SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered May 27, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were “true and correct cop[ies]
of what was sent to Defendant.” The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said officer 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 (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York [*2]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., Weston Patterson and Belen, JJ., concur.
Decision Date: October 03, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 8, 2006. The order granted defendant’s motion to vacate a default judgment and directed plaintiff to accept defendant’s answer as timely.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served an untimely answer and that more than two months later, plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel plaintiff to accept its answer. Defendant’s motion was granted and this appeal by plaintiff ensued.

A plaintiff’s retention of an answer without a timely objection, such as occurred herein, constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52517[U] [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52519[U] [App Term, 2d & 11th Jud Dists]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App Term, 2d & 11th Jud Dists]; cf. Celleri v Pabon, 299 AD2d 385 [2002]). Accordingly, vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious [*2]defense.

In view of the foregoing, the court below providently exercised its discretion in granting defendant’s motion to vacate the default judgment.

Pesce, P.J., and Rios, J., concur.

Golia, J., taking no part.
Decision Date: October 02, 2007

[*1]

Supreme Court, Kings County, September 24, 2007

APPEARANCES OF COUNSEL

Mitchell N. Kaye P.C. (Craig DeMeo of counsel), for Wilda Norgaisse and others, defendants. Picciano & Scahill, P.C. (Mary Ann Candelario-Jones of counsel), for Marie Mirville, defendant. McDonnel & Adels, P.C. (Robert J. Schwerdt of counsel), for plaintiff.

{**17 Misc 3d at 601} OPINION OF THE COURT

Francois A. Rivera, J.

By order to show cause dated May 11, 2007, defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure (hereinafter defendant movants)^[FN*] jointly move this court pursuant to CPLR 5003-a for an order directing that plaintiff State Farm Mutual Automobile Insurance Company pay defendant, Wilda Norgaisse, the amount of $25,000 plus interest from September 29, 2005 in accordance with their stipulation of settlement. Plaintiff opposes the order to show cause.

On June 29, 2006, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office (KCC). The complaint consists of 68 allegations of fact in support of four causes of action for declaratory judgment. Plaintiff alleges the defendants attempted to defraud plaintiff by staging an accident. As a result of the fraud, plaintiff alleges it is entitled to a declaration that its policy with defendant Marie Mirville is null and void and that it has no duty to provide coverage under the policy for any claims for personal injury, no-fault benefits, or uninsured motorist benefits made by or in behalf of any person or entity.

Defendants Wilda Norgaisse, Alonzo Colbert, and Alex Cheure joined issue by their verified answer, filed on May 11, 2007 with the KCC. The answer contained four affirmative defenses and no counterclaims.

Undisputed Facts

The following facts are undisputed. On or about September 26, 2004, State Farm issued a policy, No. 109 96060-c26-32, for a 1996 Hyundai Sonata to Marie Mirville, 28 Dewitt Place, [*2]No. 1, New Rochelle, New York, 10801; said policy affording minimum liability limits of $25,000/$50,000.

Said policy was purchased by State Farm’s insured, Marie Mirville, from a broker named John W. Goon, 4512 Church Avenue, Brooklyn, New York, 11203. On November 9, 2004, approximately six weeks after the issuance of said policy, State Farm’s insured, Marie Mirville, while operating the insured{**17 Misc 3d at 602} Hyundai, was involved in an automobile collision at Rogers Avenue and Linden Boulevard within the confines of the 67th Precinct in Kings County.

In relation to this collision, a claim was made against the aforesaid policy by Marie Mirville. Said claim lists injuries to the driver of the adverse vehicle, Barry Mamadou, and the claimants, Wilda Norgaisse, and Alonzo Colbert.

On or about September 29, 2005, a release was executed by the claimant Wilda Norgaisse and forwarded to State Farm the following day. Predicated upon this release and prior to the commencement of any action, State Farm issued a check, dated October 18, 2005, in the name of their insured, Marie Mirville, in connection with the underlying loss of November 9, 2004, payable to Wilda Norgaisse, in the amount of $25,000.

On or about October 20, 2005, State Farm stopped payment on the aforesaid check. State Farm alleges that after conducting an investigation, it believes the underlying accident was staged and that it is therefore entitled to disclaim coverage.

