[*1]

Civil Court of the City of New York, Bronx County, April 7, 2010

APPEARANCES OF COUNSEL

Ferdinand Diaz for claimant. Jaffe & Koumourdas (Peter Coates of counsel), for defendant.

{**28 Misc 3d at 861} OPINION OF THE COURT

Fernando Tapia, J.

In these nonpayment of no-fault insurance benefits cases before the Commercial Small Claims Part, this court, after oral testimony and review of submitted cases/statutes from claimant, hereby dismisses these cases without prejudice.

Does the Commercial Small Claims Part have subject matter jurisdiction to try a no-fault case when a specific No-Fault Part exists within New York City Civil Court? This court finds that it does not. Thus, under New York City Civil Court Act § 1805-A,^[FN1] the above-captioned case is transferred to the No-Fault Part for proper adjudication.

I. Factual Background

Claimant is an assignee for an individual patient who sought health care treatment from a motor vehicle accident. Claimant’s representative is not an attorney. On or about December 10, 2009 claimant’s representative appeared before the Commercial Small Claims Part to recover [*2]no-fault benefits from defendant Countrywide Insurance, which is represented by counsel.^[FN2]

Claimant seeks $4,365.52 and $5,000 from defendant for unpaid no-fault bills. Defendant argues that the cases should be dismissed for lack of subject matter jurisdiction because claimant became an assignee of the claim that originally belonged to an individual, and not to a commercial entity. Claimant’s representative counters with a First Department Appellate Term case (claimant’s representative relies on East End Med., P.C. v Oxford Health Ins., Inc. [12 Misc 3d 135(A), 2006 NY Slip Op 51229(U) (App Term, 1st Dept 2006)], which will be discussed later) which ruled in favor of the plaintiff, stating that the claim could be heard in the Small Claims Part.

II. The Small Claims Part: Truly a “People’s Court”

A. Brief Discussion on the Small Claims Part

Small claims court is an informal court that is part of Civil Court. (See A Guide to Small Claims Court, Unified Court System; see also Siegel, NY Prac § 581 [4th ed].) As such, there{**28 Misc 3d at 862} is no requisite motion practice involved. In fact, motion practice is discouraged in small claims. (See Weiner v Tel Aviv Car & Limousine Serv., 141 Misc 2d 339, 341 [Civ Ct, NY County 1988] [where movant sought to dismiss pro se claimant’s case, the Civil Court held that the Small Claims Part need not entertain a pretrial motion, absent extraordinary circumstances].)

Under CCA 1809 (1) (“Procedures relating to corporations, associations, insurers and assignees”),

“[n]o corporation, except a municipal corporation, public benefit corporation, school district or school district public library wholly or partially within the municipal corporate limit, no partnership, or association and no assignee of any small claim shall institute an action or proceeding under this article, nor shall this article apply to any claim or cause of action brought by an insurer in its own name or in the name of its insured whether before or after payment to the insured on the policy” (emphasis added).

The purpose of CCA 1809 (1) is to keep businesses from using the Small Claims Part as claimants. (See Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, CCA 1809, 2010 Electronic Update.) To address whether businesses can use the Small Claims Part, then, CCA 1809-A was enacted by the New York State Legislature. A discussion follows.

B. CCA Article 18-A: Legislative Enactment Governing the

1. Legislative History and Intent of Article 18-A

In 1987 the New York Legislature enacted CCA article 18-A, which outlines the [*3]jurisdictional parameters for commercial cases in the Small Claims Part.^[FN3]

Under CCA 1809-A (“Procedures relating to corporations, associations, insurers and assignees”), “[a]ny corporation . . . which has its principal office in the city of New York and an assignee of any commercial claim may institute an action or proceeding under this article” (CCA 1809-A [a] [emphasis added]).

Furthermore, under CCA 1801-A (“Commercial claims defined”), ” ‘commercial claim’ . . . shall mean and include any cause of action for money only not in excess of the maximum amount permitted for a small claim in the small claims part of{**28 Misc 3d at 863} the court . . . provided that . . . the claimant is a corporation, partnership or association.” (CCA 1801-A [a].)^[FN4]

Commercial litigants can therefore initiate suit in the Commercial Small Claims Part. The Unified Court System also has a booklet titled A Guide for the Use of the Commercial Claims Part which is available to the public.

