Reported in New York Official Reports at Metropolitan Med. Supplies, LLC v GEICO Ins. Co. (2012 NY Slip Op 51490(U))
| Metropolitan Med. Supplies, LLC v GEICO Ins. Co. |
| 2012 NY Slip Op 51490(U) [36 Misc 3d 141(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS, ALIOTTA, JJ
2010-2742 Q C.
against
GEICO Ins. Co., Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 22, 2010. The judgment, after a nonjury trial, implicitly awarded plaintiff the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action, for a total award to plaintiff of the principal sum of $1,785.79.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.
In this action by a provider to recover assigned first-party no-fault benefits, the complaint sought to recover the principal sum of $686.44 upon a first cause of action and the principal sum of $1,409.24 upon the second cause of action. Pursuant to a pretrial order, the trial in this action was limited to the issue of the medical necessity of the billed-for supplies. At the nonjury trial, defendant’s expert witness was allowed to testify as to plaintiff’s first cause of action, but was [*2]precluded from testifying as to plaintiff’s second cause of action, on the ground that the witness was not the doctor who had prepared the peer review upon which defendant’s denial of the claim underlying the second cause of action had been based. After trial, plaintiff was awarded the principal sum of $376.55 on its first cause of action and the principal sum of $1,409.24 on its second cause of action. Defendant appeals.
We reject defendant’s challenge to the Civil Court’s finding as to plaintiff’s first cause of action. “A decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence” (S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U], *1 [App Term, 2d & 11th Jud Dists 2008], quoting Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]). Although plaintiff did not put on any rebuttal witnesses, plaintiff did cross-examine defendant’s witness, and the Civil Court “was free to assess and reject [the witness’s] uncontradicted expert opinion” (West Tremont Med. Diagnostic, P.C. v GEICO Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U], *2 [App Term, 2d & 11th Jud Dists 2006]).
As to plaintiff’s second cause of action, we find that the Civil Court erred in precluding the testimony of defendant’s expert medical witness. While that witness had not prepared the peer review report upon which defendant’s denial of this claim was based, he nevertheless should have been permitted to testify as to his opinion of the lack of medical necessity for the supplies at issue, which testimony would be limited to the basis for the denial as set forth in the peer review report (Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52300[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Radiology Today, P.C. v Progressive Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51724[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Psychology YM, P.C. v GEICO Gen. Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]). As defendant’s witness should not have been precluded from testifying as to the second cause of action, a new trial is required on this cause of action.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for entry of a new judgment in favor of plaintiff in the principal sum of $376.55 on the first cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon, and for a new trial on the second cause of action.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012
Reported in New York Official Reports at Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51489(U))
| Rainbow Supply of NY, Inc. v Clarendon Natl. Ins. Co. |
| 2012 NY Slip Op 51489(U) [36 Misc 3d 140(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2699 K C.
against
Clarendon National Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2010. The order denied 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 appeals from an order which denied its motion for summary judgment dismissing the complaint.
The affidavit submitted by defendant in support of its motion for summary judgment failed to establish that defendant had timely denied the claim at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Thus, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint, as defendant failed to establish that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Accordingly, the order is affirmed. [*2]
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: August 06, 2012
Reported in New York Official Reports at Perfect Point Acupuncture, P.C. v Auto One Ins. Co. (2012 NY Slip Op 51486(U))
| Perfect Point Acupuncture, P.C. v Auto One Ins. Co. |
| 2012 NY Slip Op 51486(U) [36 Misc 3d 140(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2016 K C.
against
Auto One Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered January 14, 2010. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Defendant’s proffered defense to this action is that it timely denied the claims based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs). However, defendant failed to establish that the letters scheduling the IMEs had been mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d [*2]& 11th Jud Dists 2007]). Thus, defendant did not demonstrate that plaintiff’s assignor had failed to comply with a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant’s cross motion for summary judgment dismissing the complaint should not have been granted.