Defendants bring this order to show cause requesting that the court order State Farm to honor its settlement agreement and pay Wilda Norgaisse $25,000 plus interest retroactive to September 29, 2005, the date she executed the release.

Motion Papers

Defendant movants’ order to show cause consists of an affirmation of their counsel, Patrick J. McGrath, and seven annexed exhibits. Exhibit A is a New York City Police Department accident report (MV-104AN) of the November 9, 2004 collision. Exhibit B is a release signed by defendant Wilda Norgaisse, releasing and discharging codefendant Marie Mirville from all actions for personal injury related to the November 9, 2004 collision. Exhibit C is a check dated October 18, 2005 from State Farm to Wilda Norgaisse in the amount of $25,000. Exhibits D and E are the summons and complaint and verified answer in an earlier action brought by the movants against Marie Mirville in Kings County Supreme Court under index number 34455/05. Exhibits F and G are the summons, complaint and verified answer of the instant underlying action.

Plaintiff’s affirmation in opposition consists of an affirmation of its counsel, Robert Schwerdt, and 13 annexed exhibits. Exhibit A is Marie Mirville’s policy declarations. Exhibit B is the same MV-104AN annexed in the movants’ paper as exhibit A. Exhibit C is State Farm’s auto claim service record of the{**17 Misc 3d at 603} November 9, 2004 collision. Exhibit D is a copy of the same check annexed in the movants’ papers as exhibit C. Exhibits E and F are affidavits signed on March 24, 2006 from State Farm investigators Grace Peters and Maria Castaneda. Exhibit G is a letter, dated February 14, 2006, from Thomas Mansfield, an investigator for New York Automobile Insurance Plan (NYAIP) to Robert Murray, a coordinator for NYAIP. Exhibit H is an Internet search result using the name Marie Mirville. Exhibit I is an Internet search result using the name Wilda Norgaisse. Exhibits J and K are MV-104ANs of automobile collisions that occurred on August 31, and October 16, 2004. Exhibit L is a letter, dated November 1, 2005, from Peter Crescenti, president of International Claims Service and Investigations, Inc. to Grace [*3]Peters, a State Farm investigator followed by a copy of the MV-104AN of the November 9, 2004 collision. Exhibit M is an MV-104AN of an automobile collision that occurred on December 14, 2004.

Defendant movants submitted an affirmation of their counsel in reply to plaintiff’s opposition papers.

Law and Application

There are two specific statutes dealing with enforcement of agreements that should be analyzed in connection with the instant motion, namely, CPLR 2104 and 5003-a. In simple terms, defendant movants seek specific performance of a settlement agreement via the procedural vehicle of an order to show cause and the substantive law of CPLR 5003-a. Defendant movants’ counsel concedes the inapplicability of CPLR 2104 to their motion but argues that CPLR 5003-a does apply and may be extended to authorize the relief they seek.

CPLR 2104 provides as follows:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.”

The Court of Appeals has made a strong statement that the formalities of CPLR 2104 must be met as a prerequisite to{**17 Misc 3d at 604} judicial enforcement of out-of-court stipulations of settlement (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281 [2004]; see generally, Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2104:2, at 761-764). Unless a stipulation of settlement complies with CPLR 2104, it is not enforceable as a stipulation. As both plaintiff and defendant movants have stated in their affidavits, there was no pending action at the time of the agreement to settle.

“CPLR 2104 refers to ‘parties’ and ‘matter[s] in an action’ . . . Before the actual service of a summons there is no action, and the disputants have not yet become parties to one. The CPLR itself is intended to ‘govern the procedure in civil judicial proceedings’ . . . Neither the CPLR in general nor section 2104 in particular have application to the conduct of prospective litigants before a proceeding commences” (Cohen v Coleman, 110 Misc 2d 419, 422 [Sup Ct, Queens County 1981]).

As previously mentioned, when State Farm issued a check to Wilda Norgaisse, they were not parties to any action. Defendant movants argue that notwithstanding the strict statutory language which limits applicability of CPLR 5003-a to actions already commenced, the force and intent of the statute is to promote prompt payment of settlement agreements. They contend that this impetus should be sufficient to authorize judicial enforcement of agreements made prior to commencement of an action.

CPLR 5003-a (a) states in relevant part:

“When an action to recover damages has been settled, any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing action executed on behalf of the settling plaintiff.”

