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 (Thomas D. Raffaele, J.), entered April 7, 2008, deemed from a judgment of the same court entered May 28, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 7, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s motion for summary judgment, awarded plaintiff the principal sum of $459.14.

Judgment affirmed without costs.

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, finding that after defendant initially requested verification of the claims, defendant failed to allow 30 days to pass before issuing second requests. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form 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]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Consequently, defendant’s contention that the instant action is premature lacks merit. Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

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 (Joseph Esposito, J.), entered April 8, 2008, deemed from a judgment of the same court entered May 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 8, 2008 order which, insofar as appealed from, granted so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $879.73, awarded plaintiff the principal sum of $879.73.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, insofar as is relevant to this appeal, granted so much of plaintiff’s motion for
summary judgment as sought summary judgment with respect to plaintiff’s $879.73 claim, finding, inter alia, that after defendant initially requested verification of the claim, it failed to allow 30 days to pass before issuing a second request. This appeal by defendant ensued. A judgment was subsequently entered.

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

Defendant’s papers establish that defendant mailed its follow-up request for verification on the 30th calendar day after it mailed its verification request. As a result, the follow-up request was premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claim, defendant was precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Since defendant failed to raise a triable issue of fact, the judgment is affirmed. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

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 (Loren Baily-Schiffman, J.), entered November 2, 2007. The order, insofar as appealed from as limited by the brief, held that defendant had not established its entitlement to depose plaintiff’s owner, Perumunda K. Sharma.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3126, to dismiss the complaint due to plaintiff’s allegedly insufficient response to defendant’s interrogatories. While the motion was pending, defendant served plaintiff with a notice to take the deposition of plaintiff’s owner, Perumunda K. Sharma (Sharma). After plaintiff served papers which purported to be a cross motion (but which did not include a notice of cross motion) seeking a protective order with respect to the deposition of Sharma, defendant submitted reply papers setting forth the reasons why defendant believed it was entitled to such a deposition. The Civil Court denied defendant’s motion. The court further stated that defendant did not establish its need for a deposition of Sharma and that plaintiff’s purported cross motion, which, the court noted, did not appear on its calendar, was denied as moot. Defendant appeals from so much of the order as held that defendant had not established its entitlement to depose Sharma.

The portion of the order which provided that defendant did not establish its entitlement to depose Sharma is not appealable as of right because it did not decide a motion on notice seeking such relief (CCA 1702 [a] [2]; CPLR 2211). Since leave to appeal from that portion of the order has not been granted, the appeal is dismissed (see CCA 1702 [c]; Robertson v United Equities, Inc., 61 AD3d 838 [2009]; Consolidated Resources, LLC v 210-220-230 Owner’s Corp., 59 AD3d 579 [2009]; Mohler v Nardone, 53 AD3d 600 [2008]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009

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.), dated September 13, 2007. The order denied a motion by defendant seeking to vacate a default judgment and compel plaintiff to accept its late answer, and for sanctions.

Order modified by providing that so much of the motion by defendant as sought to vacate the default judgment and to compel plaintiff to accept its late answer is granted, and the answer annexed to defendant’s moving papers is deemed served upon plaintiff; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment entered following its failure to answer, to compel plaintiff to accept its late answer, and for sanctions. The Civil Court denied the motion, finding that the affirmation of defendant’s attorney was insufficient to establish a reasonable excuse for the default. The instant appeal by defendant ensued.
A party seeking vacatur of a default judgment must demonstrate both a reasonable excuse for its default in appearing and answering the complaint, and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The affidavits of the claims representatives, which defendant submitted in support of its motion, suffice to establish a reasonable excuse for defendant’s relatively short delay in answering the complaint. Moreover, plaintiff has not indicated that it was prejudiced by the delay. Furthermore, defendant made a prima facie showing of a potentially meritorious defense as to whether plaintiff is ineligible to receive reimbursement of no-fault benefits (see State Farm [*2]Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Accordingly, the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept its late answer are granted.

In our opinion, the record does not support the imposition of sanctions against plaintiff. We thus leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking sanctions.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

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 (Bernard J. Graham, J.), entered November 5, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion to amend its answer to add affirmative defenses and to compel plaintiff to respond to defendant’s amended discovery demands.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, which sought leave to amend the answer to assert the affirmative defenses that plaintiff was a fraudulently incorporated professional service corporation and that, as a result, plaintiff lacked standing to bring the instant action, and to compel plaintiff to respond to its amended discovery demands. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

The Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer in order to interpose the aforementioned affirmative defenses (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]) since plaintiff failed to demonstrate that prejudice or surprise would result therefrom (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defenses were neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Ingrami v Rover, 45 AD3d 806, 808 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). Moreover, defendant made a sufficient showing that its amended discovery demands were material and necessary to its defenses so as to warrant the granting of the branch of its
cross motion seeking to compel plaintiff to respond thereto (see CPLR 3101; Mallela, 4 NY3d 313).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Julia L. Rodriguez, J.), entered October 16, 2007, which denied its motion to vacate a stipulation of settlement and to dismiss the action.

Per Curiam.

Order (Julia L. Rodriguez, J.), entered October 16, 2007, affirmed, with $10 costs.