Plaintiff’s motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied. In view of the foregoing, we need not reach plaintiff’s remaining contentions.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012
Reported in New York Official Reports at Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co. (2012 NY Slip Op 51485(U))
| Ocean Diagnostic Imaging, P.C. v Chubb Indem. Ins. Co. |
| 2012 NY Slip Op 51485(U) [36 Misc 3d 140(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-1589 K C.
against
Chubb Indemnity Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered October 16, 2009. The order, insofar as appealed from as limited by the brief, implicitly denied the branch of defendant’s motion seeking to dismiss the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking to dismiss the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, the record establishes that Stephen A. Zinn, M.D., who was the sole officer, director and shareholder of plaintiff, died prior to the commencement of the action (see also Ocean Diagnostic Imaging, P.C. v Merchants Mut. Ins. Co., 15 Misc 3d 9 [App Term, 2d & 11th Jud Dists 2007]). As the record does not demonstrate that the commencement of this action was authorized by someone with the authority to do so (see Business Corporation Law §§ 1507, 1511; see also Matter of Leonard, 199 Misc 138 [1950], affd 278 App Div 668 [1951]; Ocean Diagnostic Imaging, P.C., 15 Misc 3d 9; 38 NY Jur 2d, Decedents’ Estates §§ 53, 1510, 1513, 1521, 1532), the order of the Civil Court is reversed and the branch of defendant’s motion seeking to dismiss the complaint is granted (Deutsch v LoPresti, 272 AD2d 506 [2000]; McCormack v County of Westchester, 255 [*2]AD2d 296 [1998]).
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012
Reported in New York Official Reports at Vladenn Med. Supply Corp. v MVAIC (2012 NY Slip Op 51491(U))
[*1]| Vladenn Med. Supply Corp. v MVAIC |
| 2012 NY Slip Op 51491(U) [36 Misc 3d 141(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2745 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D.
Edwards, J.), entered September 30, 2010. The order denied defendant’s motion for summary
judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck the vehicle in which plaintiff’s assignor was allegedly a passenger, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op [*2]52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see e.g. Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 [2004]), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012Modern Art Med., P.C. v MVAIC (2012 NY Slip Op 51492(U))
Reported in New York Official Reports at Modern Art Med., P.C. v MVAIC (2012 NY Slip Op 51492(U))
[*1]| Modern Art Med., P.C. v MVAIC |
| 2012 NY Slip Op 51492(U) [36 Misc 3d 143(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2766 K C.
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice
Fisher Rubin, J.), entered February 5, 2010. The order denied plaintiff’s motion for leave to enter
a default judgment and granted defendant’s cross motion to open its default and compel the
acceptance of its late answer.
ORDERED that the order is modified by providing that defendant’s cross motion to open its default and compel the acceptance of its late answer 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, plaintiff appeals from an order of the Civil Court which denied its motion for leave to enter a default judgment and granted defendant’s cross motion to open its default and compel the acceptance of its late answer.
When a defendant who has failed to timely answer the complaint seeks to compel the acceptance of his late answer, he must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action (see Lipp v Port Auth. of NY & N.J., 34 AD3d [*2]649 [2006]; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353, 356 [2005]). In the instant case, defendant failed to demonstrate a reasonable excuse for its default because the affidavit executed by defendant’s claim representative made no attempt to explain why defendant had failed to timely answer. In light of the foregoing, defendant’s cross motion to open its default and compel the acceptance of its late answer should have been denied.
Plaintiff’s motion for leave to enter a default judgment was supported by an affirmation from plaintiff’s counsel and the complaint, which had been verified by an attorney. Thus, plaintiff failed to demonstrate its entitlement to a default judgment since plaintiff’s counsel did not establish that he possessed personal knowledge of the facts (see CPLR 3215 [f]; Triangle Props. # 2, LLC v Narang, 73 AD3d 1030 [2010]; Juseinoski, 15 AD3d 353).
Accordingly, the order of the Civil Court is modified by providing that defendant’s cross motion to open its default and compel the acceptance of its late answer is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012Allstate Social Work & Psychological Svcs, P.L.L.C. v MVAIC (2012 NY Slip Op 51498(U))
Reported in New York Official Reports at Allstate Social Work & Psychological Svcs, P.L.L.C. v MVAIC (2012 NY Slip Op 51498(U))
[*1]| Allstate Social Work & Psychological Svcs, P.L.L.C. v MVAIC |
| 2012 NY Slip Op 51498(U) [36 Misc 3d 141(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3109 K C.
