[*1]

District Court of Nassau County, Second District, March 8, 2011

APPEARANCES OF COUNSEL

Randall B. Smith, P.C., Melville, for plaintiff. Michael Andre Lynton, defendant pro se.

{**31 Misc 3d at 806} OPINION OF THE COURT

Michael A. Ciaffa, J.

When a court is presented with a default judgment application, it is tempting to simply grant it and move on to other pressing matters. However, the rule of law, as I understand it, demands more. The court’s duty is not “ministerial.” (See e.g. McGee v Dunn, 75 AD3d 624, 624 [2d Dept 2010].) If subject matter jurisdiction is lacking, the court should “refuse to proceed further and [should] dismiss the action.” (See Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997], quoting Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324 [1889].) No matter how meritorious a claim may be, the court in such a case would have no power to grant judgment upon it. Likewise, a court may grant a default judgment by law only if the moving party’s pleadings and proof establish one or more “viable” causes of action. (See McGee v Dunn, 75 AD3d at 624.) [*2]

The instant case puts these principles to a test. On multiple points, the plaintiff’s motion, while unopposed, presents facts and circumstances that raise a series of challenging issues. Although the end result of the court’s analysis is to sustain jurisdiction, that conclusion requires extended discussion. And in the end, deficiencies in plaintiff’s pleading and proof result in the denial of the motion, without prejudice to renewal. These issues are discussed, below, in turn.

Plaintiff, Utica Mutual Insurance Company, moves for a default judgment against defendant, Michael Andre Lynton, based upon Mr. Lynton’s failure to answer the complaint following service of process pursuant to CPLR 308 (2). The complaint proceeds on the premise that plaintiff “is subrogated to all rights of RAMONA ESTEVEZ as against the Defendant arising out of the claimed occurrence.” The subject “occurrence” was a motor vehicle accident between a vehicle operated by Ms. Estevez and a second vehicle owned and operated by Mr. Lynton. According to plaintiff’s papers, it made basic no-fault payments “to or on behalf of” Ms. Estevez, totalling $15,197.22. It also paid Ms. Estevez $6,000 in settlement of her claim for supplementary uninsured motorist benefits.

Monetary claims brought in this court are ordinarily limited to cases “where the amount sought to be recovered . . .{**31 Misc 3d at 807} does not exceed $15,000.” (UDCA 202.) However, “[w]here several causes of action are asserted in the complaint, and each of them would be within the jurisdiction of the court if sued upon separately, the court shall have jurisdiction of the action.” (UDCA 211.)

Although the latter statute has long been a part of the law governing proceedings in this court, its constitutionality remains open to question. In Mandel v Kent (70 AD2d 903, 903 [2d Dept 1979]), the Appellate Division held that the County Court’s jurisdictional limit applied “to the entire complaint rather than each cause of action.” It did so based on its reading of article VI, § 11 of the NY Constitution, which provides that the County Court’s jurisdiction “shall extend not to ’causes of action’ but only to ‘actions’ where the amount sought to be recovered is beneath a certain amount.” (See Westbury Wholesale Produce Co. v Maine Maid Inn, 186 Misc 2d 911, 914 [Nassau Dist Ct 2000] [discussing Mandel].)

In Westbury Wholesale Produce Co. v Maine Maid Inn (supra) Nassau District Court Judge Kenneth Gartner carefully considered whether to apply Mandel‘s logic to cases brought under the Uniform District Court Act. In a comprehensive, well-reasoned opinion, he concluded that the Appellate Division, Second Department, “would not extend the Mandel holding to District Court—an extension which would require the Appellate Division to of necessity declare UDCA 211 . . . unconstitutional as in contravention of . . . the New York State Constitution.” (186 Misc 2d at 916.)

Since Judge Gartner’s decision was handed down more than a decade ago, not a single published decision has cited Mandel. Nor have any court decisions questioned the ruling made by Judge Gartner in Westbury Wholesale Produce Co., respecting the [*3]continued applicability of UDCA 211 to District Court proceedings. Accordingly, the court concludes that Mandel does not nullify UDCA 211, and therefore turns to the question of whether plaintiff’s complaint properly pleads and presents “several causes of action,” each of which are within the court’s jurisdictional limits. (UDCA 211.)

