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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, March 5, 2014

APPEARANCES OF COUNSEL

Law Office of Jeff Henle, P.C., New York City (Jeff Henley of counsel), for appellant.

Jaffe & Koumourdas, LLP, New York City (Jean H. Kang of counsel), for respondent.

Ordered that, on the court’s own motion, the notice of appeal from the amended decision dated September 15, 2010 is deemed a premature notice of appeal from so much of the judgment entered January 26, 2012 as awarded statutory prejudgment interest from August 7, 2008 (see CPLR 5520 [c]); and it is further ordered that the judgment, insofar as appealed from, is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits in 2001, based upon an accident that had occurred in 1998. It is undisputed that for the next seven years, no action was taken by either party. On August 7, 2008, plaintiff filed a notice of trial. A nonjury trial was subsequently held, after which the Civil Court found in favor of plaintiff. However,{**43 Misc 3d at 89} based on plaintiff’s delay of the case, the Civil Court held that statutory prejudgment interest would accumulate from the date plaintiff filed his notice of trial, on August 7, 2008. Plaintiff filed a notice of appeal from that decision, limited to the Civil Court’s decision to award interest from August 7, 2008. A judgment was subsequently entered, including interest commencing as of August 7, 2008 at a simple, not compound, rate. We deem the appeal to have been taken from so much of the judgment as awarded interest from August 7, 2008.

[1] First, contrary to plaintiff’s argument on appeal, defendant did prove the timely mailing of the denial. Where, as here, a provider does not commence the action within 30 days of receipt of the denial, the Insurance Department Regulations provide that statutory prejudgment interest (see Insurance Law § 5106 [a]) begins to accumulate when the action is commenced (see Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]), “unless the applicant unreasonably delays the . . . court proceeding” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [d] [emphasis added]). In this case, plaintiff took no action for seven years. Plaintiff’s argument that defendant should be required to pay interest for that period because defendant could have attempted to move the case forward lacks merit. It is plaintiff who brought this action and plaintiff should not be rewarded for his years of inaction by receiving a windfall of interest (see Arzu v NYC Tr. Auth., 35 Misc 3d 210 [Civ Ct, Kings County 2012]; compare Igor Shtarkman Neurologist, P.C. v Allstate Ins. Co., 191 Misc 2d 76 [Nassau Dist Ct 2002]). Thus, in our opinion, the Civil Court properly held that the interest in this case should be awarded from August 7, 2008.

[2] On appeal, plaintiff also contends that interest should have been calculated at a compound, not simple, rate. However, the decision from which plaintiff appealed did not specify whether the interest awarded should be simple or compound, and the award of simple, rather than compound, interest is found only in the judgment, which was entered subsequent to the filing of the notice of appeal. Moreover, the notice of appeal limited the appeal to the court’s determination regarding the date on which interest would begin to accumulate. Therefore, the issue of whether the interest should be calculated at a simple or compound rate is not reviewable on this appeal. As this issue was not litigated below and as there has been no prior judicial determination of this question, plaintiff, if he be so advised, may move, pursuant to CPLR 5019 (a), to seek a correction of{**43 Misc 3d at 90} the interest in the judgment (see Kiker v Nassau County, 85 NY2d 879, 881 [1995]; see also former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Ops Gen Counsel NY Ins Dept No. 02-10-22 [Oct. 2002]).

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

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

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 (Richard G. Latin, J.), entered September 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, defendant’s motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

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’s misrepresenting the state in which the vehicle at issue was garaged. Plaintiff separately moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s motion.

The record indicates that plaintiff established its prima facie entitlement to summary judgment (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]) and that defendant failed to demonstrate that it had timely denied plaintiff’s claim. With respect to defendant’s motion for summary judgment, although defendant contends that, in connection with the issuance of the insurance policy at issue, plaintiff’s assignor had misrepresented the state where the insured vehicle was garaged, defendant is precluded from asserting that defense in support of its motion and in opposition to plaintiff’s motion as it failed to establish that it had timely denied plaintiff’s claim on that ground (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011] cf. 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]).

Accordingly, the order is reversed, plaintiff’s motion is granted, defendant’s motion is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder. [*2]

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Reginald A. Boddie, J.), entered August 16, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for an examination under oath (EUO).

In support of its motion, defendant was required, but failed, to demonstrate that its initial and follow-up requests for EUOs of plaintiff had been timely mailed (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]), as the record is devoid of any reference to the dates on which defendant had received plaintiff’s claim forms. Consequently, defendant failed to demonstrate that it had tolled its time to pay or deny the claims, and, thus, that it is not precluded from raising its proffered defense that plaintiff had failed to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997] Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion (see NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011] Westchester Med. Ctr., 60 AD3d 1045).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Richard G. Latin, J.), entered July 17, 2012. The order granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

In this action to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on August 5, 2009. In August of 2010, the case was marked off the trial calendar, and in September of 2011, defendant moved to dismiss the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 on the ground that plaintiff had abandoned the case by failing to move to restore it to the trial calender within one year after it was stricken. Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126, on the ground that plaintiff had failed to provide requested disclosure. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14.

