[*1] Decided on November 21, 2013

Civil Court of the City of New Y ork, Kings County

Natural Therapy Acupuncture, P.C., a/a/o ADA OKIKA, Plaintiff, against State Farm Mutual Automobile Insurance Company, Defendant.

003036/11

Attorneys for Plaintiff NATURAL THERAPY ACUPUNCTURE, P.C. a/a/o ADA OKIKA

The Rybak Firm, PLLC

1810 Voorhies Avenue, 3rd Floor

Brooklyn, NY 11235

Attorneys for Defendant STATE FARM MUTUAL INSURANCE COMPANY

McDonnell & Adels, PLLC

401 Franklin Avenue

Garden City, NY 11530

Carol Ruth Feinman, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the

review of this Notice of Motion for Summary Judgment:

PapersNumbered

Notice of Motion and Affidavits Annexed (Plaintiff)………..1 & 2 [Exh. 1-5]

Opposition and Affidavits Annexed …….(Defendant)…………3 [Exh. 1-6]

Notice of Motion and Affidavits Annexed..(Defendant)…….. 4 & 5 [Exh. 1-10]

Opposition and Affidavits Annexe (Plaintiff)…………………..6 [Exh. 1-8]

Replying Affidavits (Defendant) ……………………………7 [Exh. E-M]

Other………Plaintiff Post-Motion Memorandum……………..8 [Exh. 1]

Defendant Post-Motion Memorandum9 [Exh. M,N,O,P,L]

Upon the foregoing cited papers and after oral argument, the Decision/Order on [*2]the defendant’s motion seeking Summary Judgment and the plaintiff’s motion seeking Summary Judgment are decided herein as follows:

Plaintiff health service provider brought the within no-fault insurance action against the defendant insurance company to recover first-party no-fault benefits for medical services rendered, pursuant to §5106 of the New York State Insurance Law (hereforth “Insurance Law”) and Regulations of the New York State Insurance Department [11 N.Y.C.R.R. §65-1.1 et. seq.]. Plaintiff is seeking to recover no-fault benefits in the total amount of $600, including statutory interest and attorney fees, for services rendered to its assignor, Ada Okika, between March 9, 2010 to April 16, 2010, relating to injuries allegedly arising out of a motor vehicle accident which occurred on February 13, 2010. Plaintiff seeks reimbursement for no-fault benefits for the following invoices:

a. $535.00 for services rendered between March 9, 2010 and April 10, 2010; and

b. $65.00 for services rendered on April 16, 2010.

Defendant moves herein for an order granting summary judgment and dismissing plaintiff’s complaint as a matter of law, on the grounds that plaintiff failed to establish its prima facie entitlement to no-fault payments, that plaintiff breached a condition precedent to coverage, to wit, its failure to appear for an examination under oath (hereinafter “EUO”), pursuant to 11 N.Y.C.R.R §65-1.1 and §65-3.5, and that plaintiff is fraudulently incorporated, thus arguing that plaintiff is not entitled to receive no-fault payment.

Plaintiff opposes defendant’s application, arguing the reasonableness of defendant’s EUO request, and that such notices and denials from defendant were neither properly generated nor timely mailed.

Plaintiff subsequently also moves herein for an order granting summary judgment as a matter of law, on the grounds that it has established its prima facie case, in that Ada Okika assigned her “no-fault” benefits to plaintiff health service provider pursuant to the terms of the insurance policies sold by the defendant, and plaintiff timely submitted invoices and/or bills to defendant in accordance with the New York State Insurance Law. The plaintiff asserts herein that the defendant failed to properly pay or deny the various claims within thirty (30) days of receipt, as required by the New York State Insurance Law and Regulations.

Defendant opposes Plaintiff’s application, arguing that plaintiff failed to establish its prima facie entitlement to reimbursement, and also that plaintiff fraudulently incorporated its practice.

The court notes that there are two sets of motions filed in the instant action, [*3]referencing the same applications to the court, wherein both parties are seeking relief in their favor. Defendant filed a summary judgment motion seeking relief, in which plaintiff filed opposition papers. Plaintiff also subsequently filed a summary judgment motion seeking relief, in which defendant filed opposition papers. This court, in the interest of judicial economy, shall hereby decide both parties’ motions in this instant decision. The court has considered all submitted documents of both parties herein, along with the additional post-motion briefs the court directed both parties to submit. The court finds that this will cause no prejudice to either party.

