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 (Maureen A. Healy, J.), entered June 19, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted; as so modified, the order is affirmed without costs.

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,
among others, that the services provided were not medically necessary, and plaintiff cross-moved for summary judgment. Defendant appeals, as limited by its brief, from so much of the Civil Court’s order as denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the bills relating to plaintiff’s second, third, fifth, sixth and eighth causes of action on the ground of lack of medical necessity (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]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue in the second, third, fifth and eighth causes of action were not medically necessary. Consequently, defendant established its prima facie entitlement to summary judgment with regard to these causes of action (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 & [*2]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]). However, defendant’s motion papers did not shift the burden with respect to plaintiff’s sixth cause of action since neither of the peer review reports submitted referred to the services set forth in plaintiff’s sixth cause of action.

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro’s affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, 265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]), and the Civil Court should not have considered any facts set forth in that affirmation (see Pisacreta, 265 AD2d 540). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 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 May 15, 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, the Civil Court denied defendant’s unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. This appeal by defendant ensued.

The affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim forms, which denied the claims at issue of the ground of lack of medical necessity, had been timely mailed in accordance with 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]). Defendant also submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the testing at issue. As the affidavit from plaintiff’s health care practitioner, included in defendant’s motion papers, failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), defendant’s motion for summary judgment should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, oftlineP.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]). [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 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 (George J. Silver, J.), entered September 10, 2008. The order granted defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment is denied.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to vacate a default
judgment.

In order to vacate a default judgment on the ground of excusable default, a defendant is required to establish both a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]).
In support of its motion, defendant submitted an affidavit from a claims adjuster employed by defendant’s third-party claims administrator, who averred that her company had become aware of this action on or about January 26, 2007 when it had received copies of the summons and complaint. The administrator tried to locate the underlying claim file but was delayed in doing so because the file was in the process of being transferred to the insurance company that had just purchased the subject insurance policy from defendant. The administrator finally obtained the claim file on or about August 1, 2007 and only then assigned counsel, who served plaintiff with an answer on August 15, 2007.

Based on the above facts, defendant failed to proffer a reasonable excuse for its default. A party in jeopardy of defaulting for nonappearance in an action may request an extension of time to file its answer upon good cause shown (see CPLR 2004). Failure to move pursuant to CPLR 2004 for an extension of time to file an answer may eviscerate the grounds for a reasonable excuse (cf. Builders Mechanic Co. v Claiborne, 277 AD2d 193 [2000]; Weiss v Kahan, 209 AD2d 611, 612 [1994]). Here, defendant was served with the summons and complaint on January 15, 2007 and its third-party claims administrator received a copy of the summons and complaint on January 26, 2007. Thereafter, both defendant and its third-party [*2]claims administrator knowingly failed to take any action with respect to this lawsuit for approximately eight months. In the interim, plaintiff applied for a default judgment in March 2007, and a default judgment was entered on September 6, 2007.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 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 (Alice Fisher Rubin, J.), entered August 6, 2008. The order granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion for partial summary judgment.

ORDERED that the order is modified by providing that plaintiff’s motion for partial summary judgment is denied and, as so modified, affirmed without costs on condition that defendant, within 60 days of service upon it of a copy of this decision and the order entered hereon with notice of entry, serve upon plaintiff and file with the Clerk of the Civil Court an affidavit of Carol Keyes, identical to the affidavit submitted previously by defendant, accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event that defendant fails to duly serve and file such an affidavit, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment seeking to recover on the claims it submitted for healthcare services rendered to assignor Orlando Espinal. Defendant cross-moved for summary judgment seeking dismissal of the complaint insofar as it sought to recover for services rendered to assignor Espinal. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals, arguing that its cross motion should have been granted or, in the alternative, that plaintiff’s motion should have been denied because defendant raised a triable issue of fact.

