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 December 20, 2011. The order held in abeyance plaintiff’s motion for summary judgment and defendant’s motion for summary judgment dismissing the complaint, pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

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 moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court held both motions in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was a triable issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010] cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976] see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). We find that, in the circumstances, defendant’s failure to submit certificates of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is affirmed.

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

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (James E. D’Auguste, J.), entered March 4, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (James E. D’Auguste, J.), entered March 4, 2013, insofar as appealed from, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted in toto. The Clerk is directed to enter judgment accordingly.

Defendant-insurer demonstrated its entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting the affidavit of its no-fault litigation examiner demonstrating that the notices scheduling the assignor’s independent medical examinations (IMEs) were timely and properly mailed, as well as the sworn affidavits of the scheduled examining physician and her employee that the assignor failed to appear at the scheduled IMEs (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424 [2013] see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: February 27, 2014

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Gullo & Associates, LLC, Brooklyn, N.Y. (Cristina Carollo of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), dated July 10, 2012, as denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Generally, a party opposing a motion for summary judgment need only “raise a triable issue of fact with respect to the . . . theory . . . that is the subject of the moving party’s prima facie showing” (Stukas v Streiter, 83 AD3d 18, 24 [2011]). Here, in light of the limited basis of the plaintiff’s motion for summary judgment on the complaint, which was premised solely on the defendant’s alleged failure to timely pay or deny the no-fault claim within 30 days of receipt of proof of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]), “the defendant’s only burden in opposition . . . was to raise a triable issue of fact regarding its timely . . . denial of the [plaintiff’s] claim” (Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905 [2011]; see Viviane Etienne Med. Care, P.C., v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082-1083 [2011]). In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the defendant satisfied its burden by raising a triable issue of fact as to whether it did in fact mail a proper NF-10 denial of claim form to the plaintiff only 22 days after its receipt of the claim verification that it had previously requested (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984 [2012]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659 [2008]).

We do not reach the parties’ remaining contentions regarding the merits of the defendant’s cross motion, since the defendant has not appealed from so much of the order as denied its cross motion. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.

—[*1] Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondents.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered December 20, 2011, which granted the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on the first cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on its first cause of action is denied.

The plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz (hereinafter the plaintiff), made a prima facie showing of entitlement to judgment as a matter of law on to the first cause of action by submitting evidence that the prescribed statutory billing forms were mailed to and received by the defendant, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]).

However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF-10 within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191-1192 [2011]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]).

Contrary to the plaintiff’s contention, the fact that the defendant attached to its denial [*2]of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician’s signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance (see CPLR 2106; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued (cf. 11 NYCRR 65-3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 832-833 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]).

Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the first cause of action. Rivera, J.P., Chambers, Hall and Miller, JJ., concur.

District Court of Nassau County, First District

CV-038125-12

Law Offices of Gabriel & Shapiro, LLC, Attorneys for Plaintiff, 3361 Park Avenue, Suite 1000, Wantagh, New York,11793, 516-308-7373; Wilson, Bave, Conboy, Cozza & Couzens, P.C, Two William Street, White Plains, New York, 10601, 941-686-9010

Michael A. Ciaffa, J.

The following papers have been considered by the Court

on this motion: submitted January 30, 2014

_________________________________________________________ _______________

Papers Numbered

_____________________________________________________________ ___________

Notice of Motion, Affirmation & Exhibits Annexed………………………1 – 2

Affirmation in Opposition…………………………………………………………..3

Reply Affirmation……………………………………………………………………..4

In this action for no-fault benefits, defendant moves for an order dismissing plaintiff’s complaint, or granting defendant summary judgment, based upon a ruling by a federal judge dismissing a related personal injury claim by plaintiff’s assignor. Conflicting appellate term decisions complicate this Court’s resolution of the motion.