Before 1992, the law imposed no general time limit within which the sum agreed to in the settlement of an action had to be paid. Effective June 30 of 1992, CPLR 5003-a enacted a time limit (L 1992, ch 269). The consequence of not paying the stated amount of the settlement on time is that costs and disbursements will now be added to it, along with interest. If the settlement is substantial, the interest can quickly become so, too. Furthermore, the judgment may be entered with no further notice to the defendant. The purpose of CPLR 5003-a is to encourage{**17 Misc 3d at 605} prompt payment of settlements by having defendants face not only the prospect of additional costs by their tardiness but also the entry of judgment against them without an opportunity to be heard (see generally David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5003-a, at 121-123).

The court, however, may not stray from the unequivocal statutory constraints expressed in CPLR 5003-a. The CPLR itself, and CPLR 5003-a in particular, applies to actions. It may not be invoked to seek judicial enforcement of an agreement made before an action commences. Therefore CPLR 5003-a and 2104 are inapposite to the instant motion for the exact same reason.

It is noted that the defendant movants did not plead a counterclaim alleging breach of the agreement or demanding specific performance of the agreement. In the absence of a cause of action for breach of contract seeking specific performance, defendant movants may lose the opportunity to ever obtain the remedy they seek. The court does not and will not deem the instant order to show cause to be a summary judgment motion pursuant to CPLR 3212. Defendant movants are not precluded from seeking leave of the court to amend their answer to include such a claim and then moving for summary judgment thereafter. However, judicial enforcement of the stipulation by the instant order to show cause is denied.

Footnotes

Footnote *: Defendant movants’ counsel in the first paragraph of his affirmation states that he is the attorney for Wilda Norgaisse, Alonzo Colbert, and Alex Cheure. However, in the second paragraph he advises that these three defendants as well as Marie Mirville affirm through counsel their support of the motion. The court deems the inference that Marie Mirville is one of the movants to be an error and will disregard it pursuant to CPLR 2001.

Nassau Dist Ct

31712/05

Attorneys for Plaintiff: Belesi & Conroy, P.C.

Attorneys for Defendant: Bruno, Gerbino & Soriano, LLP

Andrew M. Engel, J.

The Plaintiff commenced this action to recover no-fault first party benefits for medical services allegedly provided to its assignor on various dated between October 31, 2001 and January 8, 2002, in the total sum of $1,574.35.00, which has not been paid. Issue was joined on or about October 11, 2005. Among the Defendant’s twenty-two affirmative defenses, the Defendant alleges that the treatment in question was performed by an unlicensed psychologist; that at the time the services in question were rendered the Plaintiff’s organizational structure was defective, as it did not have a psychologist as an owner; that the Plaintiff limited liability company was fraudulently formed; and that the psychologists who preformed the subject services were not employees of the Plaintiff, but independent contractors. The Defendant now moves for summary judgment based upon these affirmative defenses. The Plaintiff opposes the motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do.” Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). A movant’s failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University [*2]Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)

The Defendant alleges that the Plaintiff was originally formed in July of 1998 as a Professional Service Limited Liability Company, in the name of “Multiquest Psychological & Acupuncture Services, PLLC.” In support thereof, the Defendant submits a certified copy of the Plaintiff’s Articles of Organization dated July 13, 1998. The Defendant further alleges, and the Plaintiff’s Articles of Organization confirm, that there were only two individuals listed as the “original members and the original managers of the Company,” Yeugeny Gorbatov and Kathryn Clark.

In further support of its motion, the Defendant submits the transcript of an examination under oath of Katheryn Clark, dated April 26, 2004, which has been signed and sworn to by Ms. Clark. In pertinent part, Ms. Clark testified that she was never a member or manager of the Plaintiff; that she never gave anyone permission to use her name as a member or manager of the Plaintiff; that she never had an ownership interest in the Plaintiff; and that the use of her name was a sham. Ms. Clark also testified that, while she did perform work for the Plaintiff, she did so as an independent contractor.

