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.), dated October 28, 2008. The order adjourned plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment and ordered plaintiff to provide discovery.

ORDERED that the appeal is dismissed as academic.

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. In the order appealed from, the court adjourned both motions to a later date and ordered plaintiff to produce employment records for its billing manager and to produce its billing manager for a deposition. Subsequent to that order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 (Genine D. Edwards, J.), entered April 21, 2009. The order granted defendant’s motion to vacate the notice of trial and strike the matter from the trial calendar, and directed plaintiff to respond to defendant’s discovery demands.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant served its answer in July 2004. The answer was accompanied by a demand for a verified bill of particulars, a demand for discovery and inspection, a demand for expert witness disclosure, and a notice to take deposition upon oral examination. After
plaintiff served a notice of trial and certificate of readiness on September 16, 2008, defendant moved, on October 3, 2008, for an order vacating the notice of trial and certificate of readiness and striking the action from the trial calendar on the ground that discovery had not been completed. Defendant further requested that the Civil Court direct plaintiff to comply with all outstanding discovery demands. Plaintiff opposed the motion based, inter alia, upon laches. The Civil Court granted defendant’s motion and directed plaintiff to serve verified responses to defendant’s discovery demands within 60 days of the order. The instant appeal by plaintiff ensued.

Defendant’s motion to vacate the notice of trial and strike the matter from the trial [*2]calendar was timely, and the affirmation in support of the motion accurately stated the reason that the action was not entitled to be on the trial calendar (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), i.e., that there was outstanding discovery, an allegation which is undisputed by plaintiff. Consequently, the motion was properly granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). Contrary to plaintiff’s contention, the doctrine of laches does not warrant a denial of defendant’s motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]). Moreover, since plaintiff failed to timely challenge the propriety of defendant’s discovery demands (see CPLR 3122 [a]; 3133 [a]), it must comply with the Civil Court’s direction that it provide responses to defendant’s discovery demands, except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 (Cheree A. Buggs, J.), entered May 11, 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 provide requested verification. In opposition to the motion, plaintiff argued that defendant had failed to prove that it had timely mailed verification requests, and plaintiff asserted that it had never received verification requests. The Civil Court denied defendant’s motion. This appeal by defendant ensued.

The affidavit of defendant’s claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff in accordance with defendant’s 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 Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to provide the requested verification. The mere denial by plaintiff’s billing manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]). Contrary to plaintiff’s contention, the fact [*2]that copies of the verification requests, which were sent to plaintiff’s assignor, were sent to the wrong address does not render the verification requests a nullity since the requested verification was sought from plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [c]; § 65-3.6 [b]; cf. Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and plaintiff’s action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 24, 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 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 claim and that the sole issue for trial was the medical necessity of the services rendered 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, an affirmed medical peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that such services 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 a timely and proper denial,” a finding which plaintiff does not dispute, [*2]defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see Delta Diagnostic Radiology, 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]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 (Lisa S. Ottley, J.), entered July 16, 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 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. Although plaintiff did not submit written opposition
to the cross motion, the Civil Court denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the services at issue. The instant appeal by defendant ensued.

The papers submitted in support of defendant’s cross motion for summary judgment included an affidavit of an employee of its claims division, which established that the denial of claim forms, which denied the claims at issue on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s 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 Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also included were two affirmed peer review reports, both of which set forth a factual basis and medical rationale for the opinions of the peer reviewers that there was a lack of medical necessity for the medical services at issue. Since defendant established its prima facie entitlement to summary [*2]judgment, and plaintiff submitted no written opposition to the cross motion, plaintiff failed to rebut defendant’s prima facie showing that there was a lack of medical necessity for the services (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]). Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 (Katherine A. Levine, J.), entered January 15, 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 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. Plaintiff did not oppose the cross motion. The Civil Court, in effect, denied both motions, holding that the sole issue to be determined at trial was the medical necessity of the medical supplies at issue. Defendant appeals from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of defendant’s cross motion for summary judgment, defendant submitted an affidavit of its personal injury protection litigation representative, which established that the denial of claim form, which denied the claim at issue on the ground of lack of medical necessity, was timely mailed in accordance with defendant’s 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 Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Also submitted was an affirmed peer review report, which set forth a factual basis and medical rationale for defendant’s doctor’s opinion that there was a lack of medical necessity for the [*2]medical supplies at issue. Since plaintiff did not oppose the cross motion, it failed to raise a triable issue of fact as to whether the supplies at issue were medically necessary. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is 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]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 3, 2007. The judgment, entered pursuant to orders of the same court dated June 15, 2006, granting plaintiff’s motion for summary judgment, and March 14, 2007, granting, in part, defendant’s motion, in effect, to recalculate the awards of attorney’s fees and statutory interest and implicitly denying plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, awarded plaintiff the principal sum of $9,231.36.

ORDERED that the judgment is reversed, without costs, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff’s cross motion to enter judgment in accordance with plaintiff’s calculations, are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, among other matters, that plaintiff failed to establish, prima facie, that it is entitled to judgment as a matter of law. In an order dated June 15, 2006, the Civil Court granted the motion. After plaintiff submitted a proposed judgment, defendant moved for a recalculation of the awards of attorney’s fees and statutory interest, and plaintiff cross-moved to enter judgment in accordance with its own calculations. In an order dated March 14, 2007, the Civil Court granted defendant’s motion, in part, and implicitly denied plaintiff’s cross motion. Defendant appeals from the judgment entered [*2]pursuant to these orders.