According to proof submitted with defendant’s motion, plaintiff’s assignor, Barbara Harvey, alleged in a federal court personal injury action that a vehicle owned by Ryder Truck Rental, Inc. (“Ryder”) ran over her left leg on January 1, 2011. Ryder moved for summary judgment on the ground that Ms. Harvey “cannot establish with any admissible evidence that [Ryder] owned the vehicle involved in [Ms. Harvey’s] accident.”Magistrate Judge Gold granted Ryder’s motion and dismissed the action. In so ruling, he noted the existence of a police report containing hearsay evidence linking the Ryder truck to the accident. The police report identified a woman who was able to provide the licence plate number of the Ryder truck. However, that woman apparently obtained her information from an unidentified male witness. [*2]

Ryder’s federal court motion included an affidavit from the vehicle’s lessee, claiming that the truck was parked and locked outside the lessee’s business throughout the date of the accident. In the face of such proof, and in the absence of submission of contrary “admissible evidence” raising “a genuine issue of material fact,” Ms. Harvey’s allegations were deemed “insufficient” to defeat Ryder’s Rule 56 motion. Harvey v John Doe and Ryder Truck Rental, Inc., 11-CV-5185, Memorandum & Order dated August 12, 2012 (EDNY).

The defendant in this no-fault case, Old Republic Insurance Company (“Old Republic”), insured Ryder respecting no-fault claims. It maintains that the federal court’s ruling collaterally estops plaintiff from seeking no-fault benefits for services provided to Ms. Harvey after the accident. Its argument proceeds on the premise that the federal court “has already ruled as a matter of law that the subject Ryder truck was not involved in the alleged January 1, 2011 automobile accident.”

Contrary to defendant’s contention, the federal court never ruled that the subject Ryder truck “was not involved” in Ms. Harvey’s accident. Rather, in a narrowly drawn decision applying federal procedural law, the court concluded that plaintiff lacked sufficient “admissible evidence” to rebut allegations made in Ryder’s Rule 56 motion. Consequently, without definitively determining whether Ms. Harvey had been struck by the Ryder truck, the court summarily dismissed her personal injury claim against Ryder under Fed.R.Civ.P. 56(a).

Nevertheless, the federal court’s decision granting summary judgment to Ryder constitutes a determination on the merits of Ms. Harvey’s claim. See Siegel, NY Practice, § 287. Merits-based summary judgment determinations, like the decision made in the federal court case, will often collaterally estop a party from pursuing related claims made in a subsequent lawsuit “based on the same foundation facts.” See, e.g. Eidelberg v. Zellermayer, 5 AD2d 658, 663 (1st Dept 1958), affd. 6 NY2d 815 (1959).

Upon closer examination, defendant’s collateral estoppel motion cannot be decided easily under these general formulations. As Judge Katherine Levine reiterated in Psychology YM, PC v Travelers Property Cas. Ins. Co., 2011 NY Slip Op 51744 (Civ Ct Kings Co.), “[t]he equitable doctrine of collateral estoppel is grounded in the facts and realities of particular litigation, rather than rigid rules.” Id., quoting Buechel v Bain, 97 NY2d 295, 303 (2001).

Psychology YM, like this case, involved a provider who had taken a no-fault assignment from a woman who was allegedly injured in an auto accident. The defendant insurer, Travelers, moved for summary judgment on grounds of collateral estoppel, based upon an earlier ruling in a trial between a different provider and Travelers. In the other action, the trial judge granted a directed verdict to defendant based upon witness testimony which established, to the trial judge’s satisfaction, that the claimant’s injuries did not arise as a result of a motor vehicle accident. Notwithstanding that verdict, Judge Levine concluded that the prior finding did not preclude plaintiff from taking its no-fault claim to trial. After expressing “grave doubts” whether any privity exists between the medical provider plaintiffs in the two actions, she noted that “the instant plaintiff had no [*3]opportunity, much less a full and fair opportunity, to appear and defend itself” in the other action. Judge Levine accordingly concluded that the plaintiff “should not be deprived of its right to litigate all issues in the instant matter, including mounting a vigorous defense to defendant’s contention that the assignee was not involved in a covered accident.”