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S.
Ottley, J.), entered April 28, 2010. The order granted defendant’s motion for summary judgment
dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.
MVAIC’s motion for summary judgment was predicated upon its claim that plaintiff’s assignor was not a qualified person because she had failed to demonstrate that she was a New York resident (see Insurance Law § 5202 [b]). However, annexed to MVAIC’s moving papers was a sworn notice of claim (Insurance Law § 5208) in which plaintiff’s assignor had set forth her Brooklyn residence. The assignor also set forth the same address in the household affidavit which MVAIC had requested and received (see generally Farragut Corner Med., P.C. v MVAIC, [*2]32 Misc 3d 137[A], 2011 NY Slip Op 51529[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). MVAIC’s conclusory assertion that these sworn documents are insufficient to satisfy Insurance Law § 5202 (b) and that further documentary proof is required lacks merit (see Complete Med. Servs. of NY, P.C. v MVAIC, 33 Misc 3d 127[A], 2011 NY Slip Op 51835[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012Brooklyn Hgts. Physical Therapy, P.C. v MVAIC (2012 NY Slip Op 51500(U))
Reported in New York Official Reports at Brooklyn Hgts. Physical Therapy, P.C. v MVAIC (2012 NY Slip Op 51500(U))
[*1]| Brooklyn Hgts. Physical Therapy, P.C. v MVAIC |
| 2012 NY Slip Op 51500(U) [36 Misc 3d 142(A)] |
| Decided on August 6, 2012 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-124 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph
E. Greco, Jr., J.), entered November 19, 2010. The order granted plaintiff’s motion for summary
judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is denied 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, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
Since MVAIC established that there had been no timely filing of a notice of claim and that
leave had not been sought to file a late notice of claim (see Insurance Law
§ 5208 [a], [c]), plaintiff’s assignor is not a covered person (see Insurance
Law § 5221 [b] [2]). Consequently, a condition precedent to plaintiff’s right to apply for
payment of no-fault benefits [*2]from MVAIC has not been
satisfied (Five Boro Psychological
Servs., P.C. v MVAIC, 35 Misc 3d 133[A], 2012 NY Slip Op 50751[U] [App Term, 2d,
11th & 13th Jud Dists 2012]; M.N.M.
Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U]
[App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is reversed, plaintiff’s
motion for summary judgment is denied and MVAIC’s motion for summary judgment dismissing
the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 06, 2012Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))
Reported in New York Official Reports at Searay Med., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51383(U))
| Searay Med., P.C. v Praetorian Ins. Co. |
| 2012 NY Slip Op 51383(U) [36 Misc 3d 137(A)] |
| Decided on July 26, 2012 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Torres, J.P., Schoenfeld, Shulman,, JJ
570663/11.
against
Praetorian Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Ann E. O’Shea, J.), entered July 15, 2011, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Ann E. O’Shea, J.), entered July 15, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto (see Unitrin at 560).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 26, 2012
Reported in New York Official Reports at Elrac, LLC v Healthy Way Acupuncture PC (2012 NY Slip Op 51392(U))
[*1]| Elrac, LLC v Healthy Way Acupuncture PC |
| 2012 NY Slip Op 51392(U) [36 Misc 3d 1218(A)] |
| Decided on July 26, 2012 |
| Supreme Court, Queens County |
| Markey, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
ELRAC, LLC, Plaintiff,
against Healthy Way Acupuncture PC, Defendant. |
7316/2012
Appearances of Counsel:
For the Plaintiff: The Law Office of Lawrence N. Rogak LLC, by Lawrence N. Rogak, Esq., 3355 Lawson Boulevard, Oceanside, New York 11572
For the Defendant: Gary Tsirelman, P.C., by Selina Chin, Esq., 65 Jay Street, Brooklyn, New York 11201
Charles J. Markey, J.