Article 18-A has been criticized for simply paralleling the existing article 18 instead of being an independently distinct rubric for commercial claims being brought to the Small Claims Part. (See Siegel, General Practice Commentary on “Commercial” Small Claims Article, McKinney’s Cons Laws of NY, Book 29A, UCCA 1801-A, at 815-816.) Nevertheless, there are relevant sections germane to the cases at hand that explain why the Commercial Small Claims Part is not the proper venue.

2. Implications of Article 18-A Regarding the Above-Captioned Cases

As mentioned earlier, motion practice is discouraged in small claims. No-fault matters, on the other hand, command motion practice because of their complicated nature.^[FN5] It therefore follows that these two no-fault cases be transferred to the No-Fault Part for proper adjudication in the interest of justice, so that the assignee can be accommodated accordingly.

According to CCA 1802-A (“Parts for the determination of commercial claims established”), the Commercial Small Claims Part “[s]hall not be exclusive of but shall be alternative to the procedure . . . with respect to actions commenced in the court by the service of a summons.” That is, Commercial Small Claims Part is to be used as an alternative forum, not an exclusive one.

In the cases at hand, the most relevant section is CCA 1809-A (“Procedures relating to corporations, associations, insurers and assignees”), which states that no individuals or corporations shall take an assignment of any claim or demand, with the intent and for the purpose of bringing an action or proceeding in the Commercial Small Claims Part (CCA 1809-A [b]). As assignment by an individual to a corporation is neither a small claim nor a commercial claim because it was assigned; neither is it a commercial claim because it was not originally commercial{**28 Misc 3d at 864} when the [*4]assignment was made.^[FN6] This effectively precludes the bringing of a common medical benefits case in the Small Claims Part.

Thus, an assignee may bring a case in the Commercial Small Claims Part, as long as it does not exceed five such suits per month, and as long as its main reason is to have the case tried on its merits, and not as a procedural legal strategy to get a favorable outcome from a forum such as small claims.^[FN7]

Here, claimant relies on East End Med., P.C. v Oxford Health Ins., Inc. (12 Misc 3d 135[A], 2006 NY Slip Op 51229[U]) to put forth its argument that the Commercial Small Claims Part is the proper forum to resolve these cases. In East End Medical, the health care provider (the appellant) sought to recover no-fault insurance benefits from 13 of its patient assignors in this consolidated action. The majority opinion ruled that the appellant’s no-fault case was prematurely dismissed because the merits were not seriously considered. (2006 NY Slip Op 51229[U] at *1.)

It is, however, the cursory sua sponte discussion of subject matter jurisdiction in the dissent that ignites the relevance of East End Medical with respect to the case at hand.^[FN8] According to the dissent, because the claimant’s case was not originally “commercial” as defined pursuant to CCA 1809-A,^[FN9] it could not have been brought in the Commercial Small Claims Part under CCA 1809-A. (2006 NY Slip Op 51229[U] at *2.)

This court, therefore, agrees with the dissent that where there is a more proper forum that specifically addresses claims by{**28 Misc 3d at 865} health care providers for nonpayment of basic economic loss claims, it is that forum that should be regarded as having subject matter jurisdiction. The proper forum with jurisdiction to entertain the type of claim at issue in the instant matter, however, presupposes the existence of a statute that permits through logical reasoning the creation of a judicial forum to most effectively adjudicate no-fault medical benefits claims.

III. Insurance Law Article 51: New York State Comprehensive Automobile Insurance Reparations Act (Also Known as the No-Fault Law)

The No-Fault Insurance Law was created in 1973 for the express purpose of promoting “prompt resolution of injury claims, limit[ing] cost to consumers and alleviat[ing] unnecessary burdens on the courts.” (Byrne v Oester Trucking Inc., 386 F Supp 2d 386, 391 [SD NY 2005], citing [*5]Pommells v Perez, 4 NY3d 566 [2005].)

