SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), entered April 7, 2008. The order granted defendant’s motion to dismiss the complaint and implicitly denied plaintiffs’ cross motion for summary judgment.Order reversed without costs, defendant’s motion to dismiss the complaint denied, plaintiffs’ cross motion for summary judgment granted and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint and plaintiffs cross-moved for summary judgment. The District Court found that plaintiffs had established their prima facie entitlement to summary judgment, but granted defendant’s motion, finding that the court did not have jurisdiction over the issue of whether plaintiffs’ assignor was in the course of employment at the time of the accident. The court referred the matter to the Workers’ Compensation Board to make that determination. Plaintiffs appeal, arguing that defendant should be precluded from asserting this defense as a result of its failure to timely deny the claim and, as a result, that their motion for summary judgment should have been granted. [*2]

Since defendant raised no issue in the District Court with regard to plaintiffs’ prima facie case, we do not pass upon the propriety of the District Court’s determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant failed to allege, let alone establish, that its denial of claim form, which was dated February 21, 2005, two years after the services at issue were rendered, was timely mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2007]; Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant is, therefore, precluded from asserting most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its only proffered defense, that plaintiffs’ assignor was acting as an employee at the time of the accident (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the order is reversed, plaintiffs’ motion for summary judgment is granted, and the matter is remitted to the District Court for the calculation of statutory
interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 21, 2007. The order, insofar as appealed from, denied without prejudice plaintiffs’ motion for summary judgment and held the action in abeyance pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment, by providing that so much of plaintiffs’ motion as sought summary judgment upon claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) is granted and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon, and by remitting so much of plaintiffs’ motion as sought summary judgment with respect to the remaining claims to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny so much of plaintiffs’ motion as related to the remaining claims and grant reverse summary [*2]judgment in favor of defendant dismissing the complaint with respect to the remaining claims unless plaintiffs show good cause why the complaint with respect to the remaining claims should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied the motion and cross motion without prejudice, and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction. Plaintiffs appeal from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance.

Since the defense of the assignor’s eligibility for workers’ compensation benefits is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant was required to demonstrate that it timely denied plaintiffs’ claims on said ground within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to plaintiffs’ claims for $49.26, $188.16 and $101.10 (dates of service 11/2/06-11/9/06), the record indicates that defendant did not deny said claims within the 30-day determination period. Defendant was, therefore, precluded from raising its defense of workers’ compensation eligibility as to said claims. Consequently, so much of plaintiffs’ motion as sought summary judgment with respect to the aforementioned claims is granted, and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon.

The remaining claims were timely denied based on the assignor’s alleged eligibility for workers’ compensation benefits. For the reasons stated in A.B. Med. Servs., PLLC a/a/o Wilkens LaGuerre v Amer. Tr. Ins. Co. ( Misc 3d , 2009 NY Slip Op [No. 2008-281 N C], decided herewith), so much of plaintiffs’ motion seeking summary judgment with respect to these claims is remitted to the District Court to be held in abeyance pending a prompt application to the Board, as set forth above.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), dated September 4, 2007, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 4, 2007 order granting plaintiffs’ motion for summary judgment, awarded plaintiffs the sum of $19,357.03.

Judgment reversed without costs, order dated September 4, 2007 granting plaintiffs’ motion for summary judgment vacated, and plaintiffs’ motion for summary judgment denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that the affidavit of plaintiffs’ employee failed to lay a proper foundation for the admission of the documents attached to plaintiffs’ moving papers as business records pursuant to CPLR 4518 (a), and that the matter should be held in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. By order dated September 4, 2007, the District Court granted plaintiffs’ motion for summary judgment. A judgment awarding plaintiff the sum of $19,357.03 was entered on September 11, 2007. Defendant subsequently appealed from the September 4, 2007 order, which appeal we [*2]deem to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

To the extent that defendant sought to have the District Court search the record and hold the matter in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law, the papers that defendant submitted in opposition to plaintiffs’ motion for summary judgment did not establish sufficient facts to warrant such relief (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]).