The complaint, in this case, separately asserts two causes of action. The first cause of action seeks judgment holding defendant liable for $15,000, based upon plaintiff’s payment of basic no-fault benefits. The second cause of action seeks judgment holding defendant liable for an additional $6,000, based upon its settlement of Ms. Estevez’s supplementary uninsured motorist claim for pain and suffering.{**31 Misc 3d at 808}

Although plaintiff’s papers admit that plaintiff voluntarily reduced its claim for repayment of basic no-fault benefits to $15,000 “to comply with the jurisdiction of this Court,” that reduction begs the question of whether the court has jurisdiction to consider claims totaling $21,000 in the aggregate. Notwithstanding defendant’s default in answering the complaint, this court is empowered to consider plaintiff’s motion only if the claims fall within the ambit of UDCA 211, and on that point, plaintiff’s motion raises a second difficult and complex threshold issue.

At first blush, the assertion of separate “causes of action” in the complaint brings the case squarely within the literal language of UDCA 211. Each “cause of action” seeks damages of $15,000 or less ($15,000 under the first cause of action and $6,000 under the second cause of action).

However, decisions of other courts make plain that a lower court’s jurisdictional limits cannot be circumvented by the simple expedient of splitting a claim into separately stated “causes of action.” The Civil Court’s decision in Kemper v Transamerica Ins. Co. (61 Misc 2d 7 [Civ Ct, NY County 1969]) is illustrative.

In the Kemper case, plaintiff’s complaint asserted four “causes of action” against an insurer, arising from a fire loss. Four categories of damages were sought, each under a different policy provision. Each “cause of action,” on its face, sought damages within the jurisdictional limits of the Civil Court. Nevertheless, the total damages sought by plaintiff, arising from “a single fire,” exceeded the court’s monetary limit.

The Civil Court (Stecher, J.) concluded, on these facts, that the complaint asserted only a single “cause of action.” In holding that it lacked jurisdiction as a result, the Court acknowledged that the issue was “not a matter free from difficulty.” (61 Misc 2d at 8.) As explained in the decision, the words “cause of action” could have different meanings in different contexts. Quoting from a Court of Appeals decision involving a statutory pleading rule requiring that “each cause of action must be separate and numbered” (Payne v New York Susquehanna & W. R.R. Co., 201 NY 436, 440 [1911]), the Civil Court adopted the following definition for the purpose of assessing its jurisdiction: “If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which [*4]involves that right, the plaintiff has stated but a single cause of action.” (61 Misc 2d at 8, quoting Payne, 201 NY at 440.){**31 Misc 3d at 809}

Applying this definition, the Civil Court concluded that the complaint raised only one cause of action:

“In the case under consideration the primary right is to be paid under the contract for the loss allegedly sustained in a single fire; and the defendant’s wrong is the failure to make that payment. There can be little doubt that various obligations of payment assumed under a single written contract accruing at the same time constitute but a single cause of action (Wolf v. Wolf, 22 A D 2d 678; 5 Williston, Contracts [rev. ed.], § 1291). It is thus apparent that the plaintiff’s claim . . . although stated in what appeared to be four separate causes of action are in fact one cause of action which exceeds the jurisdictional limitation on this court.” (61 Misc 2d at 8-9.)

The instant case involves similar, but not identical, factual circumstances. Plaintiff’s claims, although separately stated in two causes of action, each involve “one wrong done by the defendant,” namely, negligent operation of a motor vehicle by defendant, causing a collision that injured plaintiff’s insured. As a result, plaintiff’s insured applied for, and received, insurance benefits under the supplementary uninsured motorist and basic no-fault portions of her insurance policy. Under the provisions of that policy, plaintiff obtained subrogation rights which it now asserts in this action.

Just like in Kemper, it appears that plaintiff’s claim, although set forth in two separate “causes of action,” may be viewed as stating “but one case of action which exceeds the jurisdictional limit” for claims made in this court. (Kemper, 61 Misc 2d at 9.) If so viewed, the court would lack the power to grant the requested relief.