At the crux of no-fault insurance litigation is the issue of whether the injured party sustained a “serious injury” as defined by Insurance Law § 5102 (d). This “serious injury” threshold, as defined, “provides that in order for a victim of an automobile accident to bring an action for ‘non-economic loss,’ [such as] pain and suffering, he or she must demonstrate ‘serious injury’ [resulting from the accident].” (Lamana v Jankowski, 13 AD3d 134, 136 [1st Dept 2004].)

A determination that the “serious injury” threshold has not been met, however, does not preclude a no-fault claimant from recovering any basic economic loss incurred as a result of a motor vehicle accident (MVA). With a limit of up to $50,000 per person, a claimant can seek to recover for medical services, lost wages, and other reasonable and necessary expenses. It is these types of claims that constitute the overwhelming majority of the No-Fault Part Civil Court case calendar.

In an attempt to handle these claims fairly and expeditiously pursuant to the spirit and letter of the No-Fault Law, a “No-Fault Part” was created in Bronx Civil Court. The No-Fault Part is a specialized court created in Bronx County^[FN10] to handle no-fault basic economic loss claims. This court would have the exclusive authority for entertaining all motions and trials pertaining to these claims.

The No-Fault Part has greatly facilitated the removal of the vast majority of MVA claims from the sphere of common-law{**28 Misc 3d at 866} tort litigation into a quick, sure and efficient system for obtaining compensation for economic loss suffered from a car accident.^[FN11] The nature of the claims exclusively involves payment demands by health care providers (always represented by counsel), as assignees, for health care services and treatment rendered parties (assignors) involved in MVAs.

Likewise, the defendants are exclusively insurance carriers and also invariably represented by counsel. In addition to representation by counsel, limited discovery is allowed in the No-Fault Part. The daily court calendar is divided such that during the morning calendar call, all procedural and nonprocedural motions are heard and orally argued, if not taken on submission. In the afternoon, all bench trials are conducted.^[FN12] This approach, suffice it to say, has generated a fair, uniform, and expeditious adjudication of an otherwise crushing volume of [*6]no-fault cases.

The court’s singular focus on medical benefits claims has allowed judges, attorneys, and court staff to develop the No-Fault Part into an efficient mechanism for the adjudication of these claims. This efficiency is predicated first upon a narrow body of law effectively interpreted and applied by a judge with the sole responsibility of adjudicating medical benefits claims that, secondly, are handled by experienced counsel on a daily basis in an adversarial, but nonconfrontational courtroom setting in the disposition of these claims. The functional structure of the No-Fault Part is consistent, therefore, with one of the No-Fault Law’s goals: the expeditious handling of basic economic loss claims. From a commonsense policy standpoint, the No-Fault{**28 Misc 3d at 867} Part is the proper forum to bring medical benefits claims actions.

IV. Conclusion

In sum, these two cases at hand are not “commercial” per se, based on CCA 1809 (1), as assignees are barred from initiating suit in the Small Claims Part. Instead, they should be adjudicated in the No-Fault Part. Wherefore these cases are hereby dismissed without prejudice so that they can be transferred to the No-Fault Part, which is the proper forum.

Footnotes

Footnote 1: Pursuant to New York City Civil Court Act § 1805-A (b), “[t]he court shall have power to transfer any commercial claim or claims to any other part of the court upon such terms as the rules may provide, and proceed to hear the same according to the usual practice and procedure applicable to other parts of the court.”

Footnote 2: Peter Coates of Jaffe and Koumourdas appeared on the record.

Footnote 3: This took effect on January 1, 1991.

Footnote 4: The amount is currently $5,000.

Footnote 5: An example of a small claims case is where a store customer sues a furniture store for defective furniture. Such a case does not require motion practice, unlike no-fault cases where expert testimony of health care professionals is generally part of proving a plaintiff’s case as to the medical necessity of a treatment or service.

Footnote 6: Dunrite Auto Body & Motors v Liberty Mut. Ins. Co., 160 Misc 2d 168, 171 (Suffolk Dist Ct 1993); see also Arthur F. Engoron, Small Claims Manual: A Guide to Small Claims Litigation in the New York State Courts, at 35 (5th ed 2001).