The rule governing summary judgment requires the proponent of a summary judgment motion to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. See, Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Tortello v. Carlin, 260 AD2d 201 [1st Dept. 1999]; Cox v. Kingsboro Medical Group, 214 AD2d 150 [2nd Dept. 1995]. The burden of proof, as well as persuasion, rests with the proponent of the summary judgment motion. Once the burden is satisfied, the opponent of the motion must produce sufficient evidence, in admissible form, establishing the existence of at triable issue of fact. See, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], citing Zuckerman v. City of New York, 49 NY2d 557 [1980].

Pursuant to both the Insurance Law and the Regulations promulgated by the Superintendent of Insurance, an insurer is required to pay or deny a claim for no-fault automobile insurance benefits within thirty (30) days from the date a claimant supplies proof of claim forms. See, Insurance Law §5106(a); 11 N.Y.C.R.R. §65.15(h). Failure to pay benefits within the 30-day requirement renders the benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. See 11 N.Y.C.R.R. §65-3.9(a). In addition, the claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See, Presbyterian Hospital in the City of New York v. Maryland Casualty Company, 90 NY2d 274 [1997].

After oral argument previously conducted, this court found that plaintiff had established its prima facie entitlement to no-fault reimbursement. However, the court determined that the remaining issues to be determined were the reasonableness of defendant’s EUO verification request, the timeliness and proper mailing of the EUO verification request, and personal knowledge of the assignor’s appearance or failure of same. The court reserved decision and directed both parties to submit additional briefs regarding these remaining issues, which the court notes it only received additional briefs from defendant. Thus, the court shall render its decision based upon the record herein.

REASONABLENESS OF EUO REQUEST

As a condition to coverage under the revised Personal Injury Endorsement (“PIP”), “the eligible person … shall … as may reasonably be required, submit to examinations under oath by any person named by the [insurer] and subscribe to same. Another condition to coverage under this section sets forth that an eligible person shall [*4]submit to medical examination by physicians selected by or acceptable to the insurer as often as the insurer may reasonably require.” See, 11 N.Y.C.R.R. § 65—1.1(d) [Sec. I. Conditions, Proof of Claim (b) ].

It is well settled that a defendant insurance company is within its rights to request an examination under oath (“EUO”) of a plaintiff provider based upon the fact that all no-fault endorsements issued in the state since April 2002 allow for the taking of same, for the purposes of verifying a claim. Moreover, an EUO of a medical provider has been held to be appropriate where the insurer can demonstrate a valid and necessary reason for doing so. See 11 N.Y.C.R.R. §65-1.1. See also, W & Z Acupuncture, P.C. v Amex Assurance Co., 24 Misc 3d 142(A) [App. Term 2nd, 11th & 13th Jud. Dists. 2009]. Appearance at a properly demanded EUO is a condition precedent to an insurance carrier’s liability to pay no-fault benefits. See, Five Boro Psychological Services, P.C. v. Progressive Northeastern Ins. Co., 27 Misc 3d 141(A) [App. Term 2nd, 11th and 13th Jud. Dists. 2010].

The regulations provide for an examination under oath. The term “examination under oath” is not defined by the no-fault regulations. Word used in regulations that are not specifically defined in the regulations are to be given their ordinary meaning. See, Oefelein v. Town of Thompson Planning Board, 9 AD3d 556 [3rd Dept.2004]; Parker v. Kelly, 140 AD2d 993, [4th Dept.1988]; McCarter v. Beckwith, 247 App.Div 289 [2nd Dept.1936]. Examination is defined as the questioning of a witness by an attorney. See, Law.Com Law Dictionary. Examination can also be defined as a formal interrogation. See, Webster’s Unabridged Dictionary 2nd Ed., [1998; p. 673]. Therefore, the term “examination under oath” as used in the no-fault regulations means the insurer can request the injured party or the assignee of the injured party appear and give oral testimony after having been sworn or under affirmation.

In the instant record, defendant proffers the Affidavit of Dawn Madalone, an investigator employed in defendant’s Special Investigative Unit. Ms. Madalone attests to her personal knowledge of the instant matter, due to her involvement in the investigation of plaintiff provider. Ms. Madalone sets forth the factors and circumstances which led to defendant insurance company to initially investigate plaintiff. Ms. Madalone also sufficiently substantiates the defendant’s request for an EUO, as a part of defendant’s further investigation and verification of plaintiff no-fault reimbursement claims. Moreover upon further review, defendant insurance company did in fact advise plaintiff provider in the EUO scheduling letters that it requested an EUO based on, inter alia, the “rendition and necessity of [plaintiff’s] billing practices, as well as the patten in the nature and frequency of the medical services.” These letters clearly delineate defendant’s further reasons as to why it sought verification of the claims.