Notably, in Kemper, the Civil Court was able to transfer the action directly to the Supreme Court, pursuant to article VI, § 19 (f) of the NY Constitution. However, this court lacks similar authority. (Compare NY Const, art VI, § 19 [i].) As a consequence, if the claims in this case are found to exceed the court’s jurisdictional limits, the court would have no choice but to dismiss the proceeding. (See Fry v Village of Tarrytown, 89 NY2d at 718, citing Robinson v Oceanic Steam Nav. Co., 112 NY at 324.)

Ironically, if the action were to be dismissed, and then refiled in the Supreme Court, that court could then transfer the case back to the District Court, as allowed by NY Constitution, article{**31 Misc 3d at 810} VI, § 19 and CPLR 325 (d). In that event, this court would be empowered, under CPLR 325 (d), to determine the claims without regard to otherwise [*5]applicable monetary limits.

Should plaintiff have its claims bounced back and forth, like this, to obtain determination of its claims against defendant? I think not. Although the jurisdictional limits of UDCA 202 must be respected, the language of UDCA is broad enough to encompass the subject claims.

As recognized in Kemper, the phrase “cause of action” can have different meanings in different contexts. No hard and fast definition has been applied by our state’s courts. Although allegations emanating from “a single occurrence or transaction” often have been deemed to be part of one cause of action, “distinct causes of action” just as certainly may arise from a single transaction or occurrence. (See 1 NY Jur 2d, Actions § 40.) Indeed, it appears well settled that “[w]here a single wrongful act causes injury to both the person and property of another, the party wronged has, and can separately sue upon, distinct causes of action.” (1 NY Jur 2d, Actions § 57; see also 103 NY Jur 2d Torts § 3 [“A single tortious act which causes damage to a person and to property gives rise to separate causes of action”].) “Similarly, a single wrongful act affecting different interests . . . may give rise to a separate cause of action in favor of the owner of each such interest.” (1 NY Jur 2d, Actions § 57.)

Not surprisingly, “conflicting decisions in different jurisdictions” have sometimes confounded our state’s courts in determining whether one or more causes of action are being advanced. (See Reilly v Sicilian Asphalt Paving Co., 170 NY 40, 43, 43-45 [1902].) But more recent decisions draw a clear distinction between an injured person’s cause of action for pain and suffering, on the one hand, and an insurer’s related cause of action for recoupment of payments for extended economic loss. (See Record v Royal Globe Ins. Co., 83 AD2d 154 [2d Dept 1981].) The issue in Record v Royal Globe was whether an insured’s release of a claim for personal injuries impaired the insurer’s subrogation rights. While the decision did not address issues of jurisdiction, the court’s analysis hinged upon its recognition that a subrogated claim for “economic loss” (i.e. payments for lost earnings and medical expenses) was very different from a “noneconomic” claim for pain and suffering. Since these claims were considered to be separate and distinct, the Court concluded that the release by Royal Globe’s insured of{**31 Misc 3d at 811} her noneconomic claims for pain and suffering had not impaired the insurer’s subrogation rights respecting economic loss.

Viewing the claims in this case in a similar manner, it is apparent that the complaint does, indeed, state separate and distinct causes of action. Although both claims are asserted by the same party, under provisions of the same insurance policy, the first cause of action, for basic no-fault benefits, involves “economic losses” (e.g. medical expenses), whereas the second cause of action, for supplementary uninsured motorist benefits, involves payments for the insured’s pain and suffering. [*6]

Accordingly, the court concludes, on balance, that it has jurisdiction over plaintiff’s claims. Since the complaint can be read as properly asserting two causes of action, each of which is within this court’s jurisdiction (see UDCA 211), it will proceed to determine the merits of plaintiff’s default judgment application.