Footnote 7: To start a commercial claims case, the commercial claimant must give a statement to the commercial claims court clerk as to why she/he is starting a lawsuit. The claimant must also pay a $20 filing fee to the clerk, plus the cost of mailing the notice of the lawsuit to the defendant. The claimant must also file a verification that no more than five commercial claims have been initiated by that claimant anywhere in New York State during a calendar month. (See A Guide for the Use of the Commercial Claims Part, at 2 [1996].)

Footnote 8: In East End Medical, subject matter jurisdiction was neither raised nor briefed by the party on appeal. The Appellate Term therefore broached the issue on its own.

Footnote 9: “Commercial” means any corporation, partnership, or association with its principal office in New York State can initiate suit in the Commercial Small Claims Part, so long as the entity is not a collection agency or entity that take assignments of debts. (See CCA 1809-A; see also A Guide for the Use of the Commercial Claims Part, at 1 n 1 [1996].)

Footnote 10: Both Brooklyn and Queens Civil Court have created a similar No-Fault Part to accommodate such cases.

Footnote 11: The purpose of no-fault auto insurance is to encourage expeditious resolution of claims without the necessity of imposing an additional burden on courts. (See Matter of Gretka [General Acc. Group], 100 Misc 2d 170 [Sup Ct, Erie County 1979].)

Benefits to be paid on a “no-fault” basis were adopted by the New York State Legislature as a means of reducing the caseload of the courts and to provide a fair and adequate way of recovering for those injured in auto accidents. (See Gamble v Randolph, 91 Misc 2d 436 [Rochester City Ct 1977].)

The object of Insurance Law of 1939 § 670 et seq. was to assure prompt compensation to accident victims of substantially all of their economic loss without regard to fault. (See Matter of Criterion Ins. Co. of Wash., D.C. [Commercial Union Assur. Co.], 89 Misc 2d 36 [Sup Ct, Nassau County 1976].) This same tenet is echoed in the current No-Fault Law, along with Ohio Cas. Ins. Co. v Continental Ins. Co. (101 Misc 2d 452 [Sup Ct, Erie County 1979]).

Footnote 12: Although nonjury trials are officially held during the morning calendar call and motions during the afternoon calendar call, most motions are able to be resolved in the mornings as well. If not, then they are resolved in the afternoon calendar.

[*1]

District Court of Suffolk County, Third District, April 7, 2010

APPEARANCES OF COUNSEL

Law Offices of Karen C. Dodson, Melville, for defendant. Rapuzzi, Palumbo & Rosenberger, P.C., Wantagh, for plaintiff.

{**27 Misc 3d at 929} OPINION OF THE COURT

C. Stephen Hackeling, J.

Ordered that the defendant’s application for summary judgment is granted in part and denied in part. This action is for medical provider first-party no-fault benefits. Plaintiff raises the threshold issue of whether this application is timely, and asserts that it is procedurally barred as it was made later than 120 days following the filing of the notice of trial.

Summary Judgment Procedural Distinction Supreme Versus District Court

The 120-day requirement is found in CPLR 3212 (a). Pursuant to this statute, applications for summary judgment relief must be made no later than 120 days after filing of the “note of issue,” unless the court has set an earlier date. The note of issue is part of the calendar practice of the supreme and county courts. It is not utilized in District Court practice, in which a “notice of trial” is employed (compare CPLR 3402 and 22 NYCRR 202.21, with UDCA 1301 and 22 NYCRR 212.17 [a]). In enacting the 120-day requirement for summary judgment motions in supreme and county courts, the legislature chose not to enact an amendment to the Uniform District Court Act or to otherwise expressly provide that the reference in CPLR 3212 (a) to the note of issue should be treated as a reference to the notice of trial. The legislature’s election to differentiate between a “notice of trial” and a “note of issue” in fashioning its 120-day section 3212 (a) limitation must be respected. In construing New York’s statutes, the legislature has proscribed that the court follow the Latin maxim “expressio unius est exclusio alterius,” i.e., “where a law expressly describes a particular act . . . an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240; see also Doyle v Gordon, 158 NYS2d 248 [Sup Ct, NY County 1954].)

