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 (Carolyn E. Wade, J.), entered July 8, 2009. The order denied the branch of plaintiff’s motion seeking leave to enter a default judgment and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c) is treated as an application for leave to appeal from that portion of the order, and leave to appeal
is granted (see CCA 1702 [c]); and it is further,

ORDERED that the order is affirmed, without costs.

In February 2006, plaintiff commenced this action to recover assigned first-party no-fault benefits in the sum of $1,181.63. Defendant failed to timely appear and answer. In January 2009, plaintiff moved for, among other things, leave to enter a default judgment. By order entered July 8, 2009, the Civil Court denied that branch of plaintiff’s motion and, sua sponte, dismissed the complaint pursuant to CPLR 3215 (c).

When a plaintiff fails to commence proceedings for the entry of a default judgment within one year of the default, the court shall dismiss the action as abandoned unless sufficient cause is shown why the action should not be dismissed (CPLR 3215 [c]; CCA 1402). If the plaintiff demonstrates a reasonable excuse for the delay in timely moving for leave to enter a default judgment and a meritorious cause of action, the complaint will not be dismissed as abandoned (see County of Nassau v Chmela, 45 AD3d 722 [2007]).

In this case, plaintiff admittedly failed to move for leave to enter a default judgment within one year of the default and did not proffer any reasonable excuse for its delay. Further, contrary to plaintiff’s contention, the Civil Court was under no
obligation to notify plaintiff that it intended to “dismiss the complaint as abandoned . . . upon its own initiative” (CPLR 3215 [c]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 25, 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, affirmed peer review reports which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the medical supplies at issue. Defendant’s showing that the supplies were not medically necessary was unrebutted by plaintiff.

In light of the foregoing and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it issued timely denials,” a finding which plaintiff does not dispute, defendant’s cross motion for summary judgment dismissing the complaint should have been 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]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,078.48.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that the sole issue to be litigated would be whether the services rendered to plaintiff’s assignor were medically necessary. At a nonjury trial, the Civil Court granted plaintiff’s motion to preclude the testimony of defendant’s witness, the psychologist who had prepared the peer review report upon which defendant’s claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48.

In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying (see Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept 2007]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Accordingly, the judgment is reversed and the matter is remitted for a new trial.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 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 (Rudolph E. Greco, Jr., J.), entered July 21, 2009. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3215 (c).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, an answer was filed in November 2003. In February 2004, plaintiff moved for leave to enter a default judgment, arguing that “[t]here has been no Answer interposed to date, nor has an extension of time to answer been requested or granted.” By order entered March 2, 2004, plaintiff’s motion was granted, on default. In April 2006, defendant moved to preclude plaintiff from offering evidence at trial due to its failure to respond to defendant’s discovery demands. By a so-ordered stipulation dated April 11, 2006, the parties agreed to a discovery schedule. On the same date, plaintiff served defendant with notice of entry of the March 2, 2004 default order. Thereafter, defendant moved to, among other things, vacate the default order and dismiss the complaint as abandoned pursuant to CPLR 3215 (c). By order entered July 21, 2009, the Civil Court granted the branch of defendant’s motion seeking to vacate the default judgment and denied the branch of defendant’s motion seeking to dismiss the complaint. This appeal by defendant ensued.

Defendant argues that since plaintiff failed to take proceedings for the entry of judgment within one year after the March 2, 2004 default order, it is entitled to the dismissal of the complaint pursuant to CPLR 3215 (c). However, defendant’s conduct in engaging in discovery, as evidenced by the April 11, 2006 stipulation, acted as a waiver of any right it may have had to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Sutter v Rosenbaum, 166 AD2d 644, 645 [1990]; Myers v Slutsky, 139 AD2d 709, 710 [1988]). Consequently, the Civil Court did not improvidently exercise its discretion in denying the branch of defendant’s motion seeking to dismiss the complaint as abandoned.
Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

[*1]

Supreme Court, Appellate Term, Second Department, July 8, 2011

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant. Amos Weinberg, Great Neck, for respondents.

{**32 Misc 3d at 64} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiffs’ motion seeking an order, pursuant to CPLR 3212 (g), deeming certain facts established for all purposes in the action is denied.