Civil Court properly denied defendant’s motion to vacate a 2002 stipulation settling this action for first party no-fault benefits. Defendant failed to proffer any competent evidence in support of its belated claim that the stipulation was unenforceable because it was “premised on fraud.” “Stipulations of settlement are favored by the courts and are not lightly cast aside” (Hallock v State of New York, 64 NY2d 224, 230 [1984]). While defendant, five years later, is intent on revisiting the propriety of a stipulation entered into upon the advise of counsel, it has failed to demonstrate any basis to excuse it from complying with the terms to which it assented, and may not avoid its enforceability by claiming, in conclusory fashion, that plaintiff’s underlying no-fault claims “appear to be the product of fraud.” As the motion court properly noted, the information regarding plaintiff’s corporate status was available to defendant when the stipulation was entered into in 2002.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 14, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered November 28, 2007, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Appeal from order (Sharon A.M. Aarons, J.), entered November 28, 2007, is deemed an appeal from a judgment (same court and Judge), entered August 18, 2008, and so considered, judgment reversed, with $25 costs, and matter remanded for further proceedings.

In this action to recover first party no-fault benefits, defendant’s medical expert should have been permitted to testify, since the expert witness “would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]; see also Spruce Med. and Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert precluded from testifying because his opinion may have been based, at least in part, on his review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]) or medical records prepared by other physicians and submitted to defendant, relating to treatment provided to the assignor for injuries arising from the same motor vehicle accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 13, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), dated April 17, 2006, after a nonjury trial, in favor of plaintiff and awarding it judgment in the principal sum of $2,670.40.

Per Curiam.

Appeal from order (Fernando Tapia, J.) dated April 17, 2006, is deemed to be an appeal from a judgment (same court and Judge), entered September 6, 2006, and so considered, judgment reversed, with $25 costs, and the complaint dismissed.

In this action to recover first party no-fault benefits, plaintiff failed to meet its evidentiary burden of establishing a reasonable justification for the untimely submission of its claims to defendant. It is undisputed that the health services for which plaintiff seeks to recover no-fault benefits were rendered in November 2003 and that plaintiff did not submit its claims to defendant until March 16, 2004. Defendant denied the claims as untimely and afforded plaintiff the opportunity to submit written proof showing a “clear and reasonable justification” for its failure to comply with the statutory time frame for the filing of claims (see Matter of Medical Socy. Of State of NY v Serio, 100 NY2d 854 [2003]). The sole issue at trial was whether plaintiff had a reasonable justification for its delay in submitting the claims to defendant.

To the extent that plaintiff’s trial proof showed that it mistakenly submitted the claims to the wrong insurer (Allstate Insurance Company) in December 2003, thus justifying its initial delay in submitting the claims to defendant (see 11 NYCRR 65-3.5[l]), its proof was insufficient to establish the date the claims were denied by Allstate or demonstrate a reasonable justification for the subsequent unexplained period of delay prior to submission of the claims to defendant (see NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). The trial court’s contrary determination, insofar as it rested on a finding that defendant failed to show that it was prejudiced by plaintiff’s untimely claims, was improper, since there is no authority in the No-Fault statute or regulations imposing such requirement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur

Decision Date: July 13, 2009

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 (Joseph Esposito, J.), dated May 16, 2008. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In this subrogation action to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor, plaintiff moved for summary judgment. By order dated July 6, 2007, the motion was granted on default. In May 2008, defendant moved to vacate the July 6, 2007 order, and plaintiff submitted opposition. On May 6, 2008, while defendant’s motion was pending, a default judgment was entered in favor of plaintiff. By order dated May 16, 2008, the Civil Court vacated the May 6, 2008 judgment and the July 6, 2007 order. The instant appeal by plaintiff ensued.

A defendant seeking to vacate a default must demonstrate a reasonable excuse for his default as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1980]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant herein did not provide a meritorious defense to the action inasmuch as he failed to make any showing that he was not responsible for the underlying motor vehicle accident, but merely stated, “I don’t owe any money to defendant.” Accordingly, the order of the Civil Court is reversed and defendant’s motion to vacate is denied (see State Farm Auto. Ins. Co. [*2]v A & G Luxury Limo, Inc., 21 Misc 3d 144[A], 2008 NY Slip Op 52471[U] [App Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 February 7, 2008. The order, insofar as appealed from as limited by the brief, upon granting the branch of defendant’s motion seeking leave to reargue, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Order, insofar as appealed from, 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 of lack of medical necessity. Plaintiff cross-moved for summary judgment and argued in opposition to defendant’s motion that defendant had failed to come forward with proof that the performed MRI was not medically necessary. The Civil Court denied defendant’s motion and plaintiff’s cross motion. By order entered February 7, 2008, the Civil Court granted defendant’s motion seeking leave to reargue and, upon reargument, summary judgment. As limited by the brief, plaintiff appeals from so much of the February 7, 2008 order as granted the branch of defendant’s motion seeking summary judgment.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to defendant’s standard office practice and procedure (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]). As the affirmed report by [*2]defendant’s examining physician provided a factual basis and medical rationale for his opinion that the billed-for MRI was not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]), and plaintiff failed to rebut such proof, the Civil Court properly granted defendant summary judgment. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009