Additionally, although UDCA 1001 reads, in part, that “[m]otion practice in [district] court, including time provisions for the making . . . of motions . . . shall be governed by the CPLR,” this provision is not a basis for applying the 120-day{**27 Misc 3d at 930} time limitation of CPLR 3212 (a) to summary judgment motions in this court, as the latter statute only refers to the note of issue. If ever UDCA 1301 and the court rules are amended to require a note of issue instead of a notice of trial, the UDCA 1001 120-day limitation found in CPLR 3212 (a) will apply here. At present, however, the legislature appears to have deemed the litigation delays once existing in supreme and county court calendar practice (which it addressed in 1996 by adding the 120-day limitation to CPLR 3212 [a]) to be of insufficient magnitude in District Court to apply the limitation here. The court is also persuaded by Judge Straniere’s opinion in Panicker v Northfield Sav. Bank (12 Misc 3d 1153[A], 2006 NY Slip Op 50880[U] [Civ Ct, Richmond County 2006]), holding that the 120-day limitation of CPLR 3212 (a) is inapplicable to Civil Court summary judgment motions. Accordingly, the defendant’s application is not barred as untimely, and the court will consider it upon the merits.

Summary Judgment on the Merits

The proponent of an application for summary judgment must make a prima facie showing of its entitlement to judgment as a matter of law. Should it fail to do so, its motion must be denied. However, once it makes a prima facie showing, but not until then, the party opposing summary judgment must show the existence of factual issues requiring trial. If the opposing party makes this showing then, again, the motion must be denied. When the opposing party has not shown the existence of factual issues for trial, the proponent having established its prima facie case, summary judgment in favor of the proponent is appropriate (see CPLR 3212 [b]). [*3]

Contrary to plaintiff’s position, the affidavits of defendant’s litigation examiner and mail service establish that defendant made partial payment and partial denial of plaintiff’s claim in timely fashion. Taken together, these affidavits create a presumption of mailing by “proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.” (See Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001].) The plaintiff has submitted no evidentiary proof to rebut this presumption.

Plaintiff, a health services provider, rendered his services to his assignor over 44 days from January 26, 2000 to May 23, 2000. The dispute with respect to the partial denial of much of plaintiff’s claim concerns defendant’s application of ground rule{**27 Misc 3d at 931} 11 of the medical fee schedule, which limits the payment for multiple procedures and modalities performed on the same day to the services plaintiff billed using current procedural terminology (CPT) codes 97010, 97032 and 97250. Defendant has made a prima facie showing that its interpretation and application of rule 11 is correct, and in its opposition plaintiff does not offer an adequate challenge to defendant’s interpretation. Defendant’s motion for summary judgment dismissing these portions of plaintiff’s claims is granted.

Defendant also disallowed a portion of plaintiff’s claims for March 13, 2000 and April 17, 2000 services under CPT code 99204 (code used by defendant in denying claim) or 99205 (code used by plaintiff in submitting claim). Whichever code is correct, both of them apply to office or other outpatient visits of new patients for purposes of evaluation and management. As the assignor was not a new patient, the denial of these portions of plaintiff’s claim was proper. The defense application for summary judgment dismissing these items of plaintiff’s claim is granted.

Part of plaintiff’s claim for January 31, 2000 was under CPT code 99213. Defendant has demonstrated that the computation of the amount for the service provided was incorrect, that the amount it paid was the correct amount, and that the plaintiff has not challenged defendant’s showing. Summary judgment dismissing this part of plaintiff’s claim is also granted.

The remaining disputes concern parts of the claim for services provided on January 27, 2000 and May 23, 2000. For January 27, 2000, plaintiff submitted its claim under CPT code 99244, which applies to office consultations. Defendant deemed the correct CPT code to be 99204, which applies to office visits, and made partial payment which accorded with the amount payable using CPT code 99204. Similarly, for May 23, 2000, plaintiff submitted a claim using CPT code 99214, which is for office or other outpatient visits that involve medical decisionmaking of moderate complexity. Defendant based its payment on CPT code 99213, for office or other outpatient visits involving medical decisionmaking of low complexity.

