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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered December 1, 2006. The order granted a petition to vacate a master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

ORDERED that the order is reversed without costs and the petition to vacate the master arbitrator’s award is denied without prejudice to renewal upon proper papers.

RJ Professional Acupuncturist, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which upheld an arbitrator’s award denying petitioner’s claim for assigned first-party no-fault benefits. The Civil Court
granted the petition, vacated the master arbitrator’s award and directed the entry of judgment in favor of petitioner in the principal sum of $6,498.52.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see SP Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was one denominated an “Affirmation in Support.” The attorney who purportedly signed the document did not affirm the statements contained therein “to be true under the penalties of perjury” (CPLR 2106) but merely indicated that he “states as follows” (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504[U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order [*2]is reversed and the petition to vacate the master arbitrator’s award is denied without
prejudice to renewal upon proper papers (see Matter of Sadler Textiles [Winston Uniform Corp.], 39 AD2d 845 [1972]).

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: March 31, 2010

—[*1] David J. Tetlak, Huntington Station, N.Y. (Albert J. Galatan of counsel), for appellant.

Epstein & Rayhill, Elmsford, N.Y. (David M. Heller of counsel), for proposed additional respondent-respondent.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of claims for uninsured motorist benefits, the petitioner appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered May 13, 2009, as denied, without a hearing, that branch of the petition which was to permanently stay arbitration, and (2) from an order of the same court entered July 20, 2009, which denied its motion, denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue.

Ordered that the appeal from the order entered July 20, 2009, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

Ordered that the order entered May 13, 2009, is reversed insofar as appealed from, on the law, and the matter is remitted to the Supreme Court, Westchester County, for an evidentiary hearing to determine whether Nationwide Mutual Fire Insurance Company validly disclaimed coverage of the offending vehicle for the subject accident, and thereafter, for a new determination of that branch of the petition which was to permanently stay arbitration; and it is further,

Ordered that one bill of costs is awarded to the appellant, payable by the respondents-respondents and proposed additional respondent-respondent.

The petitioner AutoOne Insurance Company made a prima facie showing that the offending vehicle was insured by Nationwide Mutual Fire Insurance Company (hereinafter Nationwide) through the submission of a police accident report containing the vehicle’s insurance code (see Matter of Continental Ins. Co. v Biondo, 50 AD3d 1034 [2008]; Matter of State Farm Mut. Auto. Ins. Co. v Mazyck, 48 AD3d 580, 581 [2008]; Matter of Mercury Ins. Group v Ocana, 46 AD3d 561, 562 [2007]; Matter of Utica Mut. Ins. Co. v Colon, 25 AD3d 617, 618 [2006]; Matter of AIU Ins. Co. v Nunez, 17 AD3d 668, 669 [2005]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579, 580 [1998]).