The facts at bar are somewhat distinguishable. In Psychology YM, the two actions involved different providers who were each successors to different assigned no-fault claims from their common assignor. Here, the prior action at issue was brought by plaintiff’s assignor, herself. Nevertheless, Judge Levine’s decision sets forth a sound conceptual framework for analyzing defendant’s collateral estoppel claim, under well settled Court of Appeals precedents.

As a starting point, the Court’s decision in Psychology YM observes that collateral estoppel generally precludes the relitigation of an issue which was “actually and necessarily previously decided in a prior proceeding” against “those in privity” with a party, “regardless of whether the tribunals or causes of action are the same.” Id. (citations omitted). However, under applicable Court of Appeals precedent, “[c]ollateral estoppel is an elastic doctrine’ and the fundamental inquiry’ must be whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties and the conservation of resources.” Id., quoting Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 152 (1988). Toward that end, “a court must analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate.” Id. quoting Buechel v Bain, supra, 97 NY2d at 304-5.

Furthermore, in order for collateral estoppel to apply in the context of an assignor-assignee relationship, the proponent of collateral estoppel must demonstrate that privity “must have arisen after the event out of which the estoppel arises.” Id., quoting Gramatan Home Investors Corp v Lopez, 46 NY2d 481, 486 (1979)(“Gramatan“). Under this formulation of the Court’s “privity” doctrine, where an assignee’s succession to the rights of its assignor takes place “prior to the institution of suit against the assignor,” the assignee will not be bound by a judgment rendered in the other lawsuit. Id., quoting Gramatan.

Both before and after the decision in Psychology YM, appellate courts have applied a similar analytical framework to collateral estoppel claims by no-fault insurers. In cases where no-fault benefits are assigned before the commencement of litigation involving the health provider’s assignor, and no attempt is made to name or serve the provider in the other litigation, appellate courts in both the First and Second Department have squarely rejected arguments that the outcome of the other case should be deemed [*4]binding upon the provider. See, e.g. Ideal Med. Supply v Mercury Cas. Ins. Co., 39 Misc 3d 15 (App Term 1st Dept, 2013); Magic Recovery Med. & Surg. Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 (App Term 2d Dept, 2010).

In Ideal Med. Supply, for example, a medical provider’s assignor was named a party to a prior declaratory judgment action which “resulted in a declaration that defendant [insurer] was entitled to deny all no-fault claims arising from injuries allegedly sustained by plaintiff’s assignor.” Following entry of that declaratory judgment, the insurer moved for summary judgment dismissing a plaintiff medical provider’s no-fault claim on grounds of collateral estoppel. The Appellate Term affirmed an order denying the motion. Its decision explained: “Since the plaintiff medical provider was not a party to the declaratory judgment action it is not bound by the Supreme Court’s determination, as it did not have a full and fair opportunity to contest the issues in that proceeding.” 39 Misc 3d at 16, citing Gilberg v Barbieri, 53 NY2d 285, 291 (1981). Furthermore, “[a]lthough plaintiff’s assignor was a named party in the prior action, plaintiff cannot be deemed to be in privity with its assignor, since the declaratory judgment action was commenced after the assignment.” Id., citing Gramatan.

Similarly, Magic Recovery involved assigned claims for no-fault benefits by a medical supply company which had provided medical equipment to its assignors following two automobile collisions. Nearly two years after plaintiff had submitted its no-fault claims, defendant obtained declaratory judgments, on default, against plaintiff’s assignors, upon “proof that the incidents were staged to defraud defendant.” 27 Misc 3d at 68. Notwithstanding the entry of these default judgments against plaintiff’s assignors, a majority of the Appellate Term, Second Department, denied the insurer’s motion for summary judgment on grounds of collateral estoppel.

