SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated August 18, 2010. The order, in effect, denied defendant’s motion to strike the complaint based on plaintiff’s failure to comply with a discovery stipulation.

ORDERED that the order is reversed, without costs, and defendant’s motion to strike the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which, in effect, denied its unopposed motion to strike the complaint on the ground that plaintiff had failed to comply with a May 2010 stipulation. It is uncontroverted that plaintiff did not comply with the terms of the May 2010 stipulation between the parties, which provided that, if plaintiff failed to respond to defendant’s outstanding discovery demands within 30 days, it would be precluded “from offering evidence or contesting any defense as to those items demanded but not provided.” [*2]

The May 2010 stipulation was not “so-ordered” and, thus, did not function as a conditional order of preclusion which becomes absolute upon a failure to comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). However, it was subscribed by the parties’ attorneys (see CPLR 2104). Stipulations of settlement are independent contracts that are subject to the principles of contract law, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Matter of Marquez, 299 AD2d 551 [2002]). The courts will generally deny enforcement of a stipulation where its enforcement would be unjust or inequitable, or would permit the other party to gain an unconscionable advantage (see Malvin v Schwartz, 65 AD2d 769 [1978], affd 48 NY2d 693 [1979]).

Defendant’s discovery demands included, among other things, a request for a declaration as to whether plaintiff had submitted any no-fault claims and, if so, copies of those claims. As plaintiff failed to respond to this demand, we find no basis to deny enforcement of the stipulation, pursuant to which plaintiff is precluded from offering evidence of its claims. Consequently, plaintiff cannot make out its prima facie case.

Accordingly, the order is reversed and defendant’s motion to strike the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 14, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

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 and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the supplies provided. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor, which failed to [*2]meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (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]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), dated December 15, 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 affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the District Court which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

The affidavit by defendant’s no-fault examiner established that defendant was first notified of plaintiff’s assignor’s accident, which occurred on July 11, 2007, through the receipt of the assignor’s NF-2 form, which was dated September 25, 2007. As a result, defendant denied plaintiff’s claims on the ground that proper notice of claim in writing had not been received by defendant within 30 days from the date of accident, as required by Insurance Department Regulations (11 NYCRR) § 65-1.1 (see also New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; Comfort Supply, Inc. v Clarendon Natl. Ins. Co., 33 Misc 3d 135[A], 2011 NY Slip Op 52018[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Thus, defendant [*2]established its prima facie entitlement to judgment as a matter of law, and the burden then shifted to plaintiff to demonstrate a triable issue of fact. In opposition, however, plaintiff did not proffer any proof, but merely speculated that defendant could have received timely notice of the accident from another source. Additionally, despite being informed through the denial of claim forms that the late notice would be excused if plaintiff could provide reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] §§ 65-1.1; 65-2.4 [b]), plaintiff failed to do so. In light of the foregoing, plaintiff failed to demonstrate the existence of a triable issue of fact and, thus, the District Court properly granted defendant’s cross motion for summary judgment dismissing the complaint. Consequently, we need not address the merits of plaintiff’s one-sentence argument made in support of granting its motion for summary judgment.

Accordingly, the order is affirmed.

Molia, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 15, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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 granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

In support of its motion for summary judgment, defendant submitted affidavits by employees of its special investigative unit which were sufficient to establish that letters [*2]scheduling examinations under oath (EUOs) and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, had been timely mailed (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]). Defendant also submitted an affirmation by one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). While plaintiff maintains that an insurer must advise an applicant that its failure to appear for an EUO will be excused where the applicant provides reasonable justification for the nonappearance, we find no basis in the regulations for imposing such a requirement (cf. Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Thus, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Accordingly, the judgment is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 29, 2010. 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, respectively, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff’s remaining contention lacks merit (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 17, 2010. The order, insofar as appealed from, granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered September 13, 2010 awarding plaintiff the principal sum of $3,328.90 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action. A judgment was [*2]subsequently entered, from which this appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit submitted by plaintiff’s billing supervisor was insufficient to establish either that defendant had failed to pay or deny the claims at issue within the requisite 30-day period, or that defendant had issued timely denial of claims that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment upon its first through fifth causes of action (see Westchester Med. Ctr., 78 AD3d 1168).

Defendant’s cross motion for summary judgment was properly denied. Defendant failed to establish that the initial verification and follow-up verification requests were timely 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 & 11th Jud Dists 2007]). Since defendant did not prove that the 30-day claim determination period was tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8), defendant failed to show that the denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear at an independent medical examination (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Progressive Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51334[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon the first through fifth causes of action is vacated, and those branches of plaintiff’s motion are denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 27, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered September 8, 2010. 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.

Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its litigation examiner, and by its special investigative unit and mail room employees, which were sufficient to establish that the EUO scheduling letters and denial of claim [*2]forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, had been timely mailed (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]). Since an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), the order is affirmed.

We note that plaintiff’s remaining contention on appeal, to the effect that defendant failed to establish plaintiff’s failure to appear at the EUOs, is not properly before this court since it is raised for the first time in plaintiff’s reply brief on appeal. In
any event, plaintiff conceded in its papers submitted in opposition to defendant’s motion that plaintiff’s nonattendance was “not in dispute.”
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 2012