-Wait 2d, NY Prac § 2:64, at 112; Haig, Commercial Litigation in NY Courts 3d § 3:27 [1 West’s NY Prac Series 2010]; see also Idrobo v Martin, 2003 NY Slip Op 51387[U] [2003].)

Judge Ritholtz of New York City Civil Court has opined that the applicability of CPLR 327 to inferior courts is questionable as its purview has historically been limited to Supreme Court practice; “enabling it to refuse to entertain out-of-State actions, involving nonresidents.” (Suffolk Chiropractic Ctr. v GEICO Ins. Co., 171 Misc 2d 855, 857 [Civ Ct, Queens County 1997]; see also generally Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333 [1968].) This reasoning is consistent with the common law which existed prior to 1972.

FNC is a common-law doctrine which until 1952 allowed New York courts to abstain from entertaining personal injury cases involving nonresidents. (Bata v Bata, 304 NY 51 [1952].) As a result of the Bata decision, the Court of Appeals determined it had the authority and inclination to change the FNC common-law doctrine to allow for its utilization in contract and other cases. The one limiting prohibition to this equitable doctrine was the inflexible rule that FNC could not be invoked if a party was a New York resident. The Court of Appeals again amended and expanded the doctrine in January 1972 by opining that a party’s New York residency was not an absolute bar to FNC invocation (i.e., it was to be only one of many [*2]considerations). (Silver v Great Am. Ins. Co., 29 NY2d 356 [1972].) It is undisputed that the common law, including the Bata and Silver modifications, was enacted into statutory form in 1972 via the enactment of CPLR 327 which provides:{**35 Misc 3d at 165}

“(a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.”

CPLR 327 was intended by the Legislature to be only a codification of the Silver rule, and was confirmatory in nature of the common law and not innovative. (Siegel, NY Prac § 28 [4th ed].) The complication presented is the fact that CPLR 327 utilizes the generic word “court,” without limitation, and indicates that this court does have the authority to dismiss the subject action. The dilemma presented is how does this court reconcile this inconsistent language with the Legislature’s intention to only codify, not amend, the common law which was utilized previously only by New York’s original jurisdiction Supreme Courts.

In contrast to the line of reasoning that FNC is not available to inferior courts is the line of cases first reported in Suriano v Hosie, wherein courts have determined that FNC is available to District Courts. (59 Misc 2d 973 [Nassau Dist Ct 1969]; Roseman v McAvoy, 92 Misc 2d 1063 [Civ Ct, NY County 1978]; A&S Med. v ELRAC, Inc., 184 Misc 2d 257 [Civ Ct, Queens County 2000].) This court concurs that the Legislature did not intend to expand the common law when it enacted the 1972 codification.

The determinative fact herein is exactly what was the FNC common law in 1972? Judge Kelly in the A&S decision correctly points out that the Court of Appeals, in a one-sentence decision (decided June 1, 1972), reversed the First Department, Appellate Division (which had reversed a City Court) and did not challenge the use of FNC in sustaining a Civil County Court dismissal. (See Rafter v Newark Ins. Co., 30 NY2d 819 [1972].) While inconsistent with the pre-1972 common law, it appears that the Court of Appeals, several months prior to section 327’s statutory enactment, again modified and expanded it, much as the High Court did in its Bata (1952) and Silver (1972) decisions. All three of these common-law amendments were thereafter codified into section 327. The Legislature in enacting statutes is presumed to be acquainted with the common law. (Transit Commn. v Long Is. R.R. Co., 253 NY 345 [1930].) Statutes in derogation of the common law are strictly construed{**35 Misc 3d at 166} against change. (McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a]; see generally Bertles v Nunan, 92 NY 152 [1883]; Dollar Dry Dock Bank v Piping Rock Bldrs., 181 AD2d 709 [2d Dept 1992].) As such, the Legislature’s use of the generic word “court” in section 327 accurately codified the then existing 1972 FNC common law, which for several months had included inferior courts.

Having determined that the District Court has the discretionary authority to invoke the FNC doctrine; the court now turns to its appropriateness. The test to be applied is based in equity, is multipronged and is laid out in the Court of Appeals Bata and Silver decisions, as well [*3]as its decisions in Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense (Varig) (22 NY2d 333 [1968]); and Martin v Mieth (35 NY2d 414 [1974]). In light of the undisputed facts presented, the court can think of no case under which a FNC dismissal by an inferior court would be more appropriate. Every single contact with this insurance dispute involves residents and actions occurring in Buffalo, New York. To not invoke FNC under these circumstances would effectively vitiate its purpose and existence.

Accordingly, Croce’s complaint is dismissed subject to the six months tolling provisions of CPLR 205.

Footnotes

Footnote *: The court notes that, although “lack of personam jurisdiction” is asserted as a affirmative defense in its answer, the defendant has not moved to challenge plaintiff’s assertion of long-arm presence jurisdiction in its present application. Subject to the possibility that this defense may have been waived, this court seriously questions the existence of personam jurisdiction. (See generally Diagnostic Rehab., Medicine Serv., P.C. v Republic W. Ins. Co., 2003 NY Slip Op 51458[U] [Civ Ct, Kings County 2003]; Mingmen Acupuncture Servs. v American Tr. Ins. Co., 183 Misc 2d 270 [Civ Ct, Bronx County 1999].)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered April 29, 2010, deemed from a judgment of the same court entered August 11, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 29, 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, defendant moved for summary judgment dismissing the complaint on the ground of fraudulent procurement of the insurance policy by virtue of the assignor misrepresenting his state of residence in connection with the issuance of the insurance policy in question. The Civil Court granted defendant’s motion for summary judgment and dismissed the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The sole argument raised on appeal is whether defendant proffered admissible evidence of a fraudulently procured insurance policy. Upon our review of the record, we find that the affidavits and investigative reports annexed to defendant’s motion papers sufficiently established that the assignor, who was also the insured under the subject insurance policy, had misrepresented his state of residence. Furthermore, the evidence submitted by defendant established that this misrepresentation was material since defendant would not have issued the policy had it known that the assignor resided in the State of New York, as defendant was not licensed to insure vehicles in New York at the time of this loss, and would not have issued the subject policy to him. Thus, the assignor was ineligible to receive first-party no-fault benefits under the insurance policy in question (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; Central Radiology Servs., P.C. v Commerce Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50948[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). In opposition, plaintiff, as assignee standing in the shoes of its assignor (see New York & Presbyt. [*2]Hosp. v Country Wide Ins. Co., NY3d , 2011 NY Slip Op 07149 [2011]), failed to submit any evidence sufficient to defeat defendant’s motion for summary judgment. Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: December 16, 2011