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiffs’ motion for summary judgment is vacated, and the motion is denied.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009

[*1]

Supreme Court, Appellate Term, Second Department, June 18, 2009

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Daniel J. Tucker, New York City, and Thomas Torto, New York City, for respondent.

{**24 Misc 3d at 76} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims [*2]based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board. The District Court denied the motion and cross motion without prejudice and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction. Plaintiffs appeal from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance.

Defendant’s proof was sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21{**24 Misc 3d at 77} Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiffs’ motion should not have been denied without prejudice but, rather, held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

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 April 29, 2008, deemed from a judgment of the same court entered June 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 29, 2008 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

Plaintiffs commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for injuries their assignor sustained in a motor vehicle accident on June 24, 2003, on the ground that payment of said benefits was overdue. A wholly owned subsidiary of defendant subsequently commenced a Supreme Court action against plaintiffs herein, as well as others, in which it alleged that the same June 2003 accident was staged, and sought a declaratory judgment that there was no coverage as to any claim for first-party no-fault benefits and, thus, that it was not required to defend or indemnify its insured. In June 2007, the Supreme Court awarded judgment to the plaintiff therein on default. In April 2008, defendant herein moved to dismiss the instant complaint, arguing that this action was barred by virtue of the Supreme Court order. The Civil Court granted defendant’s motion. The instant appeal by plaintiffs ensued. A judgment dismissing the complaint was subsequently entered.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 747 [4th ed]). Res judicata, or claim [*2]preclusion, is invoked when a party, or one in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same, or series of, transactions which were raised, or could have been raised, in the prior action (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Res judicata applies “when a different judgment in the second [action] would destroy or impair rights or interests established by the first” (id. at 306-307).

Clearly, the determination as to whether there was coverage is crucial to both plaintiffs and defendant herein, and arises out of the same transaction, i.e., the subject accident (see e.g. Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]; Sabatino v Capco Trading, Inc., 27 AD3d 1019, 1020 [2006]), and a different judgment in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see e.g. Schuykill Fuel Corp., 250 NY at 306-307). Moreover, the record establishes that defendant and the wholly owned subsidiary had the requisite privity (see e.g. Spasiano v Provident Mut. Life Ins. Co., 2 AD3d 1466 [2003]). Consequently, plaintiffs were barred from relitigating the claim pursuant to the doctrine of res judicata. Plaintiffs’ remaining contentions have no merit or are unpreserved for appellate review. Accordingly, defendant’s motion was properly granted, and the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 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 (Diane A. Lebedeff, J.), dated February 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant’s motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007.

Order, insofar as appealed from, reversed without costs and so much of defendant’s motion as sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007 granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion which, insofar as is relevant to this appeal, sought summary judgment with respect to four bills ($111.38, $55.69, $122.88 and $61.44) for services rendered between November 28, 2006 and January 13, 2007, finding that the “only issue remaining for trial is medical necessity. Both plaintiff and defendant established their prima facie case.” The instant appeal by defendant ensued.

Contrary to plaintiff’s contention, the affidavit of defendant’s claim representative established that the denial of claim forms, which denied the subject claims on the ground of lack of medical necessity based upon an independent medical examination (IME) report, were timely mailed in accordance with defendant’s standard office practice or procedure used to ensure that items are 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 by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity. As a result, defendant’s motion for summary judgment dismissing the claims at issue should have been granted (see Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [App Term, 1st Dept 2008]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 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, Richmond County (Johnny Lee Baynes, J.), entered November 29, 2007. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3211 or, in the alternative, for summary judgment determining that defendant’s denial of claim form was timely mailed.

Order modified by adding thereto the provision that the acknowledgment of service annexed to defendant’s moving papers is deemed timely filed; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved pursuant to CPLR 3211 to dismiss the action without prejudice because plaintiff failed to file the summons with proof of service as required by former section 409 of the New York City Civil Court Act or, in the alternative, for summary judgment determining that defendant’s denial of claim form was timely mailed. In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411. The Civil Court denied defendant’s motion. This appeal by defendant ensued.

Dismissal of the action without prejudice due to a violation of CCA former 409, which required that a copy of the summons with proof of service be filed within 14 days after service of the summons, is not warranted where, as here, plaintiff requested nunc pro tunc relief (see CCA former 411). Under the circumstances presented, such nunc pro tunc relief should have been granted.