Corroborating Ms. Clark’s testimony is the testimony offered by one Joseph Indelicato, Ph.D., given on September 28, 2005 at an examination before trial conducted in a action pending in Bronx County entitled Multiquest, PLLC a/s/o Raymond Blackwell v. Allstate Insurance Company. In his signed and sworn transcript Dr. Indelicato testified that the inclusion of Ms. Clark as a member or manager of the Plaintiff was “by accident.” (Indelicato Transcript 9/28/05, p. 174 l. 5) and that

Mr. Indelicato further testified that he took over as an owner of the Plaintiff in September 2001; and, at that time there were only two members of the Plaintiff, Yevgeny Gorbatov and someone named Kateriana Chizhova. Neither of these individuals was a psychologist. According to Dr. Indelicato he purchased his interest in the Plaintiff either from Mr. Gorbatov or from an Oleg Nemtsov; he was not sure. The only document ever proffered by the Plaintiff supporting this claim, however, is the face page of a certificate dated September 6, 2001, purporting to show that Joseph Indelicato is the owner of ninety-nine shares of “Multiquest Psychological & Acupuncture Services, PLLC.” The Plaintiff has offered nothing, however, to show that “the said Limited Liability Company has caused this Certificate to be signed by its duly authorized Member(s)/Manager(s) and to be sealed with the Seal of the Limited Liability Company,” as represented on the face of the certificate. Moreover, Mr. Indelicato himself testified that either he was the only one to sign the certificate or it may have been signed by someone else, but he does not know for sure.

Contradicting Mr. Indelicato’s unsupported testimony is a Certificate of Amendment of the Plaintiff’s Articles of Organization dated June 30, 2001, and filed with the Department of State on September 26, 2001, after Dr. Indelicato’s alleged purchase of an interest in the Plaintiff. The Certificate of Amendment indicates that “The Articles of Organization of the Limited Liability Company were filed with the Secretary of State of New York under the original name Multiquest Psychological & Acupuncture Services, PLLC’ on the 14th day of July, 1998[;]” and are amended to change the name of the company to “Psychological and Social Work Services, PLLC.” No where does the Certificate of Amendment indicate that there has been any change in the members and/or managers of the Plaintiff. Confirming this fact is the consent to this filing [*3]issued by the State Education Department, dated September 24, 2001, which lists the only members and managers of the Plaintiff as Yekaterina Chizhova, who is not a psychologis and Kathryn L. Clark, who was erroneously listed as an owner of the Plaintiff.

In opposition to the Defendant’s motion, the Plaintiff relies exclusively upon the affirmation of counsel, which is of no probative value on this motion. Zuckerman v. City of New York, supra .; Heifets v. Lefkowitz, 271 AD2d 490, 706 NYS2d 438 (2nd Dept. 2000); Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 (2nd Dept. 2006) Nevertheless, based upon the evidence produced by the Defendant, the Plaintiff argues that genuine issues of material fact exist concerning the lawful formation of the Plaintiff and whether or not the specific services in question were performed by an employee of the Plaintiff or by an independent contractor. With regard to the former argument, the Plaintiff suggests that the testimony of Kathryn Clark “is inadmissible because it is likely that her testimony is biased.” (Kallos Affirmation 8/10/87, ¶ 4) With regard to the latter argument, counsel erroneously argues that the services in question were provided by a Dr. Desh D. Sachdev and that the Defendant “makes no specific allegations that Dr. Sachdev is not an employee of Multiquest, but rather, an independent contractor.” (Kallos Affirmation 8/10/87, ¶ 14) The Plaintiff further argues that whether or not the services in question were provided by an independent contractor, the Plaintiff may still properly recover for the services billed.

INDEPENDENT CONTRACTORS

Insurance Department Regulation, 11 N.Y.C.R.R. § 65-3.11(a) provides, in pertinent part, “An insurer shall pay benefits for any element of loss, other than death benefits, directly to providers of health care services as covered under section five thousand one hundred two (a) (1) of the Insurance Law ….” Contrary to the Plaintiff’s argument, this regulation mandates that payments be made “directly to the providers of health care services” and not to companies which secure independent contractors to perform such services. The Plaintiff’s reliance upon New Way Medical Care, P.C. v. Liberty Mutual Insurance Co., 12/23/04, NYLJ 17 (Col. 1) is misplaced. As is apparent from the numerous appellate decisions on the issue, the holding of New Way Medical Care, P.C. v. Liberty Mutual Insurance Co., id. has been overruled sub silentio.

