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. 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 jurisdiction. Plaintiff moved for an order [*2]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

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 4, 2009, which granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment.

Per Curiam.

Order (Arlene P. Bluth, J.), entered August 4, 2009, reversed, without costs, the order vacated and the matter remanded to Civil Court for a new determination of the parties’ respective motions for summary judgment following an application by plaintiffs to the Workers’ Compensation Board to determine their rights under the Workers’ Compensation Law.

In this action to recover assigned first-party no-fault benefits, defendant’s submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers’ Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor’s employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (Arvatz, 171 AD2d at 269), and the parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to plaintiffs’ claim (see Botwinick, supra; Dunn, supra; LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

We note that, contrary to plaintiffs’ contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 07, 2010

[*1]

Civil Court of the City of New York, Kings County, December 7, 2010

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn, for plaintiff. Law Offices of Teresa M. Spina, Woodbury, for defendant.

{**30 Misc 3d at 486} OPINION OF THE COURT

Alice Fisher Rubin, J.

Both of the above-captioned actions are for recovery of unpaid no-fault medical bills. Plaintiff seeks to collect monies due after defendant denied reimbursement for bills received from plaintiff for medical services rendered to the assignors, Johnson and Diggs. Defendant’s denials were based on a lack of medical necessity.

During trials before this court on July 29 and August 4, 2010 to determine the issue of medical necessity of the treatments rendered, the court was presented with novel issues regarding the admissibility of some of defendant’s documents. The court reserved decision and instructed both parties to submit legal briefs discussing the issues. After reviewing the briefs and the law, the court finds that defendant did not establish its prima facie case and hereby enters judgment in favor of plaintiff.

Discussion

In both cases, defendant stipulated that plaintiff had established its prima facie case by proving that its claims were mailed and received by defendant, and that payment of no-fault benefits is overdue. Plaintiff stipulated that defendant issued timely and proper denials, but did not stipulate that defendant had a proper basis for the denials. The denials, written by Dr. Sohn, were based upon peer reviews, each authored either by himself, Dr. Ferrante or Dr. Snitkoff. Dr. Snitkoff was the only doctor not available to testify.

In the Johnson case, only one out of the four peer reviews presented was admitted into evidence. Two of the peer reviews not admitted were signed by Dr. Ferrante, but not notarized or dated; the third peer review not admitted was signed by Dr. Snitkoff, but not notarized. In the Diggs case, one peer review was admitted into evidence and two were not. The peer reviews{**30 Misc 3d at 487} not admitted, allegedly by Drs. Sohn and Snitkoff, were unsigned and not notarized.^[FN1]

The parties were to discuss the peer reviews not admitted into evidence in their memoranda. Generally, an unsigned peer review does not constitute admissible evidence and cannot be used to support a lack of medical necessity defense. (See CPLR 2106; Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co., 21 Misc 3d 127[A], 2008 NY Slip Op 51928[U] [App Term, 1st Dept 2008].) Additionally, a peer review must be properly authorized or affirmed, by a notary, for example, in order to be admissible. (See Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778, 778 [2d Dept 2008]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630, 631 [Civ Ct, NY County 1971].) This court is not aware of any law which requires a peer review to be dated. However, the court hereby deems the date to be a necessary component in order to further authenticate the document, and also to ensure that the peer review is accurately described in the denial.

Peer Reviews Not Admitted Into Evidence

Defendant’s Arguments

Defendant’s memorandum includes several arguments. First, defendant states that it provided plaintiff with an expert witness disclosure on July 1, 2010 and plaintiff did not object to any documents contained in the disclosure. It is defendant’s position that plaintiff has now waived any objections to any information that was included in the disclosure because there was ample time to review and take action before trial. Defendant also proffers that any defect which may have existed in the{**30 Misc 3d at 488} denials was cured by plaintiff stipulating that they were timely and proper.

Lastly, defendant states that because Drs. Sohn and Ferrante were present to testify about their own peer reviews, the reviews do not have to be in evidence for their testimony to be valid. In support of this argument, defendant relies on Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (27 Misc 3d 140[A], 2010 NY Slip Op 50987[U], *2 [2010]), which states that, where the underlying documents relied upon by a doctor to write a peer review are not used for their truth,^[FN2] but only to form an opinion based on the information contained in the documents, the defendant does not have to establish the reliability of those documents.