Upon a review of the record, we agree with defendant’s contention that plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s “officer” failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (a) (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v New York Cent. Mut. Fire Ins., 19 Misc 3d 129[A], 2008 NY Slip Op 50522[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, plaintiff’s motion for summary judgment should have been denied, and defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest should have been denied as academic.

To the extent that defendant, in its brief on appeal, seeks restitution in the event the judgment is reversed (see CPLR 5523), its application is denied without prejudice to seeking such relief in the Civil Court, to be decided by the court upon its determination of the merits of the action.
Accordingly, the judgment is reversed, the orders dated June 15, 2006 and March 14, 2007 are vacated, plaintiff’s motion for summary judgment is denied, defendant’s motion and plaintiff’s cross motion regarding the proper method of calculating attorney’s fees and statutory interest are denied as academic, and the matter is remitted to the Civil Court for all further proceedings on the complaint.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 10, 2010

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 June 5, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 5, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $5,600.38.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 5, 2009 as granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment with respect to these causes of action are denied, defendant’s cross motion for summary judgment dismissing these causes of action is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to the first, second, third and fifth causes of action and for the entry of judgment thereon.

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. Defendant appeals from an order entered June 5, 2009 granting plaintiff’s motion and denying defendant’s cross motion. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR
5501 [c]).

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]that the documents annexed to plaintiff’s motion 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]). Since the affidavit of defendant’s claims representative conceded receipt of the claim forms at issue, plaintiff made a prima facie showing of its entitlement to summary judgment (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]).

The affidavit submitted by defendant, in opposition to plaintiff’s motion and in support of its own cross motion for summary judgment, established that defendant’s denial of claim forms pertaining to the claims at issue in the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth causes of action were timely mailed in accordance with defendant’s 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 Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the affidavit failed to address defendant’s denial of claim form pertaining to the claim at issue in plaintiff’s fifth cause of action. Consequently, defendant did not establish that said denial of claim form was timely mailed and, as a result, defendant is precluded from raising its proffered defenses with respect to plaintiff’s fifth cause of action (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).

The claims at issue in plaintiff’s first, second and third causes of action were denied on the ground that the fees charged were in excess of the workers’ compensation fee schedule. The claims at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were denied on the ground of lack of medical necessity. Defendant’s cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment were based on the foregoing defenses.

To the extent that defendant asserted that the fees charged were not in conformity with the workers’ compensation fee schedule, defendant did not specify the actual reimbursement rates which formed the basis for its determination that plaintiff had billed in excess of the maximum amount permitted (see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant failed to raise a triable issue of fact, and plaintiff was properly awarded summary judgment, with respect to the first, second and third causes of action.

Defendant submitted an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the conclusion that the treatments at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were not medically necessary. The affidavit of plaintiff’s treating doctor, submitted in opposition to defendant’s cross motion for summary judgment, was insufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered, as it did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME and peer review reports (Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*3]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branches of defendant’s cross motion seeking summary judgment dismissing the fourth, sixth, seventh, eighth, ninth and tenth causes of action on the ground of lack of medical necessity should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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., Rios and Steinhardt, JJ., concur.
Decision Date: December 08, 2010

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 October 15, 2008. The order granted defendant’s motion to dismiss the complaint, denied plaintiff’s motion for an order compelling defendant to respond to plaintiff’s discovery demands, and denied plaintiff’s cross motion for, among other things, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York and transacted business in New York City. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which would confer [*2]jurisdiction. Plaintiff moved for an order compelling defendant to respond to its discovery demands and subsequently cross-moved for, among other things, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010

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 October 15, 2008. The order granted defendant’s motion to dismiss the complaint, and denied plaintiff’s cross motion for an order compelling defendant to respond to plaintiff’s discovery demands or, in the alternative, an order staying the proceedings and granting plaintiff leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, service of the summons and complaint was made on the Chief Financial Officer of the
State of Florida pursuant to the long-arm statute (see CCA 404). In the complaint, plaintiff alleged that defendant, a Florida insurance company, was authorized to do business in the State of New York and transacted business in New York City. In its answer, defendant denied the allegations set forth in the complaint and asserted numerous affirmative defenses, including lack of personal jurisdiction. Thereafter, defendant moved to dismiss the complaint based on lack of personal jurisdiction. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Florida insurance company which is not authorized to do business in the State of New York, has not delivered any contracts of insurance to residents of the State of New York, does not maintain an office or agency in the State of New York, does not solicit business in the State of New York, does not have a telephone listing in the State of New York, does not have any employees located in the State of New York, has not transacted any business in the State of New York and has not committed a purposeful act in the State of New York which [*2]would confer jurisdiction. Plaintiff cross-moved for an order compelling defendant to respond to its discovery demands or, in the alternative, an order staying the proceedings and granting it leave to file its proof of claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC).

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant’s litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff’s contention that the affidavit of defendant’s litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist” but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff’s contention, raised for the first time on appeal, that defendant’s motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O’Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Finally, the Civil Court did not improvidently exercise its discretion in refusing to allow plaintiff to submit a late notice of claim to MVAIC. MVAIC is not a party to the instant action and, thus, the Civil Court has no jurisdiction over it.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 08, 2010