In A.B. Medical Services PLLC v. Liberty Mutual Insuarnce Co., 9 Misc 3d 36, 801 NYS2d 690 (App.Term 2nd & 11th Dists. 2005) the court noted, “Pursuant to 11 NYCRR 65.15(j)(1) [now 11 N.Y.C.R.R. § 65-3.11(a)], a provider’s entitlement to seek recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the providers of services.'” In recognition thereof, the court held that a billing provider, which utilizes an independent contractor to provide the services in question, is not a “provider” of the services in question “and is hence not entitled to recover direct payment’ of assigned no-fault benefits from the defendant insurer.”

Similarly, in V.S. Medical Services P.C. v. Allstate Insurance Co., 14 Misc 3d 130(A), 836 NYS2d 490 (App.Term 2nd & 11th Jud. Dists 2007) the court explicitly held:

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 11 NYCRR 65-3.11(a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer

[*4]See also: Rockaway Boulevard Medical P.C. v. Progressive Insurance, 9 Misc 3d 52, 802 NYS2d 302 (App.Term 2nd & 11th Dists. 2005); Metroscan Imaging, P.C. v. Geico Insurance Company, 13 Misc 3d 35, 823 NYS2d 818 (App.Term 2nd and 11th Judicial Districts 2006)

Turning to the facts of the case before this court, there is no support in the record for the Plaintiff’s proposition that the services in question were provided by Dr. Sachdev, who the Defendant fails to discuss. The bills submitted by the Plaintiff indicate that the services in question were provided by Joseph Indelicato, Ph.D. Moreover, the Plaintiff’s Response to Demand for Interrogatories dated December 6, 2005, which are verified by Dr. Indelicato, advise that “Treatment was provided by JOSEPH INDELICATO, Ph.D.” (Plaintiff’s Response to Demand for Interrogatories 12/6/05, ¶ 5) Nevertheless, genuine questions of fact exist concerning Dr. Indelicato’s status with the Plaintiff, i.e. employee vs. independent contractor, on the dates of service here in issue.

On the one hand, the Defendant has submitted testimony from Dr. Indelicato confirming that at one time he performed services for the Plaintiff as an independent contractor. This is corroborated by 1099 Miscellaneous Income Tax reporting forms issued by the Plaintiff to Dr. Indelicato in 2001 for “Nonemployee compensation.” On the other hand, the Defendant submitted testimony from Dr. Indelicato to the effect that sometime before September 2001the independent contractors who performed psychology services for the Plaintiff either became employees of the Plaintiff or ceased performing services for the Plaintiff. This is corroborated by employee W-2 tax reporting forms issued by the Plaintiff in 2001, including one issued to Dr. Indelicato, which the Defendant has submitted. The Defendant has offered nothing other than this conflicting evidence concerning Dr. Indelicato’s employment status with the Plaintiff between October 2001 and January 2002, when the services here in question were rendered.

Recognizing that the court’s function on this summary judgment motion is issue finding, not issue determination, Sillman v. Twentieth Century-Fox Film Corporation, supra .; Ferrante v. American Lung Association, 90 NY2d 623, 665 NYS2d 25 (1997); Miele v. American Tobacco Co., 2 AD3d 799, 770 NYS2d 386 (2nd Dept. 2003), the Defendant’s motion cannot be granted based upon this issue. There remains, however, the question of the propriety of the Plaintiff’s formation.

FRAUDULENT FORMATION

Implementing Insurance Law §§ 5101, et seq., 11 N.Y.C.R.R. § 65-3.16(a)(12) provides:

A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed.

BCL § 1507 provides:

A professional service corporation may issue shares only to individuals who are authorized by law to practice in this state a profession which such corporation is authorized to practice and who are or have been engaged in the practice of such profession in such corporation or a predecessor entity, or who will engage in the practice of such profession in such corporation within thirty days of the date such shares are issued. [*5]

BCL § 1508 further provides that, “No individual may be a director or officer of a professional service corporation unless he is authorized by law to practice in this state a profession which such corporation is authorized to practice and is either a shareholder of such corporation or engaged in the practice of his profession in such corporation.” Limited Liability Company Law §§ 1203 and 1207 are to the same effect.In State Farm Mutual Automobile Insurance Co. v. Mallela, 4 NY3d 313, 794 NYS2d 700 (2005) the Court of Appeals was ask to determine “whether a medical corporation that was fraudulently incorporated under NY Business Corporation Law §§ 1507, 1508 and NY Education Law § 6507(4)(c) [is] entitled to be reimbursed by insurers, under New York Insurance Law §§ 5101, et seq., and its implementing regulations, for medical services rendered by licensed medical practitioners'” on the corporation’s behalf. The court unequivocally answered that question in the negative.