Plaintiff’s motion includes proof of service of the summons and complaint upon defendant, proof of his default, and proof of the facts constituting plaintiff’s claims. (See CPLR 3215 [f].) Nevertheless, before a judgment by default can be granted, the court must be provided with sufficient facts to establish that the plaintiff possesses legally viable causes of action. (See e.g. McGee v Dunn, supra; Beaton v Transit Facility Corp., 14 AD3d 637 [2d Dept 2005].)

With respect to the first cause of action, the complaint, as amplified by plaintiff’s moving affidavits, includes sufficient allegations that defendant was not a “covered person” under no-fault, since he lacked insurance for his vehicle on the date of the accident. Such allegations are “an essential element of an insurer’s right to recoup first-party benefits” in a subrogation action. (See Country-Wide Ins. Co. v 3-M Prod. Sales, 96 AD2d 569, 569 [2d Dept 1983].)

However, an equally essential element of the cause of action is an allegation that plaintiff’s insured failed to commence a lawsuit, of her own, seeking damages for personal injuries arising from the accident. (See Country-Wide Ins. Co. v 3-M Production Sales, supra; see also Insurance Law § 5104 [b].) If such an action has been brought, the insurer’s remedies, by law, would be limited to its lien rights against any recovery obtained by verdict or settlement of that action. (Insurance Law § 5104 [b].)

On the other hand, if the insured failed to commence such an action within two years after accrual of her claim, then, and{**31 Misc 3d at 812} only then, would the insurer have “a cause of action for the amount of first party benefits paid or payable against any person who may be liable to the covered person [i.e. its insured] for [her] personal injuries.” (Insurance Law § 5104 [b].) Although the facts of this case involve the filing of a lawsuit by the insurer more than two years from the date of the accident, plaintiff’s papers are silent as to whether its insured did or did not file her own lawsuit against Mr. Lynton.

In the absence of allegations addressing the issue, the court will not assume, from such silence, that plaintiff’s first cause of action was properly brought under Insurance Law § 5104 (b). Consequently, plaintiff’s request for judgment by default on the first cause of action is denied, without prejudice to resubmission upon additional proof respecting whether its insured did or did not commence her own personal injury action which might overlap with plaintiff’s claim for first-party no-fault benefits in this subrogation lawsuit. [*7]

Plaintiff’s allegations and proof respecting its second cause of action suffer from a different defect. The latter claim seeks recovery of supplementary uninsured motorist benefits that plaintiff paid to its insured in settlement of her claim for pain and suffering. Although the “serious injury” requirements of Insurance Law § 5104 (a) do not expressly preclude claims for pain and suffering by a covered person against a noncovered person, this case does not present such a direct claim for pain and suffering. Rather, it involves a claim by an insurer arising from its payment of supplementary uninsured motorist benefits to Ms. Estevez for a “non-economic loss,” pursuant to Insurance Law § 3420 (f) (2) and the Insurance Superintendent’s Regulations (11 NYCRR 60-2.3 [f]). Under applicable case law holdings, Ms. Estevez could not have properly obtained payment of uninsured motorist benefits for her pain and suffering without proof of serious injury. (See Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196 [2007]; see also Meegan v Progressive Ins. Co., 43 AD3d 182, 184-186 [4th Dept 2007].)

Should plaintiff be able to sue the defendant to recoup supplementary uninsured motorist payments without proof that its insured, in fact, sustained a serious injury? In the absence of case law holding otherwise, the court is not prepared to presuppose such a result. While it can be argued that the insurer is simply standing in the insured’s shoes, the law as written expressly gives the insurer only a limited right to pursue a subrogation claim against a noncovered person, as authorized{**31 Misc 3d at 813} by Insurance Law § 5104 (b), for basic first-party no-fault benefits, and to the extent an insurer acquires additional subrogation rights by paying supplementary uninsured motorist benefits pursuant to Insurance Law § 3420 (f), such payments are properly made only in cases involving serious injuries. Consequently, an insurer suing a noncovered person upon such a subrogated claim for supplementary uninsured motorist benefits should properly be required to plead and prove the serious injury in order to obtain a judgment against the defendant on the latter cause of action.