In opposition to the petition, Nationwide submitted evidence that it had disclaimed coverage for the offending vehicle based upon its insured’s failure to cooperate in the investigation of the [*2]subject accident. However, since a disclaimer based upon lack of cooperation penalizes the injured party for the actions of the insured and “frustrates the policy of this State that innocent victims of motor vehicle accidents be recompensed for the injuries inflicted upon them,” an insurer seeking to disclaim for noncooperation has a heavy burden of proof (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]; see Continental Cas. Co. v Stradford, 11 NY3d 443, 450 [2008]). To sustain its burden of establishing lack of cooperation, the insurer must demonstrate that “it acted diligently in seeking to bring about the insured’s co-operation . . . that the efforts employed by the insurer were reasonably calculated to obtain the insure[d]’s co-operation . . . and that the attitude of the insured, after his co-operation was sought, was one of ‘willful and avowed obstruction’ ” (Thrasher v United States Liab. Ins. Co., 19 NY2d at 168, quoting Coleman v New Amsterdam Cas. Co., 247 NY 271, 276 [1928]; see Matter of State Farm Indem. Co. v Moore, 58 AD3d 429, 430 [2009]; Matter of State Farm Mut. Auto. Ins. Co. v Campbell, 44 AD3d 1059 [2007]; Matter of Eveready Ins. Co. v Mack, 15 AD3d 400, 401 [2005]). Here, while Nationwide’s disclaimer letter and evidentiary proof that its insured failed to attend an examination under oath were sufficient to raise an issue of fact warranting a hearing, these submissions were insufficient to establish the validity of the disclaimer as a matter of law (see Matter of Mercury Ins. Group. v Ocana, 46 AD3d 561, 563; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496, 497 [2003]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 656 [2007]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579, 580 [1998]). In this regard, we note that Nationwide’s letters demanding that its insured appear at an examination under oath made reference to his purported status as a claimant for no-fault benefits, and warned him that the failure to appear could result in the denial of such benefits, despite the fact that there is no indication that the insured was injured in the accident and sought no-fault benefits. Under these circumstances, the Supreme Court should not have determined that Nationwide validly disclaimed coverage without conducting a hearing. Accordingly, we remit this matter to the Supreme Court, Westchester County, for an evidentiary hearing to determine the issue of whether Nationwide validly disclaimed coverage, and thereafter, for a new determination of that branch of the petition which was to permanently stay arbitration. Covello, J.P., Miller, Balkin and Chambers, JJ., concur.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y. (Kelly Caputo of counsel), for respondent.

In an action to recover no-fault medical payments under two insurance contracts, the defendant appeals from a judgment of the Supreme Court, Nassau County (Phelan, J.), entered June 4, 2009, which, upon an order of the same court entered May 14, 2009, granting that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted by the plaintiff New York and Presbyterian Hospital, as assignee of Joaquin Benitez, and denying that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint insofar as asserted by that plaintiff, is in favor of that plaintiff and against it in the principal sum of $56,235.43.

Ordered that the judgment is affirmed, with costs.

The plaintiff New York and Presbyterian Hospital, as assignee of Joaquin Benitez (hereinafter the hospital), established its prima facie entitlement to judgment as a matter of law by demonstrating that the necessary billing forms were mailed to and received by the defendant Country-Wide Insurance Company (hereinafter the insurer) and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 981-982 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]).

In opposition, the insurer failed to raise a triable issue of fact. Contrary to the insurer’s contention, the hospital’s submission of a completed hospital facility form (NYS form N-F 5) within 45 days after services were rendered satisfied the written notice requirement set forth in 11 NYCRR 65-1.1 (see 11 NYCRR 65-3.3 [d]; cf. New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822, 823 [2007]; St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748, 749 [2005]). [*2]

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted by the hospital and denied that branch of the insurer’s cross motion which was for summary judgment dismissing the complaint insofar as asserted by the hospital. Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeals from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 2, 2008, and an order of the same court (Norman Janowitz, J.) entered December 22, 2008. The order entered July 2, 2008, insofar as appealed from, denied plaintiffs’ motion for summary judgment. The order entered December 22, 2008 denied a motion by plaintiff B.Y., M.D., P.C. for a protective order and, in effect, granted the branch of defendant’s cross motion seeking to dismiss, for failure of said plaintiff to comply with defendant’s discovery demands, so much of the complaint as sought to recover upon claims of said plaintiff.

ORDERED that the appeal from the order entered July 2, 2008 is dismissed as abandoned; and it is further,

ORDERED that the order entered December 22, 2008 is modified by deleting the provision thereof which, in effect, granted defendant’s cross motion to dismiss so much of the complaint as sought to recover upon claims of plaintiff B.Y., M.D., P.C., and by substituting therefor a provision granting the branch of defendant’s cross motion seeking to compel said plaintiff to comply with defendant’s discovery demands to the extent of compelling said plaintiff to produce the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of defendant’s notice for discovery and inspection, and to serve responses to questions 1, 6 through 9, and 23 through 25 of defendant’s “demand for verified written [*2]interrogatories,” insofar as the information sought relates to said plaintiff, within 60 days of the order entered hereon; as so modified, the order is affirmed without costs.