It has since been held that 11 N.Y.C.R.R. § 65-3.16(a)(12) applies to fraudulently formed limited liability companies as well as to fraudulently formed corporations. Multiquest, P.L.L.C. v. Allstate Insurance Company, __ Misc 3d __, __ NYS2d __, 2007 NY Slip Op. 27366,

2007 WL 2682879 (App. Term 2nd and 11th Judicial Districts 2007) It has also been held that this regulation bars payment to a fraudulently formed entity, regardless of whether the unpaid services in question were performed before or after the date on which the regulation took effect [April 2, 2002]. Multiquest, P.L.L.C. v. Allstate Insurance Company, supra ., Metroscan Imaging, P.C. v. Geico Insurance Company, 13 Misc 3d 35, 823 NYS2d 818 (App. Term 2nd and 11th Judicial Districts 2006) The proper licensing of the “provider,” here the limited liability company, has been held to be a condition precedent to payment. Valley Physical Medicine and Rehabilitation P.C. v. New York Central Mutual, 193 Misc 2d 675, 753 NYS2d 289 (App. Term 2nd Dept. 2002); Metroscan Imaging, P.C. v. Geico Insurance Company, supra .; Multiquest, PLLC v. Allstate Insurance Company, 9 Misc 3d 1031, 805 NYS2d 255 (Civ.Ct. Queens Co. 2005)

Like a number of courts which have reviewed the formation of this Plaintiff, See: Multiquest, P.L.L.C. v. Allstate Insurance Company, __ Misc 3d __, __ NYS2d __, 2007 NY Slip Op. 27366, 2007 WL 2682879 (App. Term 2nd and 11th Judicial Districts 2007) [defendant proved that “plaintiff performed psychological services in violation of Limited Liability Company Law sections 1203 and 1207.”]; Multiquest, PLLC v. Allstate Insurance Company, 9 Misc 3d 1031, 805 NYS2d 255 (Civ.Ct. Queens Co. 2005) [“the plaintiff has failed to proffer sufficient evidence to rebut defendant’s allegations that the medical provider was fraudulently incorporated”]; Multiquest, P.L.L.C. v. Allstate Insurance Company, 10 Misc 3d 1061(A), 814 NYS2d 563 (Civ.Ct. Queens Co. 2005)^[FN1] [“at the time it provided psychological services to its assignor and filed its claim in 1998, plaintiff was in violation of the licensing requirements for PLLCs and was fraudulently organized, having filed false articles of organization representing that Clark was an original owner and/or manager, when, in fact, she was neither.”]; Multiquest PLLC v. Allstate Insurance Company, 10 [*6]Misc 3d 1069(A), 814 NYS2d 563 (Civ.Ct. Queens Co. 2005)^[FN2] [“defendant has demonstrated that there is no issue of fact as to plaintiff’s fraudulent incorporation and plaintiff has failed to raise an issue of fact in that regard”], it is the opinion of this court that the Plaintiff has failed to rebut the substantial evidence proffered by the Defendant of the Plaintiff’s fraudulent formation.^[FN3]