The defendant has submitted the affidavit of its certified professional coder in support of its application. In explaining her determination that CPT code 99204 should apply instead of CPT code 99244, the coder makes a conclusory allegation that “[b]ased on the submitted documentation, the 99204 code better reflects the service rendered” (affidavit of Jeanne [*4]MacLeod{**27 Misc 3d at 932}-Lang, Dec. 1, 2009, ¶ 12). Nothing is offered to explain her conclusion that 99204 is the better code. No mention is made at all of the determination to apply CPT code 99213 instead of 99214 for the May 23, 2000 claim. Defendant has failed to establish a prima facie case that it properly paid plaintiff for these two services, and so summary judgment with respect to them is inappropriate (CPLR 3212 [b]).

Accordingly, defendant’s motion for summary judgment is granted except for the following portions of plaintiff’s claim, described as they appear on plaintiff’s claim forms: (1) January 27, 2000, office, initial consultation visit, 99244, $182.18, and (2) May 23, 2000, office, follow-up visit, 99214, $71.

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 February 4, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment, finding that defendant had failed to demonstrate that the denial of claim form, which denied plaintiff’s claim on the ground of lack of medical necessity, had been timely mailed. The instant appeal by defendant ensued.

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form since the affidavit contained a detailed description, based on the affiant’s personal knowledge, of defendant’s standard office practices or procedures used to ensure that the denial was properly addressed and mailed (see 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]). The papers submitted in support of defendant’s motion included a sworn peer review report by defendant’s psychologist, which set forth a factual basis and medical rationale for his opinion that there was a lack of medical necessity for the psychological services at issue (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). [*2]In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (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]), and the burden shifted to plaintiff to raise a triable issue of fact regarding medical necessity.

In opposition to defendant’s motion, plaintiff submitted, among other things, a letter of medical necessity sworn to by the psychologist who had examined plaintiff’s assignor, which was sufficient to raise a triable issue of fact as to the medical necessity of the services rendered (see A.B. Med. Servs., PLLC, 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U]). In view of the existence of a triable issue of fact, defendant’s motion for summary judgment was properly denied and plaintiff’s cross motion should have been denied. The order is modified accordingly.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: April 02, 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 May 12, 2008. The order granted defendant’s motion to vacate a judgment and the underlying order granting plaintiff’s prior motion for summary judgment on default, and, upon such vacatur, in effect, granted defendant’s prior cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant failed to appear on the return date of the motion, and plaintiff’s motion was granted on default. A judgment was subsequently entered pursuant to the order. Thereafter, defendant moved to vacate the default judgment and the underlying order. The Civil Court granted defendant’s motion and, upon vacating the judgment and order, in effect granted defendant’s prior cross motion for summary judgment dismissing the complaint.

In order to vacate the judgment and underlying order pursuant to CPLR 5015 (a) (1), defendant was required to establish both a reasonable excuse for its default and a meritorious defense to the action (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant provided a reasonable excuse for its default in appearing by its attorney’s affirmation, which sufficiently justified the default and included a detailed explanation of the oversight (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; cf. A.B. Med. Servs., P.C. v GLI Corp. Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant [*2]also established a meritorious defense to the action, as the affidavit of its claims specialist showed that defendant had timely and properly mailed the NF-10 denial of claim forms and verification request, by describing, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices and procedures used to ensure that such documents were properly addressed and mailed (see 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]). In addition, affirmed peer review reports were annexed to defendant’s cross motion, which made a prima facie showing that the services provided were not medically necessary. Plaintiff failed to rebut this showing, and its remaining contentions lack merit.

Consequently, the Civil Court did not improvidently exercise its discretion in vacating the default judgment and order, and, upon vacatur, properly, in effect, granted defendant’s prior cross motion for summary judgment dismissing the complaint (see e.g. Vista Surgical Supplies, Inc. v GEICO Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50739[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]). Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 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 (Diane A. Lebedeff, J.), entered June 23, 2008. The judgment, entered upon an order of the same court entered June 19, 2008 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the sum of $8,153.54.

ORDERED that the judgment is reversed without costs, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, and this appeal by defendant ensued.

Since the affidavit of defendant’s claims representative conceded receipt of the claims in question (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. [*2]Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]) and the affidavit of plaintiff’s billing manager established 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]), plaintiff’s prima facie entitlement to summary judgment was established.