However, despite defendant’s arguments herein for seeking such verification, the regulations do not provide an insurer with the right to obtain written documentation other than such documentation as may be demanded as verification. In addition to [*5]appearing for an examination under oath, the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. See, 11 NYCRR 65—1.1. The regulations also do not give the insurer to right to ask an assignee to produce documents relating to the corporate structure or finances of a medical provider. See, 11 NYCRR 65—3.5(a). Upon receipt of the completed verification form, the insurer can request additional verification. See, 11 NYCRR 65—3.5(b). The regulations only permit the insurer to obtain written information to verify the claim. See, 11 NYCRR 65—3.5(c); See also, generally, V.M.V. Management Co., Inc. v. Peerless Ins., 15 AD3d 647 [2nd Dept., 2005]. Nothing in the No—Fault regulations permits an insurer to request an assignee to produce corporate organizational and financial documents a week in advance of an EUO.

However, before this court can refuse to accept defendant’s arguments in favor of its verifications requests seeking EUOs, plaintiff must first establish that it had objected to or responded to such requests indicating and specifying the claims of unreasonableness. In the present case, the plaintiff provider has in no way established that it ever objected to any part of the defendant’s EUO notices. The Appellate Term has clearly decided that due to such a failure by a plaintiff provider to submit any objections prior to an application to the court, it will decline to consider the plaintiff’s argument. See for example, Viviane Etienne Medical Care, P.C. v State Farm Mutual Ins. Co., 35 Misc 3d 127(A) [App. Term 2nd Dept. 2012]; Crescent Radiology v. American Transit, 31 Misc 3d 134(A) [App. Term 2nd Dept. 2011]; See also, Westchester Medical Center v New York Central Fire, 262 AD2d 553 [2nd Dept. 1999]. Thus, this court, in following precedent, will also decline to consider the instant plaintiff’s argument.

In light of the findings above, plaintiff’s application seeking summary judgment is hereby denied.

TIMELY AND PROPER MAILING OF EUO and PERSONAL KNOWLEDGE OF FAILURE TO APPEAR

In order to establish that the claimant failed to appear for the scheduled EUOs, the defendant is required to establish that the EUO scheduled letters were mailed. See for example, Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2nd Dept. 2006]. There are three distinct methods to demonstrate proof of mailing: (1) provide an affidavit from an individual with personal knowledge of the actual mailing (see for example, Carle Place Chiropractic v. New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 1139(A) [N.Y.Dist.Ct. 2008]); (2) acknowledgment by the adverse party that it received the subject document (see for example, A.B. Medical Services v. New York Central Mutual Fire Ins. Co., 3 Misc 3d 136(A) [App. Term 2nd & 11th Jud. Dists. 2004]); and (3) where the party provides proof of a standard office procedure, which ensures that documents are properly addressed and mailed (see for example, Lenox Hill Radiology, P.C. v. Tri State Consumer Ins. Co.,31 Misc 3d 13 [App. Term 1st Dept. 2010]). [*6]

Additionally, the defendant must also meet the burden of establishing with an affidavit by a person with personal knowledge that the plaintiff’s assignor failed to appear for the scheduled EUOs (see, Infinity Health Products, LTD., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007].

In support of its motion, defendant submitted herein both the Affidavit of Dawn Madalone and the Affidavit of Neil Gahl, Claims Representatives employed by defendant insurance company. Contrary to plaintiff’s contentions, the court finds that such affidavits of Ms. Madalone and Mr. Gahl sufficiently establishe the standard office procedures and practices for the preparation and generation of verification letters and NF-10 denial of claim forms in which defendant institutes. Specifically, both Affidavits sufficiently establish the process defendant institutes regarding all incoming mail of proof of claims, as well as the process defendant institutes regarding all out-going mail, including but not limited to the verification request letters and NF-10 denials (of which are previously prepared by a designated claims representative). In addition, both Affidavits sufficiently establish the process of mailing of same by way of daily pick up by a U.S. Postal Service. Both Affidavits assert that defendant received plaintiff’s first proof of claim invoice on April 19, 2010, and that an EUO verification request/delay letter was thereafter issued and mailed on May 4, 2010, directing the plaintiff to appear for the EUO on June 1, 2010. Additionally, upon defendant’s receipt of an additional proof of claim on April 30, 2010, an additional verification request/delay letter was issued and mailed on May 14, 2010. Both Affidavits indicated that upon plaintiff’s failure to appear for the initial EUO scheduled date of June 1, 2010, a follow-up EUO request was issued and mailed to plaintiff on June 7, 2010, directing plaintiff to appear for the EUO on June 29, 2010. Both Affidavits also indicated that upon plaintiff’s failure to appear for the re-scheduled EUO of June 29, 2010, a denial of no-fault reimbursement was thus issued, based upon plaintiff’s failure to satisfy a condition precedent of attending the EUO.