The following papers numbered 1 to 5 read on this motion by the plaintiff for a temporary
restraining order and preliminary injunction.Papers Numbered
Order to Show Cause – Affidavits – Exhibits………………………………………………………..
1-2
Answering Affidavits – Exhibits…………………………………………………………………………
3-5
The plaintiff commenced this action for a declaratory judgment that it owes no first party benefits which might accrue or be assigned to defendant under the no-fault law, Article 51 of the Insurance Law, based upon allegations that the defendant has engaged in a large-scale illegal scheme involving staged accidents and fraudulent billing practices.
At this juncture, the plaintiff seeks a temporary restraining order and preliminary injunction against the further prosecution of any suits, arbitrations, or other proceedings by the defendant against the plaintiff for causes of action or claims arising under Article 51 of the Insurance Law pending the outcome of this action. The branch of the motion for a temporary restraining order was previously granted pending the determination of the request [*2]for preliminary injunctive relief.
“The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits” (Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d 595, 596 [2nd Dept. 2005]). The decision of whether to grant or deny a preliminary injunction, moreover, lies within the sound discretion of the Supreme Court (Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 625 [2nd Dept. 2011]). In order to obtain a preliminary injunction, the movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury in the absence of a preliminary injunction, and (3) a balancing of the equities in the movant’s favor (CPLR 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; Arthur J. Gallagher & Co. v. Marchese, 96 AD3d 791 [2nd Dept. 2012]; Dover Gourmet Corp. v. Nassau Health Care Corp., 89 AD3d 979 [2nd Dept. 2011]).
In the present action, the Court finds that, while the allegations of fraudulent and potentially criminal conduct asserted in the verified complaint are quite disturbing, the plaintiff fails to meet its burden on this motion because it has not submitted any evidence to support its claims. The plaintiff’s complaint was verified by a no-fault claims representative for its third-party administrator for claims, who is not a person with knowledge of the factual allegations asserted in the complaint, and no supporting affidavit from someone with personal knowledge of the evidentiary facts has been submitted (see, Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2nd Dept. 2005], on remand, 2005 WL 5643779, 2005 NY Slip Op. 30079(U) [Sup Ct Queens County 2005]). The plaintiff thus has not demonstrated a likelihood of success on the merits.
Although this Court previously granted a preliminary injunction in Autoone Ins. Co., v Manhattan Heights Medical, P.C. , (24 Misc 3d 1229(A), 2009 WL 2357009, 2009 NY Slip Op. 51663 (U) [Sup Ct Queens County 2009] [decision by the undersigned]), a matter involving similar allegations to those asserted herein, there is a clear distinction between that case and the one at hand. There, the movant submitted sufficient proof of entitlement to a preliminary injunction through the submission of its verified complaint, an affidavit from an investigator for the plaintiff insurance company, and deposition and examination transcripts which demonstrated, prima facie, a likelihood of success on the merits by proving the veracity of its allegations. In that case, the movant also met the other requirements for establishing that a preliminary injunction should be issued.
In stark contrast, in the case at bar, the only submission offered by the plaintiff on this motion, is the plaintiff’s verified complaint, containing a mere laundry list of bald allegations that are not accompanied or supported by any evidentiary proof. The plaintiff, thus, has fallen far short of meeting its burden on this motion (cf., People by Abrams v. Apple Health [*3]and Sports Club, Ltd. Inc., 174 AD2d 438 [1st Dept. 1991] [injunction would issue to prevent health club operators’ illegal conduct, even without proof of irreparable injury], aff’d, 80 NY2d 803 [1992] [evidence that alleged owner was eventual sole director of health club, had actual knowledge of health club’s fraudulent activities, and participated in health club’s illegal business dealings created substantial likelihood that grounds for holding alleged owner liable would be established]).
Accordingly, the motion for a preliminary injunction is denied.
The temporary restraining order previously imposed is discontinued.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________Hon. Charles J. MarkeyJustice, Supreme Court, Queens
County
Dated: Long Island City, New York
July 26, 2012