The affidavit submitted by defendant’s claims examiner failed to establish that defendant timely mailed its verification requests and its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New [*2]York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant did not establish that its denial of claim form was timely. Accordingly, defendant’s motion was properly denied and the order is modified to provide for nunc pro tunc relief.

Weston, J.P., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and grant defendant’s motion to dismiss the complaint.

This appeal turns on plaintiff’s failure to comply with the requirements of the New York City Civil Court Act that were in effect at the time the underlying action was commenced.

The Civil Court action was commenced on or about November 10, 2003, and defendant served an answer upon plaintiff dated December 22, 2003.

Despite the fact that former section 409 of the Civil Court Act, which was in effect at the time, required that a copy of the summons with proof of service be filed within 14 days of service, to wit, November 24, 2003, this plaintiff did not file those documents until March 12, 2007, nearly 3¼ years later. This is a rather extensive oversight.

Furthermore, I disagree with the representation presented by the majority that, “In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411”. In fact, what plaintiff stated in its opposition papers was, “If this court deems it necessary, I would request the filing of the summons and complaint be accepted nunc pro tunc”. This inchoate statement was not even a precatory “request” but, rather, a conditional offer to make such request only “if this court deems it necessary”. This failure to file an application for relief is important because if plaintiff had made an affirmative request for nunc pro tunc relief, then it would have been required to demonstrate why it was entitled to such relief. That would have necessitated an explanation of why it took more than 1,200 days to comply with a simple requirement that should have been done in 14 days.

I do not deem it necessary or even advisable to grant plaintiff’s or its counsel’s unsupported request for nunc pro tunc relief for counsel’s failure to comply with well- established rules, which were disregarded for approximately 3¼ years. I would simply dismiss the complaint without prejudice.
Decision Date: June 12, 2009

[*1]

Supreme Court, Appellate Term, Second Department, June 12, 2009

APPEARANCES OF COUNSEL

Gullo & Associates, LLP, Brooklyn (Anthony DeGuerre of counsel), for appellant.

{**24 Misc 3d at 69} OPINION OF THE COURT

Memorandum.

Order modified by adding thereto the provision that the acknowledgment of service annexed to defendant’s moving papers is deemed timely filed; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved pursuant to CPLR 3211 to dismiss the action without prejudice because plaintiff failed to file the summons with proof of service as required by former section 409 of the New York City Civil Court Act or, in the alternative, for summary judgment dismissing the complaint on the ground that the action was premature since defendant never received the claim forms at issue. In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411. The Civil Court denied defendant’s motion. This appeal by defendant ensued.

Dismissal of the action without prejudice due to a violation of CCA former 409, which required that a copy of the summons with proof of service be filed within 14 days after service of the summons, is not warranted where, as here, plaintiff requested nunc pro tunc relief (see CCA former 411). Under the circumstances presented, such nunc pro tunc relief should have been granted. Further, while defendant asserts that the action is premature since it never received the claims which are at issue, the affidavit of defendant’s claims examiner was insufficient to establish such assertion as a matter of law (Zuckerman v City of New York, 49 NY2d 557[*2][1980]; see generally Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s motion was properly denied and the order is modified to provide for nunc pro tunc relief.

Golia, J. (dissenting and voting to reverse the order and grant defendant’s motion to dismiss in the following memorandum). Here, plaintiff previously filed a motion for summary judgment, which included misrepresentations and questionable fraudulent billing, and which demonstrated an intentional failure to comply with requirements of the Civil Court Act, and refusal to affirmatively move to correct such failure. This motion for summary judgment was then withdrawn for reasons that are not contained in the record.{**24 Misc 3d at 70}

Those papers which are in this file contain an affirmation from plaintiff’s attorney, and certain documentary proof which the plaintiff’s attorney argued was sufficient to warrant summary judgment in favor of plaintiff.