Plaintiff’s Arguments

In its memorandum, plaintiff concedes to stipulating that defendant’s denials were timely, but emphasizes that it only stipulated that the denials were proper in form, not in substance. According to St. Barnabas Hosp. v Allstate Ins. Co. (66 AD3d 996, 996 [2d Dept 2009]), a proper denial of a claim for no-fault benefits must include not only standard form information prescribed by the Insurance Department, but also must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (internal quotation marks and citations omitted). Plaintiff posits that defendant’s denials fail to state viable reasons with specificity.

Next, plaintiff notes that none of the documents relied upon by either Dr. Sohn or Dr. Snitkoff in creating their peer reviews were admitted into evidence, and that neither party had any personal knowledge of where the documents came from. Plaintiff also asserts that the undated peer reviews do not provide any evidence that they are the peer reviews referred to in defendant’s denials, and there was no testimony to provide an explanation for the omissions.

Finally, plaintiff argues that a peer review must be in evidence to be used as a basis for a denial. Plaintiff claims that an unsubstantiated, inadmissible peer review is equivalent to no peer review at all; therefore, a denial based on such a peer review is unsubstantiated as well. Plaintiff cites Innovative Chiropractic, P.C. v Travelers Ins. Co. (27 Misc 3d 141[A], 2010 NY{**30 Misc 3d at 489} Slip Op 50994[U], *1 [App Term, 2d, 11th & 13th Jud Dists 2010]), which explains that a proper peer review “set[s] forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue.” Following this rationale, plaintiff asserts that before defendant can even prove the denials are proper, a peer review must first be in admissible form, which is not the case here.

Defendant Has Not Proved Its Prima Facie Case

Although plaintiff did not object to the documents contained in defendant’s expert witness disclosure before trial, defendant has not provided, and the court has not found, any authority to support the notion that plaintiff waived its ability to object to the denials during trial. Further, the court cannot support defendant’s argument that plaintiff’s stipulation cured the defects in defendant’s denials. At least one case has stated that a defective denial cannot be corrected nunc pro tunc beyond the time period where the denial is due. (See Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2d Dept 2004].) However, the Nyack case is silent on the process of how a defective denial is cured, even within the time period of when it is due.

Defendant’s final argument suggests that, although some of the peer reviews by Drs. Sohn and Ferrante were not in evidence, the doctors’ testimony regarding those documents is still valid. The Urban case cited by defendant, however, only states that a party does not have to establish the reliability of the underlying documents used to create a peer review, but does not state that the same is true for the actual peer review. As stated previously, there is case law providing that a peer review must be admissible to be used in establishing a lack of medical necessity defense.

Based on the law, neither of the peer reviews at issue in the Diggs case can be rendered admissible because they were not signed, regardless that one of the doctors was present to testify. Since the documents are not admissible, they cannot serve as a valid basis for defendant’s denials and, therefore, defendant is not able to establish its prima facie case.

In the Johnson case, because Dr. Snitkoff was not present, there is no way to authenticate his signature, and his peer review is therefore inadmissible. Although not notarized, it would seem as though Dr. Ferrante’s peer reviews are admissible because he was present in court to affirm his own{**30 Misc 3d at 490} signature. However, because both of his peer reviews fail to state the date they were signed, this court cannot ensure that the peer reviews presented were the ones relied upon and referenced in the denials. Based upon the aforementioned facts and law, defendant has not provided sufficient proof of its medical necessity defense and judgment is entered in favor of plaintiff.

Footnotes

Footnote 1: Plaintiff argues that the one peer review admitted in the Diggs case was in error because there was a month-long gap between the date of the peer review and the date it was signed, which is a violation of CPLR 4518. The court finds this argument to be misplaced and will not review the documents already admitted into evidence.

Footnote 2: For example, to prove that there was an injury or that a patient was treated as set forth in the records. (Urban Radiology, P.C., 2010 NY Slip Op 50987[U], *2.)

—[*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 no-fault medical payments under an insurance contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 26, 2010, as granted the defendant’s cross motion to modify the amount of a judgment entered upon an order of the same court dated September 22, 2009, inter alia, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.

Ordered that the appeal by the plaintiffs Mary Immaculate Hospital-Caritas Health Care, as assignee of Leroy Pearson, and New York Hospital Medical Center of Queens, as assignee of Eugenia Theodosiou, is dismissed, as those plaintiffs are not aggrieved by the portion of the order appealed from; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant, payable by the plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell.

The plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell (hereinafter the plaintiff), was awarded summary judgment on a cause of action to recover no-fault medical payments from the defendant under an insurance contract. Thereafter, judgment was entered against the defendant in satisfaction, inter alia, of the aforementioned claim of the plaintiff. The defendant subsequently cross-moved pursuant to CPLR 5019 (a) to modify the amount of the judgment that was in satisfaction of that claim, on the ground that it exceeded the limits of the policy covering Gonell in light of payments made under that policy to other health care providers. The Supreme Court, among other things, granted the cross motion.

Contrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (see Hospital for Joint [*2]Diseases v Hertz Corp., 22 AD3d 724 [2005]; see generally Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; Frankel v J.P. Morgan Chase & Co., 76 AD3d 664 [2010]).

The plaintiff’s remaining contentions are without merit.

We note that, in affirming the Supreme Court’s order, we do not pass upon the propriety of the procedural mechanism utilized by the defendant, to wit, CPLR 5019 (a), to which the plaintiff did not object (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]; Martin v City of Cohoes, 37 NY2d 162, 165-166 [1975]). Skelos, J.P., Fisher, Santucci and Leventhal, JJ., concur.

Civil Court of the City of New York, Queens County

086674/10

The petitioner was represented by Jonathon H. Kaufman, Esq. of Serpe, Andree & Kaufman, 149 Main Street, Huntington NY. The respondent was represented by Stacey Gorny, Esq. of Lewis Johns Avallone Aviles, LLP, 425 Broad Hollow Road, suite 400, Melville, NY.

Genine D. Edwards, J.

Petitioner seeks to vacate an arbitration award rendered following mandatory arbitration

because the arbitrator allegedly disregarded applicable law. Respondent opposes the application

and contends that the arbitrator’s decision was neither arbitrary nor capricious.

William Salas, petitioner’s insured, drove a loaner vehicle, while his own vehicle was being repaired at a car dealership. Salas’ vehicle was insured by petitioner and the loaner vehicle was insured by respondent. While driving the loaner vehicle, Salas struck a pedestrian. Petitioner paid no-fault benefits to the pedestrian. Thereafter, it submitted a claim to arbitration and sought reimbursement from respondent for expenses and medical benefits paid to the pedestrian.

Salas signed a loaner/rental agreement before he took control of the loaner vehicle. [*2]Paragraph 6 of the agreement stated, in pertinent part:

You are responsible for all damage or loss You cause to others. You agree to provide auto liability, collision and comprehensive insurance covering You, Us and the Vehicle. Your personal auto insurance coverage is primary (emphasis added). If you have no auto liability insurance in effect on the date of loss, or if We are required by law to provide liability insurance, We provide auto liability insurance (the Policy”) that is secondary to any other valid and collectible insurance, whether primary, secondary, excess or contingent . . . .”

Notice of Petition, Exhibit C. Based upon paragraph 6 of the agreement, the arbitrator determined that petitioner failed to prove its prima facie case. Thus, petitioner was deemed primarily responsible for no-fault payments and was not entitled to reimbursement for expenses and medical benefits paid to the pedestrian.

In the instant application, petitioner equates a loaner vehicle to a rental vehicle and asserts that as between a no-fault insurer of a rental vehicle and a no-fault insurer of a non-owner renter, the primary source of coverage for no-fault benefits is the no-fault insurer of the rental vehicle. In opposition, respondent contends that the award should stand because the arbitrator’s decision was neither arbitrary nor capricious. It contends that the arbitrator based its decision upon credible evidence, namely paragraph 6 of the loaner/rental agreement.