In addition, the defendant’s presentation herein of a copy of its mail receipt by United States Postal Service is not only additional prima facie proof of mailing, but is key to creating the presumption of receipt. See, Hernandez v. Merchants Mutual Ins. Co., 14 Misc 3d 1215(A) [Civ. Ct. Bronx Co. 2006].

The defendant further submitted herein the Affirmation of Joseph A. Schwarzenberg,

Esq. , who attested he was employed as an attorney at the law offices of McDonnell & Afels, PLLC, which represents the defendant herein. Mr. Schwarzenberg asserted that he was assigned to handle the EUO, and was present in the office where the EUOs were scheduled to be conducted, on both dates of June 1, 2010 and June 29, 2010, wherein [*7]plaintiff failed to appear on either date. The Court finds that such Affirmation of Mr. Schwarzenberg sufficiently attests to having personal knowledge of the plaintiff’s failure to appear for three duly scheduled EUOs. See, Infinity Health Products, Ltd., v. Progressive Insurance Company, 28 Misc 3d 133(A) [App. Term 2nd, 11th, & 13th Jud. Dists. 2010]; Fair Price Medical Supply Corp., v. New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 141(A) [App. Term 2nd & 11th Jud. Dists. 2007]; Chi Acupuncture, P.C. v. Kemper Auto & Home Ins. Co., 14 Misc 3d 141(A) [App. Term 9th & 10th Jud. Dists. 2007].

In reviewing the contentions made by the plaintiff within its opposition to defendant’s application for summary judgment, the court finds that it has failed to rebut the presumption of defendant’s prima facie timely mailing of the EUO verification requests and denials, and plaintiff’s failure to appear for either of the properly scheduled EUOs. In light of such, the Court finds that the plaintiff’s submissions in opposition are insufficient to raise a triable issue of fact as to whether the defendant timely issued a denial of its outstanding claims. See for example, Zuckerman v. City of New York, 49 NY2d 557 [1980].

In light of the this condition precedent, it is clear that plaintiff’s failure to comply (or even properly object to preserve its objection for court review) with a condition precedent to coverage voids the policy contract ab initio, and defendant is not obligated to pay the claim, regardless of whether defendant issued denials beyond the thirty (30) day period. See for example, Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept. 2011]; see also, Neomy Medical, P.C., v American Transit Ins. Co., 31 Misc 3d 1208(A) [Kings County Civ. Ct.]. This court finds, based upon the foregoing analysis, that the plaintiff has failed to establish its entitlement to summary judgment, and the defendant has sufficiently established its entitlement to summary judgment herein regarding the plaintiff’s claims. See, Winegrad v. NYU Medical Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980].

Based upon the foregoing, the plaintiff’s application seeking summary judgment is hereby denied. In addition, the defendant’s application seeking summary judgment against the plaintiff is hereby granted, and the matter is dismissed.

This constitutes the Decision and Order of this Court.

DATED:November ___, 2013

Brooklyn, New York

_____________________

[*8]

CAROL RUTH FEINMAN

Judge, Civil Court

Matter of Allstate Ins. Co. v Wilen

2013 NY Slip Op 07727 [111 AD3d 824]

November 20, 2013

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

In the Matter of Allstate Insurance Company, Appellant, v Daniel Wilen, Respondent.