Defendant argues first that the complaint should be dismissed as to the subject claims, which were submitted on January 14, 2002, because defendant’s assignor agreed to revoke the assignment in a December 2002 stipulation. Regardless of whether this defense was properly presented, it fails as a matter of law because “the assignor or legal representative of the assignor shall not unilaterally revoke the assignment after the services for which the assignment was originally executed were rendered” (Insurance Department Regulations [11 NYCRR] § 65-3.11 [d]). [*2]

Defendant’s second argument is that plaintiff should not recover for services rendered to assignor Espinal because he made material misrepresentations in order to obtain the subject New Jersey insurance policy. While New York law does not allow for the retroactive cancellation of an automobile insurance policy (see Vehicle and Traffic Law § 313), New Jersey law does allow for such retroactive rescission for a material misrepresentation at the inception of the policy (see Rutgers Cas. Ins. Co. v LaCroix, 194 NJ 515, 946 A2d 1027 [2008]), and, had there been a cancellation of the subject insurance policy, New Jersey law would properly be applied (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). However, defendant has not demonstrated that it cancelled the subject insurance policy.

On the other hand, defendant’s employee’s assertion that the subject insurance policy was obtained by fraud and/or material misrepresentations is a permissible affirmative defense that, if proved, precludes any recovery by the insured or a health care provider who accepts an assignment of the insured’s no-fault benefits (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d & 11th Jud Dists 2006]). We find that while the documents attached to defendant’s cross motion are not a sufficient basis for an award of summary judgment dismissing the complaint as to the claims submitted for services rendered to assignor Espinal, they are sufficient to raise a triable issue of fact as to whether the subject insurance policy was fraudulently obtained.

With respect to plaintiff’s timely objection to the form of defendant’s employee’s affidavit, we note that while defendant permissibly sought to cure this defect in its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), defendant submitted a certificate of authenticity rather than the required certificate of conformity (see CPLR 2309 [c]; Real Property Law § 299-a [1]; see also Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [Civ Ct, Queens County 2002]). Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, the order is modified by providing that plaintiff’s motion for partial summary judgment is denied on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]). Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: November 19, 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 (Peter Paul Sweeney, J.), entered August 7, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed without costs on condition that defendant, within 60 days of service upon it of a copy of this decision and the order entered hereon with notice of entry, serve upon plaintiff and file with the Clerk of the Civil Court, Kings County, an affidavit of Maryanne Gentile, identical to the affidavit submitted by defendant in this case, accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of Connecticut. In the event that defendant fails to duly serve and file such an affidavit, the order is reversed without costs, defendant’s motion for summary judgment dismissing the complaint is denied and the matter is remitted to the Civil Court for all further proceedings.

This action by a provider to recover assigned first-party no-fault benefits was commenced in February 2005. Defendant moved for summary judgment dismissing the complaint and attached the affidavit of its claims representative, who stated that defendant had received the complaint on March 1, 2005 and had received the bills at issue for the first time, by facsimile, on March 17, 2005. Defendant also annexed the proof of mailing that plaintiff had submitted to defendant along with the bills. The claims representative stated that the proof of mailing indicated that the claim forms had previously been mailed to an address at which defendant has never been located. In opposition to defendant’s motion, plaintiff argued, among other things, that the acknowledgment accompanying defendant’s affidavit did not comply with CPLR 2309 (c). Defendant submitted reply papers, including a certificate of conformity. The Civil Court granted defendant’s motion, finding that defendant’s failure to submit a certificate of conformity had been cured and that the action was premature since defendant had not received the claim forms at issue until after the lawsuit had been commenced.

Under these circumstances, we find that defendant’s submissions support the determination that defendant had not received any claim forms prior to the commencement of the [*2]action. With respect to plaintiff’s timely objection to the form of defendant’s claims representative’s affidavit, we note that while defendant permissibly sought to cure this defect by annexing a certificate of conformity to its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), the document annexed to defendant’s reply papers was not made by an authorized person pursuant to Real Property Law § 299-a. Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, we affirm the order on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: November 19, 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 (Alice Fisher Rubin, J.), entered April 10, 2008. The order denied defendant’s motion to vacate an order entered May 23, 2007 granting plaintiff’s prior motion for summary judgment on default, and, in effect, the judgment entered pursuant thereto.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its motion to vacate a prior order granting plaintiff’s motion for summary judgment upon defendant’s failure to file opposition papers. A judgment was subsequently entered pursuant to the underlying order.