The documentary proof that was annexed was not a doctor’s office records or a doctor’s affirmation relating to treatment. It was not even an NF-2 claim form. The submitted document was a “Health Insurance Claim Form” which set forth a list of dates representing an extensive series of more than 30 treatments performed by the claimant Dr. Dugo upon the alleged eligible injured insured Judy Nieves during the time period at issue in this no-fault case. A problem arises in that this “form” specifically asserts that the patient’s condition is not related to an auto accident or for that matter also not related to employment or any “other accident.” Clearly, this document is not sufficient to establish proof of treatment as a result of a covered automobile accident. Nevertheless, this document does raise the question as to whether or not these medical treatments were submitted for payment to both this no-fault carrier as well as to a different health insurance carrier with conflicting statements. To me, there appears to be grounds to question whether the provider submitted a claim to this “no-fault” carrier that the alleged injury was caused by an auto accident and another claim to a “health insurance” carrier that the injury was not caused by an auto accident.

Inasmuch as that motion was withdrawn, it is not part of this appeal and plays no part in my dissent.

What is part of this appeal is plaintiff’s failure to comply with the requirements of the Civil Court Act that were in effect at the time the underlying action was commenced.

The Civil Court action below was commenced on or about September 24, 2004, the defendant acknowledging that it was served and whereupon it served an answer upon plaintiff dated October 13, 2004.

Despite the fact that section 409 of the Civil Court Act, which was in effect at the time, required that a copy of the summons with proof of service be filed within 14 days of service, to wit: October 8, 2004, this plaintiff did not file those documents until March 12, 2007, nearly 2½ years later.

Indeed, it cannot even be argued that it was a mere oversight that was corrected as soon as [*3]the plaintiff became aware of the error. On May 3, 2005 the defendant served the plaintiff with a demand that it purchase an index number and file its papers in{**24 Misc 3d at 71} court. It then took the plaintiff another 22 months before it deigned to comply with either the court rule, or the defendant’s demand.

Furthermore, I disagree with the representation presented by the majority that “[i]n opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA form 411.” In fact, what the plaintiff stated in its opposition papers was “[i]f this court deems it necessary, I would request the filing of the summons and complaint be accepted nunc pro tunc.” This inchoate statement was not even a precatory “request” but rather a conditional offer to make such request only “if this court deems it necessary.” This failure to file an application for relief is important because if plaintiff had made an affirmative request for nunc pro tunc relief, then it would have been required to argue why it was entitled to such relief. That would have necessitated an explanation of why it took more than 800 days to comply with a simple requirement that should have been done in 14 days, and why this plaintiff apparently ignored the defendant’s demand that plaintiff comply some two years before it did so.

I do not deem it necessary or even advisable to grant plaintiff’s or its counsel’s unsupported request for nunc pro tunc relief for counsel’s failure to comply with well-established rules which were knowingly disregarded for approximately 2½ years. I would simply dismiss the action without prejudice.

Weston, J.P., and Steinhardt, J., concur; Golia, J. dissents in a separate memorandum.

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 July 11, 2007. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court denied plaintiff’s motion on the ground that plaintiff’s affidavit was insufficient. This appeal by plaintiff ensued.

Inasmuch as the affidavit submitted by plaintiff’s medical billing manager was insufficient to establish that said person possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 08, 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 (Diane A. Lebedeff, J.), entered July 18, 2007, deemed from a judgment of the same court entered May 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2007 order granting defendant’s motion seeking, in effect, summary judgment, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the subject claim forms, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to the motion was based upon W-2 tax forms for the treating providers, which identified plaintiff as their employer. Plaintiff’s owner stated in an affidavit that the treating providers were employees, and that while the submitted claim forms identified them as independent contractors, it was a typographical error. The Civil Court granted defendant’s motion, finding that “the bills indicated that the services in question were performed by independent contractors.” Plaintiff appeals, arguing that it raised an issue of fact as to the employment status of its treating providers and that defendant failed to verify their employment status or to issue timely denials of the claims. A judgment was subsequently entered.

Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]). Such a defense is [*2]nonprecludable (id.).

“[T]he claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 72 [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not submit bills that entitled it to payment, correction of the defect involved herein is not permitted once litigation has been commenced (A.M. Med. Servs., P.C., 22 Misc 3d 70). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009