In the instant case, notwithstanding the complaint’s conclusory statement that plaintiff’s insured “was caused to sustain personal injuries,” the complaint includes no factual allegations which might satisfy the requirements of Insurance Law § 5102 (d), defining the sort of “serious injuries” which could form the basis for meeting the statutory definition. Moreover, the medical records submitted with plaintiff’s motion do not suffice under the circumstances, since no effort is made to use the records to demonstrate how the injuries and treatments brought the case within the statutory definition of a serious injury. Absent proof, by party affidavit (see CPLR 3215 [f]), that the personal injury claim at issue was “serious” enough to satisfy the No-Fault Law’s threshold, the court cannot conclude that the plaintiff has the right, by law, to recover its payment to its insured under the subrogation theory asserted.

Accordingly, where, as here, an insurer neither properly pleads, nor proves by [*8]party affidavit, that its insured suffered a true “serious injury” that justified payment of supplementary uninsured motorist benefits for pain and suffering, it is not entitled, upon a default, to obtain a judgment on the claim merely because the complaint includes a conclusory sentence alleging that plaintiff’s insured suffered undefined injuries in the accident. Here, too, that failure of proof requires denial of the motion without prejudice.

For the foregoing reasons, the court concludes that it has jurisdiction to determine claims by plaintiff that exceed $15,000 in the aggregate. However, due to deficiencies in plaintiff’s pleading and proof, the court must deny plaintiff’s motion, without prejudice to renewal.

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

Litchfield Cavo LLP, New York, N.Y. (Mark A. Everett of counsel), for respondent.

In an action to recover no-fault medical payments, the plaintiff, St. Vincent’s Hospital & Medical Center, as assignee of Tula Huillca, appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered April 23, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint on the ground that the claim was untimely.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ ” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004], quoting General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). However, a timely denial of a no-fault insurance medical claim alone does not avoid precluding an insurer from disclaiming or denying liability where the denial is factually insufficient, conclusory, vague, or otherwise involves a defense which has no merit as a matter of law (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]).

The plaintiff, St. Vincent’s Hospital & Medical Center, as assignee of Tula Huillca, demonstrated its prima facie entitlement to judgment as a matter of law. While the defendant insurer timely issued two denials of claim within 30 days of its receipt of the completed hospital facility forms (NYS form N-F 5), those denials of claim, which incorrectly stated the amount of the bill and the amount in dispute, and incorrectly listed Tula Huillca as the applicant for benefits instead of the plaintiff, were fatally defective (see St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996-997 [2009]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565). In opposition, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary [*2]judgment on the complaint, and denied the defendant’s cross motion for summary judgment dismissing the complaint. Dillon, J.P., Dickerson, Hall and Roman, JJ., concur.

Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, entered April 23, 2010, to strike Point I of the appellant’s reply brief on the ground, inter alia, that it improperly raises issues for the first time on appeal. Cross motion by the appellant to strike lines 11 through 19 of page 3 of the respondent’s brief on the ground that those lines refer to matter dehors the record. By decision and order on motion of this Court dated December 6, 2010, the motion and cross motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and cross motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the motion is granted and Point I of the appellant’s reply brief is deemed stricken and has not been considered in the determination of the appeal; and it is further,

Ordered that the cross motion is denied. Dillon, J.P., Dickerson, Hall and Roman, 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 (Noach Dear, J.), entered June 3, 2009. The order denied plaintiff’s 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, defendant opposed plaintiff’s motion for summary judgment, arguing that it had timely denied plaintiff’s claims on the ground of lack of medical necessity based upon a peer review report. The Civil Court denied plaintiff’s motion. This appeal by plaintiff ensued.

Plaintiff established that defendant did not pay plaintiff’s claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant’s denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff’s papers. Moreover, plaintiff’s affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant’s denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant’s paper’s submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the [*2]
order denying plaintiff’s motion for summary judgment is affirmed, albeit on a different ground.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 03, 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, Richmond County (Mary Kim Dollard, J.), entered December 17, 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 for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant’s motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. “If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner” (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant’s motion to dismiss the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 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 (Diane A. Lebedeff, J.), entered October 29, 2009, deemed from a judgment of the same court entered November 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,335.