“Courts are reluctant to disturb the decisions of arbitrators lest the value of this method of resolving controversies be undermined.” Matter of Goldfinger v. Lisker, 68 NY2d 225, 508 NYS2d 159 (1986). Where arbitration is pursuant to a voluntary agreement of the parties, the award will be upheld unless it violates strong public policy, is totally irrational, or exceeds a specifically enumerated limitation of the arbitrator’s power. See Motor Vehicle Acc. Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 652 NYS2d 584 (1996) (Where arbitration is pursuant to voluntary agreement of parties, the arbitrator’s determination on issues of law, such as application of statute of limitations as well as on issues of fact, is conclusive, in absence of proof of fraud, corruption, or other misconduct.); Teamsters Local 814 Welfare, Pension and Annuity Funds v. County Van Lines, Inc.,56 AD3d 567, 867 NYS2d 190 (2 Dept. 2008). In the case of mandatory arbitration, as is the case here, due process imposes closer judicial scrutiny on the arbitrator’s determination. RDK Medical P.C. v. General Assur. Co., 8 Misc 3d 1025(A), 806 NYS2d 448 (Civ. Ct. Kings County 2005). Therefore, “[a]n arbitration award in a mandatory arbitration proceeding will be upheld if it is supported by the evidence and is not arbitrary and capricious.” State Farm Mut. Auto. Ins. Co. v. City of Yonkers, 21 AD3d 1110, 801 NYS2d 624 (2d Dept. 2005). See also Kemper Ins. Co. v. Westport Ins. Co., 9 AD3d 431, 779 NYS2d 788 (2d Dept. 2004); State Farm Mut. Auto. Ins. Co. v. American Transit Ins. Co., 26 Misc 3d 127(A), 906 NYS2d 783 (2d, 11th & 13th Jud. Dists. 2009). This is a priority of payment claim. In order to determine the priority of payment, all relevant policies should be reviewed and considered. Petitioner never produced its policy. Thus, [*3]the arbitrator properly relied upon the respondent’s policy to determine that petitioner was primarily responsible to make no-fault payments to the pedestrian. In addition, this Court is unpersuaded by petitioner’s assertion that a loaner vehicle is akin to a rental vehicle and thus, respondent is primary for no-fault coverage. See M.N. Dental Diagnostics, P.C. v. Government Employees Ins. Co., 24 Misc 3d 43, 884 NYS2d 549 (App. Term. 1st Dept. 2009). It has been held that a loaner vehicle is a “temporary substitute vehicle”, which ordinarily is covered under the insured’s policy. See Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 AD2d 794, 759 NYS2d 734 (2d Dept. 2003); ELRAC, Inc. v. Mehlinger, 258 AD2d 500, 684 NYS2d 625 (2d Dept. 1999).

The application to vacate the arbitration award is denied. Thus, the award is confirmed.

This constitutes the decision and order of the Court.

Date: December 6, 2010 _____________________________

Genine D. Edwards

Judge of Civil Court [*4]

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff-provider commenced this action to recover assigned first-party no-fault benefits for medical supplies provided to its assignor. Defendant-insurer moved for summary judgment dismissing the complaint as premature on the ground that plaintiff failed to comply with defendant’s verification requests. In support of that motion, defendant submitted the affidavit of its claims examiner, in which he stated that (1) defendant received plaintiff’s claim on August 13, 2007; (2) defendant mailed verification requests on August 14, 2007, and follow-up requests on August 28, 2007 and September 28, 2007; and (3) plaintiff failed to respond to any of these requests. Civil Court denied the motion on the ground that the verification requests were issued “less than thirty (30) days apart in contravention of the regulations, thereby rendering them improper.” We reverse.
It is well settled that the 30-day period within which an insurer must pay or deny the claim is tolled until it receives the relevant verification requested (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]). Plaintiff does not dispute that defendant mailed the verification requests, as well as the follow-up requests, and that plaintiff failed to respond. Although defendant’s September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant’s “improper” follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd., supra), does [*2]not vitiate the validity of the September 28, 2007 follow-up request. “[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests” (id. at 865). Accordingly, since plaintiff did not respond to defendant’s verification requests, its action is premature, and defendant’s motion for summary judgment dismissing the complaint as premature should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 03, 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 (Robin S. Garson, J.), entered May 29, 2009. The order denied defendant’s motion for consolidation, and, upon consolidation, for other relief.

ORDERED that the order is affirmed, with $10 costs.

In this Civil Court, Kings County, action by a provider to recover assigned first-party no-fault benefits, defendant moved to consolidate 82 other cases then pending in the Civil Court, Kings County, all of which were commenced by the same provider against defendant or its various property casualty affiliates and subsidiaries, with this case and, upon consolidation, for other relief. The court denied defendant’s motion, and this appeal by defendant ensued.

In opposition to the motion, plaintiff established that on November 5, 2007, prior to the date that defendant brought the motion that gave rise to the instant appeal, the Civil Court had issued an order granting plaintiff summary judgment in this action and awarding it the sum of $1,078.32, together with applicable statutory interest, attorney’s fees, costs and disbursements. In view of the foregoing, there has been a final adjudication on the merits in this action (see QFI, Inc. v Shirley, 60 AD3d 656 [2009]; Methal v City of New York, 50 AD3d 654 [2008]). Thus, there was no longer a pending action with which other actions could be consolidated pursuant to CPLR 602 (a) (see Fischer v RWSP Realty, LLC, 53 AD3d 595 [2008]). Accordingly, the order denying defendant’s motion for consolidation is affirmed. We pass on no other issue.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 03, 2010

[*1]

Supreme Court, Appellate Term, Second Department, December 3, 2010

APPEARANCES OF COUNSEL

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

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

Memorandum.