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Peter J. DiConza, Jr., Manhasset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to vacate the award of a master arbitrator dated June 6, 2012, which vacated an award of an arbitrator dated March 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered October 1, 2012, which, inter alia, denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

“A master arbitrator is empowered to apply the law to a given set of facts even if his or her conclusion differs from that of the arbitrator” (Matter of Empire Ins. Co. v Lam, 273 AD2d 469, 470 [2000]). Contrary to the petitioner’s contention, the Supreme Court properly determined that the master arbitrator did not exceed his powers. The master arbitrator properly vacated the arbitration award which, in light of the evidence, was “incorrect as a matter of law” (former 11 NYCRR 65.19 [a] [4]; see Insurance Law § 5106; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of State Farm Ins. Co. v Spilotros, 257 AD2d 577 [1999]).

The petitioner’s remaining contentions are without merit. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.

[*1] Decided on November 14, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ
570792/12.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 22, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered January 22, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for acupuncture services provided by its licensed acupuncturist to its assignor. The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.

Inasmuch as the Superintendent of Insurance has not adopted a fee schedule for the reimbursement of acupuncture services performed by a licensed acupuncturist, defendant properly limited payment to “charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 [2008]), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [2009]; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]). Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate. Since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services rendered by a chiropractor, plaintiff is not entitled to any additional reimbursement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 14, 2013

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered October 19, 2011. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to modify a judgment.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with the decision herein.

On this appeal in an action by a provider to recover assigned first-party no-fault benefits, the issue is whether prejudgment interest should accrue from the filing, or the service, of the summons and complaint.

Insofar as is relevant to this appeal, the facts are as follows: Plaintiff filed the summons and complaint in this action on October 27, 2008, but service was not completed until January 26, 2009. Subsequently, a nonjury trial was held, limited to the issue of medical necessity. At the beginning of the trial, the parties stipulated that, among other things, defendant had sent timely denials of the claims at issue in December 2007 and January 2008. After the trial, the Civil Court found that defendant had not proven its defense and directed that judgment be entered in favor of plaintiff. Based upon an assessment of damages submitted by plaintiff, a judgment was entered on March 12, 2011 awarding plaintiff the principal sum of $2,680 plus interest in the sum of $1,393.60, the interest being awarded from October 27, 2008, the date of the filing of the summons and complaint. Defendant thereafter moved to modify the judgment, arguing that, pursuant to CCA 412, the interest should have been awarded from January 26, 2009, the date of the service of the summons and complaint. The Civil Court denied defendant’s motion. We reverse.

The no-fault regulations provide, in pertinent part:

“If an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken . . .” (Insurance Department Regulations [11 NYCRR] § 65-3.9 [c]).
In this case, defendant timely denied the claims at issue and plaintiff did not commence the action within 30 days the of receipt of those denials. Thus, the interest did not begin to accrue until plaintiff commenced this action. New York City Civil Court Act 400 (1) provides that a Civil Court action is commenced by the filing of a summons and complaint. However, section 412 of the New York City Civil Court Act further provides:
“In any action, petition, order to show cause or other proceeding wherein interest accrues from the date of the inception of the action, petition, order or proceeding, said entitlement to interest shall not begin to accrue until service is completed by the actual index number being properly depicted on the summons and provided to the party to be charged with the payment of interest.”
Because the no-fault regulations provide that, in situations such as the one here, interest on a no-fault claim does not accrue until the date of the inception of the action, CCA 412 applies (see 65 Siegel’s Practice Review, The New § 412, on the Accrual of Interest, at 1 [Sept. 2005]; All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 38 Misc 3d 268 [Civ Ct, Kings County 2012]). Therefore, the interest in this case should have been awarded from the date of the service of the summons and complaint, rather than from the date of the filing thereof.

Accordingly, the order, insofar as appealed from, is reversed, defendant’s motion to modify the judgment is granted, and the matter is remitted to the Civil Court for a re-calculation of statutory interest in accordance with this decision.

Pesce, P.J., Weston and Rios, JJ., concur.

Decision Date: November 12, 2013

[*1]

Alev Med. Supply, Inc. v Geico Gen. Ins. Co.

2013 NY Slip Op 52322(U) [44 Misc 3d 131(A)]

Decided on November 12, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees.

Following a joint nonjury trial of this action by a provider to recover assigned first-party no-fault benefits and of seven other actions, the Civil Court directed a verdict in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case. A judgment dismissing the complaint was subsequently entered.

At the trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). The witness also offered testimony pertaining to the submission of the claim forms to defendant and of defendant’s failure to pay the claims. Thus, plaintiff established its prima facie case (see generally Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant offered no defense, instead relying upon the record, and rested its case.