In this action by providers to recover assigned first-party no-fault benefits, the Civil Court denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had failed to establish their prima facie case. On appeal, this court affirmed the order, stating that, while plaintiffs had established their prima facie entitlement to summary judgment, defendant had demonstrated that there was a triable issue of fact (A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51859[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiffs then moved in the Civil Court for, among other things, an order, pursuant to CPLR 3212 (g), deeming the facts necessary to demonstrate plaintiffs’ prima facie case established for all purposes in the action, arguing that they were entitled to such relief in light of this court’s prior determination that plaintiffs had established their prima facie case but that defendant’s papers were sufficient to raise a triable issue of fact. The Civil Court granted this branch of plaintiffs’ motion, and defendant appeals.

An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court’s finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing{**32 Misc 3d at 65} party to raise a triable issue of fact, just as a court’s “denial of a motion [*2]for summary judgment establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY Prac § 287, at 487 [5th ed]).

In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff’s case. It follows, then, that there is nothing in this court’s order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs’ case. As a result, the Civil Court improperly relied upon this court’s prior order in limiting the issues for trial pursuant to CPLR 3212 (g).

Accordingly, so much of the order as granted the branch of the motion seeking relief pursuant to CPLR 3212 (g) is reversed, and said branch of the motion is denied.

Steinhardt, J.P., Golia and Rios, JJ., concur.

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 Marie Jimenez, J.), entered September 10, 2009. The order, insofar as appealed from, denied, as premature, plaintiff’s cross motion for summary judgment and granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar and the branch of defendant’s motion seeking to dismiss the complaint due to plaintiff’s failure to comply with discovery demands or to compel such discovery, to the extent of directing plaintiff to respond to defendant’s discovery demands.

ORDERED that the order, insofar as appealed from, is affirmed, with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered December 11, 2008, denied a motion by plaintiff for summary judgment as premature and granted a cross motion by defendant to the extent of compelling plaintiff to comply with defendant’s discovery demands within 30 days of service of the order with notice of entry. Although defendant served the order with notice of entry on January 5, 2009, two days later, on January 7, 2009, plaintiff filed a notice of trial and certificate of readiness, which it mailed to defendant on January 27, 2009. Defendant timely moved, among other things, to vacate the notice of trial and strike the action from the trial calendar, to compel plaintiff to meaningfully respond to its discovery demands, and to produce plaintiff’s purported owners for an examination before trial. Plaintiff cross-moved for summary judgment. By order entered September 10, 2009, the Civil Court denied, as premature, plaintiff’s cross motion for summary judgment and granted defendant’s motion to the extent of vacating the notice of trial and striking the matter from the trial calendar, and directing plaintiff to provide defendant with “written discovery including answering verified written interrogatories and combined demands (such as tax returns and management/lease agreements).” The order further directed plaintiff to produce its owners for an examination before trial within 45 days after service of the written discovery. This appeal by plaintiff ensued, and we affirm.

It is undisputed that the discovery demanded was not provided by plaintiff. Because the [*2]notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar (see Allstate Social Work & Psychological Svcs., PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). As discovery was outstanding, the Civil Court also properly denied, as premature, plaintiff’s cross motion for summary judgment. Moreover, since the record indicates that plaintiff made no attempt in the Civil Court to challenge the propriety of defendant’s discovery demands (see CPLR 3103, 3122 [a]; 3133 [a]), plaintiff must comply with the Civil Court’s direction that it provide responses to defendant’s discovery demands.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 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 (Dianne A. Lebedeff, J.), entered June 5, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

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) (5) on the ground that the action was barred by the statute of limitations. The Civil Court denied the motion.

A first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim (see Insurance Law § 5106 [a]; Insurance Department Regulations [11 NYCRR] § 65-3.8; Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d & 11th Jud Dists 2008]; Boulevard Multispec Med., P.C. v MVAIC, 19 Misc 3d 138[A], 2008 NY Slip Op 50872[U] [App Term, 2d & 11th Jud Dists 2008]). The six-year statute of limitations for contract actions is applicable to this cause of action (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]). As defendant has established receipt of the claim form in question on August 29, 2002, it correctly argues that plaintiff’s cause of action accrued on September 28, 2002, and this action, which was commenced on October 20, 2008, is untimely.

Contrary to the holding of the Civil Court, defendant’s denial of claim form, dated February 5, 2003, did not postpone the payment due date (see Kings Highway Diagnostic Imaging, P.C., 19 Misc 3d at 70). Moreover, defendant was not required, as part of its prima facie showing on its motion, to demonstrate that the payment due date was not tolled by a verification request (see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiff did not submit any evidence that defendant timely and properly requested verification, and therefore failed to raise a triable issue of fact as to whether defendant’s time to pay or deny the claim had been tolled. Finally, there is no merit to plaintiff’s contention that defendant should be collaterally estopped from asserting a statute of limitations defense. [*2]

Accordingly, defendant’s motion to dismiss the complaint should have been granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 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 (Anna Culley, J.), entered February 24, 2009, deemed from a judgment of the same court entered June 2, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 24, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,406.89.