The appeal by plaintiffs from the order entered July 2, 2008 is dismissed as abandoned since the only appellant’s brief submitted was by plaintiff B.Y., M.D., P.C. (B.Y.) and said brief states that the appeal is from the order “entered Dec. 17 [sic], 2008,” and there are no issues raised in the brief with respect to the July 2, 2008 order.

In this action by providers to recover assigned first-party no-fault benefits, defendant served combined discovery demands, consisting of demands requesting the production of corporate documents, medical records, and various miscellaneous items, as well as “a demand for verified written interrogatories.” Rather than responding to such discovery demands or interrogatories, or objecting to them within 20 days of service (see CPLR 3122 [a]; 3133 [a]), B.Y., approximately one month after that 20-day period, moved for a protective order pursuant to CPLR 3103, asking the District Court to excuse its delay and to limit disclosure on the ground that the disclosure sought by defendant was “oppressive” in scope. Defendant cross-moved to dismiss, pursuant to CPLR 3126, so much of the complaint as sought to recover on B.Y.’s claims, based upon B.Y.’s failure to comply with its discovery demands, or, in the alternative, for an order, pursuant to CPLR 3124, compelling B.Y. to comply with said demands. By order entered December 22, 2008, the District Court denied B.Y.’s motion for a protective order as untimely and granted defendant’s cross motion seeking dismissal. The instant appeal by B.Y. ensued.

CPLR 3103 (a) empowers the motion court to issue a protective order “at any time.” The failure of a party to respond to disclosure demands within the applicable time periods (see CPLR 3122 [a]; 3133 [a]) or to move promptly for a protective order after receipt of said demands, however, is “more likely to be resolved against the movant who provided no objections and was tardy with the motion. The issuance of a protective order is within the broad discretion of the court and such dilatory conduct can often result in a court’s refusal to exercise its powers under CPLR 3103 (a)” (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3103:3). Accordingly, since B.Y. did not proffer a reasonable excuse for its delay, the court did not improvidently exercise its discretion in denying B.Y.’s motion for a protective order.

While a motion court has discretion to dismiss a complaint as a sanction against a plaintiff who “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126 [3]; see Kihl v Pfeffer, 94 NY2d 118 [1999]), this drastic sanction is generally only justified where the party seeking dismissal demonstrates that the failure to comply with court-ordered discovery was “deliberate and contumacious” (see Furniture Fantasy v Cerrone, 154 AD2d 506, 507 [1989]). Moreover, the movant has the initial burden of coming forward with a sufficient showing of wilfulness (id.). Since defendant herein failed to meet that initial burden, it was an improvident exercise of discretion for the District Court to have granted defendant’s cross motion to the extent of dismissing the complaint insofar as it sought to recover upon claims of B.Y.

In view of the fact that B.Y. failed to timely challenge the propriety of defendant’s notice for discovery and inspection (see CPLR 3122 [a]) or timely object to defendant’s “demand for verified written interrogatories” (see CPLR 3133 [a]), it is obligated to produce the information sought except as to matters which are privileged or palpably improper (see New Era [*3]Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U] [App Term, 9th & 10th Jud Dists 2009]). To the extent that defendant’s discovery demands concern matters relating to defenses which defendant is precluded from raising, they are palpably improper notwithstanding the fact that B.Y. did not timely object thereto (id.). However, defendant seeks discovery, inter alia, to support its defense that B.Y. is ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (see New Era Acupuncture, P.C., 24 Misc 3d 134[A], 2009 NY Slip Op 51396[U]). As a result, discovery of certain items requested by defendant is not palpably improper, and B.Y. did not demonstrate that such information was privileged. Consequently, defendant is entitled to production of the documents and information demanded in items 1 through 7, 9, 10, 12 through 16, 19, 41, and 42 of its notice for discovery and inspection, and to responses to questions 1, 6 through 9, and 23 through 25 of its “demand for verified written interrogatories” insofar as the information sought relates to B.Y. (see CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; Midwood Acupuncture, P.C. v State Farm Fire & 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]).

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.
Decision Date: March 19, 2010