At a trial, a plaintiff is not required to show that there is no defense to the cause of action or that a proffered defense lacks merit (Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146 [App Term, 2d, 11th & 13th Jud Dists 2013]; cf. CPLR 3212 [b] [upon a motion for summary judgment, a plaintiff must “show that there is no defense to the cause of action or that the . . . defense has no merit”]). Rather, it is the defendant’s burden at trial to show that it has a [*2]meritorious defense. In view of the foregoing, judgment should have been awarded in favor of plaintiff.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $1,530, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

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

Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered December 6, 2011. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1).

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting the branch of defendant’s motion seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1). By subsequent order entered November 19, 2012, the Civil Court granted defendant’s unopposed motion for summary judgment dismissing the complaint. In light of the November 19, 2012 order, this appeal must be dismissed as academic (see Livny v Rotella, 305 AD2d 377 [2003]; Cherico, Cherico & Assoc. v Lamanna, 21 Misc 3d 137[A], 2008 NY Slip Op 52292[U] [App Term, 9th & 10th Jud Dists 2008]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

[*1] Decided on November 12, 2013

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered June 10, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, jointly tried with seven other actions, plaintiff’s counsel marked several exhibits for identification. However, before he had the opportunity to move those exhibits into evidence, the Civil Court directed judgment in favor of defendant and dismissed plaintiff’s complaint, finding that plaintiff had failed to establish its prima facie case.

At the nonjury trial, plaintiff presented a witness whose personal knowledge of plaintiff’s business practices and procedures was sufficient to lay a foundation for plaintiff’s claim forms to be admitted into evidence as business records and to establish the nonpayment of the claims (CPLR 4518; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; see also Gagen v Kipany Prods., Ltd., 27 AD3d 1042 [2006]; Matter of Stuckelman [Blodnick, Gordon, Fletcher & Sibell, P.C.-Commissioner of Labor], 16 AD3d 882 [2005]). These claim forms would have constituted prima facie evidence of the fact and the amount of the loss sustained (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012]). Since the Civil Court erroneously directed judgment in favor of defendant before plaintiff’s counsel had the opportunity to move the claim forms into evidence or to elicit testimony regarding the nonpayment of the claims, the action should be remitted to the Civil Court for a new trial.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 12, 2013

American Tr. Ins. Co. v Marte-Rosario

2013 NY Slip Op 07416 [111 AD3d 442]

November 12, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

American Transit Insurance Company, Appellant, v Maria Marte-Rosario et al., Defendants, and Empire Acupuncture, PC, et al., Respondents.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for Empire Acupuncture, PC, respondent.

Amos Weinberg, Great Neck, for Multiple Medical Health Services P.C. and Infinite Chiropractic, PLLC, respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered December 24, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants Multiple Medical Health Services, P.C. and Infinite Chiropractic, PLLC, unanimously reversed, on the law, with costs, the motion granted, and it is declared that plaintiff owes no coverage duty to said defendants.

Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Defendant Empire Acupuncture, PC (Empire), which has not appealed from the order, requests modification of the order to deny plaintiff’s motion for summary judgment against it and grant Empire’s motion for summary judgment against plaintiff. Contrary to plaintiff’s contention, the [*2]court’s reference to a “default” by Empire does not render the portion of the order pertaining to Empire nonappealable pursuant to CPLR 5511, since Empire opposed plaintiff’s motion for summary judgment against it (see Spatz v Bajramoski, 214 AD2d 436, 436 [1st Dept 1995]). However, although we are empowered to search the record and grant the relief sought by Empire under these circumstances (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Brewster v FTM Servo, Corp., 44 AD3d 351 [1st Dept 2007]), we have considered and rejected Empire’s arguments on the merits. Concur—Tom, J.P., Andrias, Friedman, Freedman and Clark, JJ.

American Tr. Ins. Co. v Lucas

2013 NY Slip Op 07273 [111 AD3d 423]

November 7, 2013

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 25, 2013

American Transit Insurance Company, Appellant, v Keyana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent. American Transit Insurance Company, Appellant, v Tashuana Lucas et al., Defendants, and Sky Acupuncture, P.C., Respondent.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Unitrin, 82 AD3d at 560). [*2]

” ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], 2005 NY Slip Op 51815[U] [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A], 2007 NY Slip Op 50365[U] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560). Concur—Mazzarelli, J.P., Acosta, Saxe, Richter and Feinman, JJ.