The affidavit of defendant’s no-fault litigation supervisor sufficiently established the timely mailing of the NF-10 denial of claim forms and verification requests since it described, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices or procedures used to ensure that said documents were properly mailed (see 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]).

In regard to plaintiff’s second, fourth, fifth, sixth and ninth causes of action, as well as so much of the third cause of action as sought to recover upon a $30.80 claim, defendant timely mailed its initial requests for verification (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]), and plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on either the 29th or 30th day after the initial verification requests, but prior to the expiration of the full 30-day period within which plaintiff was required to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2d Dept 2009]), “the 30-day period within which the defendant was required to pay or deny the claim[s] did not commence to run [and] plaintiff’s action is premature” (id. at 865 [citations omitted]). As a result, defendant was entitled to summary judgment dismissing these causes of action.

Defendant also established that it had timely denied the two $182.84 and three $523.20 claims on the ground that the services for which payment was sought were part of another service and, thus, were not separately reimbursable (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 26 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]), and defendant’s opposition papers were sufficient to raise a triable issue of fact with respect thereto. Consequently, neither party was entitled to summary judgment on the first, seventh and eighth causes of action, as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Moreover, we note that defendant correctly argues that plaintiff submitted duplicate claims for $209.32. Therefore, defendant is entitled to summary judgment dismissing the tenth cause of action.

Accordingly, the judgment is reversed, the portions of the order entered June 19, 2008 which granted plaintiff’s motion for summary judgment and which denied the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are vacated, plaintiff’s motion for summary judgment is denied and the branches of defendant’s cross motion seeking summary judgment dismissing the second, fourth, fifth, sixth, ninth and tenth causes of action, as well as so much of the third cause of action as sought to recover upon the $30.80 claim, are granted, and the matter is remitted to the [*3]Civil Court for all further proceedings on the first, seventh and eighth causes of action as well as so much of the third cause of action as sought to recover upon the $523.20 claim.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 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 (Timothy J. Dufficy, J.), entered December 11, 2008. The order granted defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed without costs.

In this subrogation action to recover the amount plaintiff paid in no-fault benefits as a result of the injuries its insureds sustained in a motor vehicle accident, defendant failed to timely appear or answer and, in July 2002, a default judgment was entered against him. Thereafter, defendant moved to vacate the default judgment. Pursuant to a stipulation entered into in June 2007, the default judgment was vacated and defendant’s affidavit submitted in support of his motion was deemed his answer. The case was subsequently set down for trial, at which defendant failed to appear. The default judgment was thereafter reinstated. Defendant then moved to vacate the default judgment, which motion was granted by order entered December 11, 2008. The instant appeal by plaintiff ensued.

Contrary to plaintiff’s contention, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant established both a reasonable excuse for his default and a meritorious defense to the action. We note that public policy favors the resolution of cases on the merits (see Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]). Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. [*2]
Decision Date: March 31, 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, insofar as appealed from, implicitly denied the branch of defendant’s cross motion seeking summary judgment dismissing the complaint and deemed established as a fact for all purposes in the action that plaintiff had made out a prima facie case.

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 in the principal sum of $910 and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, for limitation of issues of fact for trial (see CPLR 3212 [g]). Defendant appeals from so much of the Civil Court’s order as denied its cross motion for summary judgment dismissing the complaint and as deemed established plaintiff’s prima facie case.

In support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant sufficiently established the timely mailing of the denial of claim form, which denied plaintiff’s claim on the ground that the supplies provided were medically unnecessary (see 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]). In addition, annexed to the cross motion papers was an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that the supplies provided to plaintiff’s assignor were not medically [*2]necessary (see Med Tech Prods., Inc. v Geico Ins. Co., 25 Misc 3d 129[A], 2009 NY Slip Op 52111[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d 5 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff failed to rebut said showing, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Complete Orthopedic Supplies, Inc. v State Farm Mut. Ins. Co., 23 Misc 3d at 7; 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]). We pass on no other issue.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 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 November 28, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 that the professional health services provided lacked medical necessity. Plaintiff opposed the motion. The Civil Court granted defendant’s motion and the instant appeal ensued.