ORDERED that the judgment is affirmed, without costs.

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

Contrary to defendant’s contention, the affidavit of Dr. Parker was sufficient to establish that the documents annexed to plaintiff’s motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]), and defendant conceded receipt of the claims in question (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]). As plaintiff also established that its claims had not been timely paid or denied, plaintiff made a prima facie showing of its entitlement to judgment as a matter of law (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; cf. Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Defendant did not raise a triable issue of fact in opposition to plaintiff’s motion or establish its entitlement to summary judgment on its cross motion. In her affidavit, defendant’s litigation manager stated that she had begun working for defendant after the claim denial forms at issue had allegedly been mailed by defendant. As defendant did not establish actual mailing of [*2]the claim denial forms or defendant’s standard office practice and procedure for the mailing of the claim denial forms during the pertinent time period, defendant failed to show that its claim denial forms were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Points of Health Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant therefore failed to establish that its proferred defense in opposition to plaintiff’s motion and in support of its cross motion was not precluded. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2011

[*1]

Supreme Court, Appellate Term, Second Department, July 7, 2011

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Gullo & Associates, LLP, Brooklyn (Cristina Carollo of counsel), for respondent.

{**2011 N.Y. Slip Op. at 1} OPINION OF THE COURT

Memorandum.

Ordered that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court entered January 8, 2010 as granted defendant’s motion for summary judgment to the extent of dismissing plaintiff’s claim for services rendered on October 30, 2007 and November 13, 2007, in the total sum of $1,026.51. A judgment dismissing that claim was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff argues that the “affidavit” of its psychologist, submitted in opposition to defendant’s motion for summary judgment, was sufficient to raise a triable issue of fact. However, the “affidavit,” which contained a notary public’s stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public (cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). While there is no specific form of oath required in New York (see General Construction Law § 36), an oath is to be “calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [or her] religious or ethical beliefs” (CPLR 2309 [b]). We find that inasmuch as the omissions in plaintiff’s submission constituted more than a mere defect in form, plaintiff’s “affidavit” failed to meet the requirements of CPLR 2309 (b).

Accordingly, the judgment is affirmed.

Steinhardt, J.P., Golia and Rios, JJ., concur.{**2011 N.Y. Slip Op. at 2}

[*1]

Civil Court of the City of New York, Kings County, July 7, 2011

APPEARANCES OF COUNSEL

Law Office of Teresa M. Spina, Woodbury (Dominick Dale of counsel), for defendant. Gary Tsirelman, P.C., Brooklyn (Wesley Mead of counsel), for plaintiff.

{**32 Misc 3d at 716} OPINION OF THE COURT

Genine D. Edwards, J.

In the instant actions for no-fault benefits, bench trials were held on April 13, 2011 and April 14, 2011. After establishing how the bills were created and given to Israel & Israel for [*2]mailing, plaintiff’s witness, Vladmir Grinsberg, could not set forth how the bills were mailed. Mr. Grinsberg instead offered that the denial of claims indicated defendant received the bills. Plaintiff’s counsel contended that the defendant’s denial of claim forms were admissible as party admissions for the limited purpose of proving the bills were mailed and received. Defendant objected and argued that plaintiff has to lay a foundation for the admission of the denial of claim forms. Hence, a directed verdict should be rendered in defendant’s favor in all three actions.

This court requested post-trial memoranda regarding the admissibility of the defendant’s denial of claim forms as party admissions for the limited purpose of establishing that plaintiff mailed its bills to the defendant.

After due deliberation of the evidence adduced at trial, as opposed to documents annexed to a summary judgment motion, this court adheres to the Appellate Term’s ruling that denial of claim forms shall be admitted into evidence only upon the laying of a business record foundation. (Bath Med. Supply, Inc. v Utica Mut. Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51030[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d Dept 2007].) Besides testifying that he received the denial of claim forms, Mr. Grinsberg failed to proffer any evidence to authenticate the denial of claim forms.

Accordingly, defendant’s motions for directed verdict in each of the three actions are granted because plaintiff failed to shoulder its prima facie burden.