Ordered that the judgment is reversed, without costs, so much of the order dated August 8, 2006 as provided that the trial was limited to the issue of whether the charges were excessive is vacated 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order dated August 8, 2006, the Civil Court denied both the motion and the cross motion, found that the only triable issue of fact was whether the fees charged were excessive and stated that the trial was limited to that issue, citing CPLR 3212 (g).

In accordance with the August 8, 2006 order, the nonjury trial began with defendant’s presentation of its defense. Defendant’s attorney sought to present evidence to demonstrate, in effect, that plaintiff was not eligible for reimbursement under the No-Fault Law because plaintiff’s sole shareholder was not licensed or certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 [*2]Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela,{**30 Misc 3d at 44} 4 NY3d 313 [2005]). The Civil Court would not allow defendant to present this evidence because, the court found, it was barred by the August 8, 2006 order, which limited the issue for trial to the excessiveness of the fee schedule. When defendant failed to proffer any evidence as to its fee schedule defense, plaintiff moved for a directed verdict and the court granted plaintiff’s motion. Subsequently, a judgment was entered in favor of plaintiff, and the instant appeal by defendant ensued.

On appeal, defendant argues, in effect, that the August 8, 2006 order improperly barred defendant from asserting its defense that plaintiff was not eligible for reimbursement under the No-Fault Law pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12). Defendant also argues, in effect, that to the extent said order could be interpreted to read that plaintiff did not have to prove its case at trial, the order was improper.

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to “ascertain what facts are not in dispute or are incontrovertible” (CPLR 3212 [g]). Under that circumstance, the court is directed to “make an order specifying such facts,” which will then “be deemed established for all purposes in the action.” In addition, the court is permitted to “make any order as may aid in the disposition of the action.”

Upon a review of the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted “proof of the fact and amount of loss sustained” to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff’s motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).{**30 Misc 3d at 45}

Accordingly, the judgment is reversed, so much of the order dated August 8, 2006 as stated that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

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

—[*1] Randall S. Ferguson, Roslyn Heights, N.Y., for appellant.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, Taylor Raynor appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered January 28, 2010, which directed a hearing on all issues raised in the petition and on her cross motion to dismiss the proceeding as time-barred.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with one bill of costs to the appellant payable by the petitioner, and the cross motion to dismiss the proceeding as time-barred is granted.

The appellant alleged that she was injured as a result of an accident on May 15, 2009, caused by an uninsured vehicle. On June 12, 2009, the appellant’s attorney sent her insurer, the petitioner, Allstate Insurance Company (hereinafter Allstate), a certified letter, return receipt requested, claiming no-fault benefits, uninsured motorist benefits, and supplemental insurance benefits. The letter contained a notice of intention to arbitrate, and stated that unless Allstate applied to stay arbitration within 20 days after receipt of the notice, Allstate would thereafter be precluded from objecting, inter alia, that a valid agreement to arbitrate was not made or complied with. The appellant’s attorney sent Allstate an American Arbitration Association “request for arbitration” form dated November 5, 2009. On November 20, 2009, Allstate commenced this proceeding pursuant to CPLR article 75 to stay arbitration on the ground that the offending vehicle was insured on the date of the accident.

The Supreme Court should have granted the appellant’s cross motion to dismiss the proceeding as time-barred, as the proceeding was not commenced within 20 days of the June 12, 2009, notice of intention to arbitrate (see CPLR 7503 [c]; Matter of Liberty Mut. Ins. Co. v Zacharoudis, 65 AD3d 1353, 1354 [2009]; Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477, 478 [2006]; Matter of CNA [Pough], 99 AD2d 510 [1984]). Florio, J.P., Belen, Lott and Austin, JJ., concur.

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

Epstein, Frankini & Grammatico, Woodbury, N.Y. (Frank J. Marotta of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered April 6, 2010, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile benefits, insurance companies are required to either pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its claim for benefits since the evidence demonstrates that the defendant made a partial payment and a partial denial of the claim within 30 days after receipt thereof (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Furthermore, under the circumstances of this case, the minor factual discrepancy contained in the defendant’s denial of claim form did not invalidate the denial. In addition, the denial was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004], citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]; cf. New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the defendant’s papers in opposition to the motion (see Moore v Stasi, 62 AD3d 764 [2009]; Marshak v Migliore, 60 AD3d 647 [2009]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.