Defendant made a prima facie showing of its entitlement to summary judgment by establishing the timely mailing of the claim denial form (see 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 by submitting a sworn peer review report of its psychologist, which set forth a factual basis and medical rationale for his opinion that the professional health services at issue were not medically necessary (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]). In opposition to the motion, plaintiff failed to raise a triable issue of fact, as the psychologist’s affirmation submitted by plaintiff did not meaningfully refer to, let alone rebut, the conclusions set forth in the peer review report (id.; see also 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]).

Accordingly, defendant’s motion for summary judgment dismissing the complaint was properly granted. [*2]

Rios, J.P., Pesce and Steinhardt, JJ., concur.
Decision Date: March 31, 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 (Lila P. Gold, J.), entered June 19, 2008. The order, insofar as appealed from as limited by the brief, (1) denied the branch of defendant’s motion seeking to vacate four orders dated November 30, 2007 granting, upon defendant’s default, plaintiff’s four motions for summary judgment, and, upon such vacatur, to deny plaintiff’s four motions for summary judgment, and (2) denied the branch of defendant’s motion seeking leave to renew the prior motions.

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

Plaintiff commenced four actions against defendant to recover assigned first-party no-fault benefits and, thereafter, moved for summary judgment in each action. In June 2007, the parties stipulated to adjourn the motions until November 30, 2007, and defendant agreed to serve its opposition papers by September 30, 2007. In July 2007, the parties stipulated to consolidate the four actions into one. Defendant served its opposition papers in November 2007, but the Civil Court would not consider them on the ground that they were untimely. By four separate orders dated November 30, 2007, the court granted plaintiff’s motions for summary judgment on default, finding that plaintiff had established its prima facie entitlement to summary judgment with respect to each motion. In December 2007, defendant moved to, among other things, vacate its default and/or for leave to renew/reargue the prior motions. Defendant’s motion was denied by order entered June 19, 2008, and the instant appeal by defendant ensued.

A defendant seeking to vacate a default pursuant to CPLR 5015 (a) (1) must demonstrate a reasonable excuse for the default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an [*2]excuse (see CPLR 2005) if the facts submitted in support thereof are in evidentiary form and sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). By its June 19, 2008 order, the Civil Court correctly found defendant’s law office failure excuse to be disingenuous and insufficient to justify the default. Consequently, so much of the order as denied the branch of defendant’s motion seeking to vacate its default is affirmed.

Furthermore, so much of the June 19, 2008 order as denied the branch of defendant’s motion seeking leave to renew is affirmed. Defendant cannot renew a motion upon which it defaulted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 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 (Kenneth P. Sherman, J.), entered February 15, 2008. The order (1) denied plaintiff’s motion for summary judgment and (2) granted defendant’s cross motion seeking summary judgment dismissing the complaint or, in the alternative, to compel examinations before trial, to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests.

ORDERED that the appeal from so much of the order as granted defendant’s cross motion to the extent of permitting defendant to serve discovery requests upon plaintiff, while preserving plaintiff’s right to object to such requests, is dismissed as plaintiff is not aggrieved thereby; and it is further,

ORDERED that the order, insofar as reviewed, 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 or, in the alternative, to compel examinations before trial (EBTs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion “to the extent of permitting defendant to serve discovery requests upon plaintiff. Plaintiff’s right to object to said requests is preserved.” The instant appeal by plaintiff ensued.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment. The affidavit in support of plaintiff’s motion, submitted by the “employee of the company providing billing services for the plaintiff,” was insufficient to establish said employee’s personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers (see Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

While plaintiff contends that defendant did not establish its entitlement to compel the EBTs of specified persons, we do not pass upon said issue as the Civil Court did not grant such relief. Rather, the court merely “permitt[ed] defendant to serve discovery requests upon plaintiff” and noted that plaintiff’s “right to object to said requests is preserved.” Therefore, plaintiff is not aggrieved by the part of the order which gave defendant permission to serve discovery requests and preserved plaintiff’s right to object to the requests (see CPLR 5511; see also CPLR 3122 [a]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: March 31, 2010