Over the dissent of Justice Golia, the majority explained: “Plaintiff herein was neither named nor served in the declaratory judgment actions nor, at the time, was it in privity with someone who was, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in those proceedings. Accordingly, the judgments do not collaterally estop plaintiff from recovering in this action.” 27 Misc 3d at 69, citing inter alia Gramatan.

In contrast to these rulings, in at least one recent decision the Appellate Term, Second Department, dismissed a medical provider’s claim for no-fault benefits based on a verdict rendered in a lawsuit by plaintiff’s assignor. Triboro Quality Med. Supply, Inc v State Farm Mut-Auto Inc. Co., 2012 NY Slip Op 51289 (App Term, 2d Dept). The jury’s verdict in that lawsuit “determined that the vehicle of defendant’s insured never made contact’ with plaintiff’s assignor.” According to the Appellate Term’s decision, the issue decided by the jury in the earlier personal injury action was “identical” to the issue in the [*5]no-fault case of whether the assignor’s injuries arose “out of an insured incident.” Thus, the earlier determination demonstrated that plaintiff “was ineligible to receive reimbursement of no-fault benefits because the assignor’s injuries did not result from an insured incident.”

The decision in Triboro cannot be readily reconciled with the decisions in Magic Recovery and Ideal Med. Supply. In the latter cases, the appellate courts’ decisions conclude that the provider and its assignor were not in sufficient “privity” with each other, and that the provider had not been afforded a full and fair opportunity to contest the issue presented in the prior action. However, in Triboro, the court assumes sufficient privity between the provider and its assignor by virtue of the assignment. The decision in Triboro also includes an implicit finding that the provider failed to meet its “burden of establishing the absence of a full and fair opportunity to litigate” whether the insured vehicle made contact with its assignor.

Viewed realistically, Triboro may signal an inclination to follow the views expressed by Justice Golia in his dissent in Magic Recovery . In Justice Golia’s opinion, concepts of privity, as applied in Court of Appeals decisions (e.g. Gramatan), have little relevance to no-fault claims. 27 Misc 3d at 72-3. Furthermore, given the statutory and regulatory scheme closely tying the rights of a person injured in an accident to the rights of a provider seeking payment for medical services pursuant to an assignment from that person, Justice Golia contended that “the medical provider and the eligible injured person are so inextricably connected to each other and to the creation of the claim at issue, that the actions of one must be referable to the legal position of the other.” 27 Misc 3d at 75.

Since the decision in Triboro, however, the Appellate Term, Second Department has continued to cite and follow Magic Recovery without citing or mentioning its contrary Triboro ruling. See, e.g. Smooth Dental, PLLC v Preferred Mutual Ins. Co., 37 Misc 3d 67 (App Term 2d Dept, 2012). On the other hand, Triboro has not been cited by any court. And while Justice Golia’s dissent in Magic Recovery was referenced in the concurring opinion of Justice Schoenfeld in Ideal Med. Supply, that concurring opinion concluded that the court was “compelled to adhere to the rule set forth in Gramatan without a signal to the contrary from a higher appellate authority.” 39 Misc 3d at 17.

In these circumstances, the decision in Triboro, considered together with Justice Golia’s dissent in Magic Recovery, certainly warrant careful consideration. However, absent clarification from the Appellate Term, Second Department, the majority opinion in Magic Recovery still controls this Court’s analysis. On balance, based upon this Court’s reading of the leading Court of Appeals decisions, and the careful analytical framework outlined by Judge Levine in Psychology YM, PC v Travelers Prop. Cas. Ins. Co., this Court concludes that plaintiff’s claim in this case ought to be tried on the merits.

Notwithstanding the federal court decision dismissing the assignor’s personal [*6]injury claim against Ryder Truck Rental, this Court accordingly holds that plaintiff is not collaterally estopped by that ruling from pursuing its independent no-fault claim against the defendant insurer, Old Republic. In light of the Court of Appeals’ decision in Gramatan Home Investors Corp v Lopez, supra, the plaintiff provider in a no-fault case should not be deemed in “privity” with its assignor. Furthermore, as Justice Schoenfeld notes his concurring opinion in Ideal Med. Supply v Mercury Cas. Ins. Co., supra, “[c]onsiderations of due process prohibit binding a party to the result of an action in which that party has not been given an opportunity to be heard.” The Court therefore declines to follow Triboro, and instead adheres to the contrary rulings in Magic Recovery and Ideal Med. Supply.