ORDERED that the judgment is reversed, without costs, the order entered October 29, 2009 is vacated, 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 plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant submitted an affidavit of an employee of Crossland Medical Services, P.C. (Crossland), the entity which scheduled the IMEs involved herein on behalf of defendant. The affidavit established that the IME scheduling letters had been mailed in accordance with Crossland’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 [*2]Jud Dists 2007]). In addition, an affidavit executed by defendant’s litigation examiner demonstrated that the denial of claim forms, which had denied the claims based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted affirmations from its examining physicians and affidavits from its examining chiropractors, who stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as plaintiff submitted only a reply affirmation from its counsel, which affirmation failed to raise a triable issue of fact, defendant’s cross motion for summary judgment dismissing the complaint should have been granted. In light of the foregoing, we need not reach the parties’ remaining contentions.

Accordingly, the judgment is reversed, the order entered October 29, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: March 02, 2011

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

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

In an action to recover assigned first-party no-fault benefits for medical services rendered, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered July 14, 2010, as denied that branch of their motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs payable to the plaintiff New York Hospital Medical Center of Queens, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action by submitting, inter alia, the requisite billing forms, the affidavits from its third-party biller, the certified mail receipts, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006], affd 9 NY3d 312 [2007]).

In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant’s verification requests, dated April 22, 2008, and May 22, 2008, respectively, requested “Rev. 01/04 NF5 & Assignment of Benefit Forms signed (No Stamps).” The plaintiff responded by providing exactly what was requested of it. The defendant cannot now complain that the NF5 or the assignment of benefits forms provided by the plaintiff were “outdated,” as its verification requests only sought the January 2004 version of the NF5 form and its accompanying assignment. Contrary to the Supreme Court’s conclusion, the affidavit of the defendant’s representative was insufficient to raise a triable issue of fact, as the plaintiff’s documented responses demonstrate that it [*2]complied with the defendant’s verification requests.

The defendant’s remaining contentions are without merit.

Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action. Dillon, J.P., Covello, Florio and Hall, JJ., concur.

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

Lawrence N. Rogak, LLC, Oceanside, N.Y. (David A. Gierasch of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated August 3, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment [*2]dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint and should have denied the defendant’s cross motion for summary judgment dismissing the complaint. Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.

—[*1] Law Offices of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for appellant. Steven J. Neuwirth, Garden City, for respondent.

Order of the Appellate Term of the Supreme Court in the First Judicial Department, entered June 24, 2009, which affirmed an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about February 15, 2007, finding the issue of which insurer is the primary insurer must be submitted to arbitration, unanimously affirmed, with costs.

Insurance Law § 5105 (b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12 (b) provides that “[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part.”

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not “otherwise . . . liable” for the payment of first-party benefits. However, 11 NYCRR 65-4.11 (a) (6) provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” Thus, as “the first insurer to whom notice of claim [was] given” (11 NYCRR 65-3.12 [b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which “[c]learly . . . is an inter-company dispute subject to mandatory arbitration” (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). Concur—Saxe, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ. [Prior Case History: 24 Misc 3d 43.]

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 defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that there was a lack of
coverage because the injuries allegedly sustained by plaintiff’s assignor did not arise
out of an insured incident. The Civil Court denied both plaintiff’s motion and defendant’s cross motion, finding that triable issues of fact existed. Defendant appeals from so much of the order as denied its cross motion for summary judgment.

Defendant’s proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator’s affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing [*2]the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: February 14, 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 (Robin S. Garson, J.), entered August 20, 2009. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs) or, in the alternative, that plaintiff’s action was premature, in that plaintiff had not provided requested additional verification. Plaintiff submitted no written opposition to defendant’s motion. The Civil Court denied defendant’s motion, finding that the EUO scheduling letters were inadequate because they did not delineate the place and location of the EUO in a conspicuous manner, “i.e. bold or larger font,” and that defendant had failed to establish plaintiff’s nonappearance at the EUOs. This appeal by defendant ensued.

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants’ employers’ standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: February 14, 2011