“Where a party fails to submit written opposition to a motion, an order granting the motion is considered to have been entered on default and is not appealable, even if the party orally argued the motion” (Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists 2004]). In this case, defendant appropriately moved to vacate the order entered on default (see id.).

To vacate an order upon default, the movant is required to establish both a reasonable excuse for its default and a meritorious defense to the motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]; A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). A court may exercise its discretion and accept a claim of law office failure as a reasonable excuse (see CPLR 2005), provided the facts submitted in support thereof, in evidentiary form, are sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 443 [2004]; see Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). Defendant’s excuse of law office failure was not reasonable under the circumstances presented. Defendant failed to adequately explain why it did not re-file its opposition papers in the correct Civil Court part after the court clerk had notified defendant of its filing error and had provided it with instructions on [*2]how to properly re-file. Accordingly, the order of the Civil Court is affirmed.

Rios, J.P., Pesce, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the order entered April 10, 2008 and grant defendant’s motion to vacate the order entered May 23, 2007 and, in effect, the judgment entered pursuant thereto, in the following memorandum:

Contrary to the majority, I find that defendant has sufficiently established an excusable default and that there was no prejudice to plaintiff in any sense of the word. Defendant had agreed with plaintiff and the Civil Court to both serve and file a copy of its opposition papers by a certain date.

Although defendant had agreed to submit its opposition by a certain date, its opposition papers were not served and filed until after the agreed-upon date, which was nevertheless still prior to the return date of the motion. There was more than ample time for plaintiff to reply to those opposing papers prior to the return date if plaintiff so chose. Plaintiff did not.

I find that defendant’s failure to submit the opposition papers by the agreed-upon date was de minimis and without any prejudice to plaintiff. It also appears that defendant mistakenly filed the court’s copy in the same calendar part as plaintiff’s motion. I do not find this ministerial error to be grievous fault, and it should not be treated so severely.

It should be further noted that the affidavit of plaintiff’s third-party billing manager failed to establish that the affiant had sufficient knowledge of plaintiff’s billing procedures to warrant those bills being considered as evidence of the treatment allegedly performed. Plaintiff also failed to properly establish that it had mailed the bills to defendant in the first instance (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]). This was more than sufficient to establish defendant’s meritorious defense.
Decision Date: November 17, 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 July 1, 2009, deemed from a judgment of the same court, entered August 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 1, 2009 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

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

Contrary to plaintiff’s contention, the affidavit and peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the testing performed on plaintiff’s assignor. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the Civil Court properly granted defendant’s cross motion for summary judgment (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, the judgment is affirmed. [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 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 June 19, 2009. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to vacate the notice of trial, sua sponte compelled plaintiff to respond to defendant’s discovery demands, implicitly denied the branch of plaintiff’s cross motion seeking a protective order, and denied plaintiff’s motion for summary judgment.

ORDERED that, on the court’s own motion, the notice of appeal from so much of the order as, sua sponte, compelled plaintiff to respond to defendant’s discovery demands is treated as an application for leave to appeal from that portion of the order,
and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further,

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant served an answer which was accompanied by discovery demands. Although plaintiff had not responded to said demands, it filed a notice of trial and a certificate of readiness. A month thereafter, defendant moved to vacate the notice of trial on the ground that the certificate of readiness contained erroneous statements that discovery had been completed. Plaintiff cross-moved for, among other things, a protective order, and subsequently moved for summary judgment. The Civil Court granted defendant’s motion and, sua sponte, compelled plaintiff to respond to defendant’s discovery demands, thereby implicitly denying the branch of plaintiff’s cross motion seeking a protective order. The court also denied plaintiff’s motion for summary judgment. The instant appeal by plaintiff ensued.