Defendant’s motion is accordingly DENIED.

So Ordered:

District Court Judge

Dated: February 18, 2014

cc:Wilson, Bave, Conboy, Cozza & Couzens, PC

Law Offices of Gabriel & Shapiro, LLC

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 14, 2014

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant. Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

{**43 Misc 3d at 50} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits from an out-of-state insurer for medical services plaintiff had provided to its assignor as a result of injuries sustained in an automobile accident that occurred in New York. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending, among other things, that it had not been properly served with process and that the court lacked jurisdiction over it. Plaintiff opposed the cross motion. The Civil Court denied the motion and cross motion. Thereafter, defendant moved for leave to renew and reargue its prior cross motion, contending, among other things, that an out-of-state affidavit by its corporate officer, which had been submitted in support of the cross motion for summary judgment, was in compliance with CPLR 2309 (c), and that the court should have considered the facts alleged therein, which established that the court lacked jurisdiction over defendant. Plaintiff opposed the motion, contending, among other things, that the affidavit was inadmissible and that, in any event, had it been considered, it would not have changed the court’s prior determination denying{**43 Misc 3d at 51} summary judgment to defendant. The Civil Court granted defendant’s motion for leave to renew and reargue, and, upon renewal and reargument, granted defendant’s cross motion for summary judgment dismissing the complaint, albeit on non-jurisdictional grounds.

At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001; Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2013] Fredette v Town of Southampton, 95 AD3d 940 [2012] Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.

Turning to the merits, we note that the record is devoid of any indication as to how or where service of process upon defendant was made. Nevertheless, defendant asserts that, however service was effectuated, there was no jurisdictional basis therefor since, as an out-of-state insurance company, jurisdiction could not have been obtained over it by virtue of service [*2]upon the New York State Superintendent of Insurance pursuant to Insurance Law § 1212 or § 1213.

In support of its cross motion, defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 [1986]).

As previously indicated, the record is devoid as to how or where service of process was made. We note that, for the same{**43 Misc 3d at 52} reasons that jurisdiction could not be obtained pursuant to Insurance Law § 1213, it could not be obtained under the long-arm statute (CCA 404), since the requirements of each statute are similar (see e.g. Chase Manhattan Bank v AXA Reins. UK, 300 AD2d 16 [2002] Cavaliere v New Jersey Ins. Underwriting Assn., 236 AD2d 502 [1997] American Ind. Ins. v Heights Chiropractic Care, P.C., 12 Misc 3d 228 [Sup Ct, NY County 2006]). This is especially true here, where defendant established through the affidavit of its corporate officer that there was no transaction of business in the State of New York, let alone New York City. We further note that the mere unilateral act of an automobile insurer’s insured of driving into New York State, without more, is insufficient to permit a New York court to exercise long-arm jurisdiction over the out-of-state insurer (see Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005] Franklin v Catawba Ins. Co., 291 AD2d 371 [2002] Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]).

The burden of proving jurisdiction is on the party asserting it and, in the face of defendant’s contentions raised in its cross motion, plaintiff was obligated to come forth with definitive evidentiary facts to support jurisdiction over the out-of-state insurer (see Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002] Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [1988] Lamarr v Klein, 35 AD2d 248 [1970]); however, it failed to do so. Thus, jurisdiction was never acquired over defendant.

Plaintiff’s remaining contentions are found to be without merit. Accordingly, the order of the Civil Court is affirmed, albeit on grounds other than those stated by the Civil Court.

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, Kings County (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, denied, as untimely, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

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 “rejected as untimely” defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5). As it is undisputed by the parties that defendant’s cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant’s cross motion.

Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 11, 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, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014