Contrary to defendant’s assertion, the Civil Court rule which governs actions stricken from the calendar (Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14) has no provision for dismissing a complaint as abandoned (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454, 456 [2007]). Thus, the Civil Court erred in dismissing the complaint on this ground.

Defendant moved, in the alternative, to dismiss the complaint pursuant to CPLR 3126. Since the Civil Court did not address this branch of defendant’s motion, the matter is remitted to the Civil Court for a determination thereof.

Accordingly, the order is reversed, the branch of defendant’s motion seeking dismissal of the complaint pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3126.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Genine D. Edwards, J.), entered June 11, 2012. The order denied defendant’s motion to vacate a judgment and for leave to renew and reargue its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that, among other things, plaintiff’s assignor had breached a condition of the policy by failing to appear for scheduled independent medical examinations. By order entered January 25, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that an affidavit submitted by defendant was inadmissible since the affiant’s signature was not notarized. A judgment awarding plaintiff the principal sum of $5,880.51 was subsequently entered pursuant to the order. Defendant thereafter moved to vacate the judgment and for leave to renew and reargue its cross motion and its opposition to plaintiff’s motion, and resubmitted the affidavit in properly sworn form. By order entered June 11, 2012, the Civil Court denied defendant’s motion, and we affirm.

While the Civil Court determined that the submission of the notarized affidavit
did not constitute new evidence sufficient to support a motion for leave to renew,
“CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” (Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971, 972 [2012] see also Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008]). “The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification’ for failing to present it on the prior motion (CPLR 2221 [e] [3])” (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 391). In the present case, we leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking leave to renew its cross motion and its opposition to plaintiff’s motion, as defendant failed to set forth a reasonable justification for its initial failure to submit a properly sworn affidavit (see CPLR 2221 [e] [3] Singh v Mohamed, 54 AD3d 933 [2008]). We note that the branch of defendant’s motion seeking leave to reargue its cross motion and its opposition to plaintiff’s motion was untimely (see CPLR 2221 [*2][d] [3]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Robin Kelly Sheares, J.), entered June 21, 2012. The order granted defendant’s motion to dismiss the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the court lacked personal jurisdiction over defendant. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company. In opposition to the motion, plaintiff’s attorney submitted an affirmation wherein he stated, in a conclusory manner, that defendant may have an agent which operates in New York and asserted that discovery is needed to determine that issue. By order entered June 21, 2012, the Civil Court granted defendant’s motion to dismiss the complaint.

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court’s exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant’s motion papers demonstrated that it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff’s cause of action, so as to bring it within the Civil Court’s long-arm jurisdiction. In its opposition papers, plaintiff failed to rebut defendant’s showing. Instead, plaintiff argued that discovery was necessary to determine whether there was proper jurisdiction. However, plaintiff failed to establish that facts essential to justify opposition may exist but are not available to it, thereby warranting discovery (see CPLR 3211 [d] Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008] Roldan v Dexter Folder Co., 178 AD2d 589 [1991] Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant’s motion to dismiss the complaint was properly granted. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order, insofar as appealed from, upon reargument and renewal, adhered to a prior determination granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied 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 on the ground that the action was premature since plaintiff had failed to provide requested documentary verification. By order dated February 29, 2012, the District Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from so much of an order dated June 4, 2012 as, upon reargument and renewal, adhered to the prior determination.

Defendant established, through the affidavit of its no-fault litigation examiner, that it had first received plaintiff’s hospital claim form on May 9, 2011. Defendant further indicated that it had received copies of the same hospital bill on May 25 and July 18, 2011. Defendant also demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]) on May 29, 2011 and June 29, 2011, respectively, and that plaintiff had not responded to the verification requests. Plaintiff, which asserted that defendant had received the claim form on July 18, 2011, failed to rebut defendant’s showing of its receipt of an identical claim on May 9, 2011, or establish that it had responded to defendant’s verification requests. Contrary to plaintiff’s contention, the 30-day period in which to pay or deny a claim did not run anew as the result of plaintiff’s resubmission of the claim (see New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005] Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]). Consequently, the District Court should have dismissed the complaint as premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 [*2]AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

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

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

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

Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]) its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity. The sworn peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services provided to plaintiff’s assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). However, in opposition to defendant’s motion, plaintiff submitted a sworn letter of medical necessity by its treating chiropractor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, at which plaintiff’s witness was the sole witness. Plaintiff attempted to move into evidence certain documents, including an NF-10 denial of claim
form and a mailing log. The court, however, refused to admit those documents and, after trial, dismissed the complaint on the ground that plaintiff had failed to establish a prima facie case.

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007] Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In such a case, a plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received. Consequently, plaintiff’s attempt to use the denial to prove the submission of the claim form was improperly denied. As plaintiff proved that defendant had not paid the claim and as defendant consented to the admission into evidence of plaintiff’s claim form, judgment should have been awarded to plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014