Defendant’s timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) was properly granted inasmuch as the certificate of readiness contained erroneous statements 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 [*2]Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

CPLR 3103 (a) empowers a court to issue a protective order “at any time.” The failure of a party to promptly move for a protective order after receipt of discovery demands, however, is more likely to be resolved against the movant who provided no objections and was tardy with the motion (see B.Y. M.D., P.C. v Lancer Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50493[U] [App Term, 9th & 10th Jud Dists 2010]; Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). The issuance of a protective order is within the broad discretion of the court and dilatory conduct can result in a court’s refusal to exercise its powers under CPLR 3103. Since plaintiff did not proffer a reasonable excuse for its delay in moving for a protective order, the Civil Court did not improvidently exercise its discretion when it denied the branch of plaintiff’s cross motion seeking such relief.

Plaintiff’s motion for summary judgment was supported by an affidavit of the president of a third-party billing company, who did not demonstrate that he possessed personal knowledge of plaintiff’s business practices and procedures to establish that the documents submitted in support of plaintiff’s motion were admissible pursuant to CPLR 4518. Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment (see Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132[A], 2010 NY Slip Op 50065[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 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]).

Plaintiff’s remaining contentions are unpreserved for appellate review or lack merit. Accordingly, the order is affirmed.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 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 (Kathy J. King, J.), entered August 11, 2008. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition.

ORDERED that the order is reversed, without costs, defendant’s cross motion to compel plaintiff to produce Dr. Ronald Collins for a deposition is granted, plaintiff is directed to produce Dr. Collins for a deposition within 60 days of the date of the order entered hereon, or on such other date to which the parties shall agree, and plaintiff’s
motion for summary judgment is denied without prejudice to renewal upon the completion of Dr. Collins’ deposition.

In this action by a provider to recover assigned first-party no-fault benefits, defendant sought various forms of discovery. Plaintiff subsequently moved for summary judgment. Defendant opposed the motion and cross-moved to compel plaintiff to produce Dr. Ronald Collins, plaintiff’s owner, for a deposition. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. The instant appeal by defendant ensued.

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In opposition to plaintiff’s motion, and in support of its cross motion to compel discovery, defendant established that facts may exist which are essential to oppose plaintiff’s summary judgment motion but which could not then be stated (see CPLR 3212 [f]). Defendant indicated that it could not set forth sufficient facts to establish one of its defenses, to wit, plaintiff’s alleged fraudulent incorporation (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s notice to produce Dr. Collins for a deposition. In addition, defendant established its entitlement to depose Dr. Collins (see CPLR 3101 [a]; RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sharma Med. Servs., P.C. v [*2]Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Accordingly, plaintiff’s motion for summary judgment is denied without prejudice to renewal following the completion of Dr. Collins’ deposition, and defendant’s cross motion for an order compelling plaintiff to produce Dr. Collins for a deposition is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated July 6, 2009. The order denied plaintiffs’ motion for summary judgment and held defendant’s cross motion for summary judgment dismissing the complaint in abeyance pending plaintiffs’ submission of an amended complaint.

ORDERED that the order is reversed, without costs, and plaintiffs’ motion and defendant’s cross motion are remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination
of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant defendant’s cross motion dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied plaintiffs’ motion on the ground that plaintiffs’ complaint was insufficient pursuant to CPLR 3013 and 3014. The court ordered plaintiffs to submit an amended complaint, and held defendant’s cross motion in abeyance pending such resubmission. The instant appeal by plaintiffs ensued.

Defendant’s proof was sufficient to raise a question of fact as to whether plaintiffs’ assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v [*2]American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order is reversed and plaintiffs’ motion and defendant’s cross motion are remitted to the District Court to be held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law.

We note that, while the claims of the five plaintiffs were pleaded under one cause of action in the complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010