The fact that the dates of service in the matter sub judice were subsequent to the dates of service in the above cited “Multiquest” cases is irrelevant. As in Multiquest, P.L.L.C. v. Allstate Insurance Company, __ Misc 3d __, __ NYS2d __, 2007 NY Slip Op. 27366, 2007 WL 2682879 (App. Term 2nd and 11th Judicial Districts 2007), “[t]here is no dispute that plaintiff’s articles of organization stated that the company was to provide, inter alia, psychological services and listed a licensed psychologist [Katheryn Clark] as the provider of those services. However, the named psychologist testified under oath that she was never an owner or member of plaintiff and that she never received a stock certificate or any compensation based on an ownership interest.” As previously indicated hereinabove, while Joseph Indelicato, Ph.D. baldly testified that he purchased an interest in the Plaintiff prior to the dates of service herein, neither Dr. Indelicato nor the Plaintiff has offered any proof to that effect. Moreover, as similarly reported by the Appellate Term, “Defendant also proved that plaintiff’s ownership has changed since its initial organization, and while certain other health services were variously added and dropped, the same psychologist [Katheryn Clark], and no other, continued to be listed as a member and manager of plaintiff.” The Plaintiff has simply failed to offer any evidence to rebut the substantial evidence presented by the Defendant demonstrating that the Plaintiff remained fraudulently organized on the dates of service in issue. Dr. Indelicato’s bald, unsupported and inconsistent testimony, at best, does nothing more than raise a shadowy semblance of an issue of fact, which is insufficient to defeat this summary judgment motion. Orange County-Poughkeepsie Limited Partnership v. Bonte, 37 AD3d 684, 830 NYS2d 571 (2nd Dept. 2007);110 Sand Co. v. Nassau Land Improvement Co., Inc., 7 AD3d 497, 775 NYS2d 578 (2nd Dept. 2004); Spodek v. Park Property Development Associates; 263 AD2d 478, 693 NYS2d 199 (2nd Dept.1999)

Accordingly, the Defendant’s motion is granted and the Complaint is dismissed.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

September 20, 2007 [*7]

___________________________

ANDREW M. ENGEL

J.D.C.

Footnotes

Footnote 1: Judge Kerrigan’s holding that 11 N.Y.C.R.R. § 65-3.16(a)(12) is not to be applied retroactively was recently overruled in Multiquest, P.L.L.C. v. Allstate Insurance Company, __ Misc 3d __, __ NYS2d __, 2007 NY Slip Op. 27366, 2007 WL 2682879 (App. Term 2nd and 11th Judicial Districts 2007).

Footnote 2: Judge Pineda-Kirwan’s refusal to apply 11 N.Y.C.R.R. § 65-3.16(a)(12) retroactively was recently overruled in Multiquest, P.L.L.C. v. Allstate Insurance Company, __ Misc 3d __, __ NYS2d __, 2007 NY Slip Op. 27366, 2007 WL 2682879 (App. Term 2nd and 11th Judicial Districts 2007)

Footnote 3: If properly raised by the Defendant, the doctrine of collateral estoppel should have prevented the Plaintiff’s repeated re-litigation of this issue. Ryan v. New York Telephone Co., 62 NY2d 494, 478 NYS2d 823 (1984); Capital Telephone Co., Inc. v. Pattersonville Telephone Co., Inc., 56 NY2d 11, 451 NYS2d 11 (1982); Choi v. State, 74 NY2d 933, 550 NYS2d 267 (1989)

[*1]

District Court of Nassau County, Third District, September 18, 2007

APPEARANCES OF COUNSEL

Nicolini, Paradise, Ferretti & Sabella, Mineola (Andrew Cox of counsel), for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Michael C. Hayes of counsel), for plaintiff.

{**17 Misc 3d at 584} OPINION OF THE COURT

Howard S. Miller, J. [*2]

Defendant moves unopposed to reargue the court’s denial of a prior motion for severance of the two claims pending in this action. Those claims are brought by the same no-fault plaintiff assignee, arising out of services rendered to two unrelated assignors.

In the underlying motion, defendant cited Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp. (291 AD2d 536 [2d Dept 2002]) for the proposition that claims submitted by unrelated assignors ought to be severed. Mount Sinai, however, is distinguishable in that it also involved several unrelated assignees. That means that it is not subject to the general rule that a single plaintiff may join whatever claims he, she or it may have against an adverse party. (CPLR 601 [a].)

On motion for reargument, the defendant brings two additional cases to the court’s attention: Poole v Allstate Ins. Co. (20 AD3d 518 [2d Dept 2005]) and S.I.A. Med. Supply Inc. v GEICO Ins. Co. (8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud Dists 2005]). Defendant argues that those two cases make it clear that the court has discretion to sever no-fault claims when they arise out of different accidents, and indeed must sever when the plaintiff joins claims from 47 different assignees (as in Poole), or from 11 different assignees (at least in the Second and Eleventh Judicial Districts, as in S.I.A. Med. Supply).

The court understood and understands that it has discretion to sever claims under CPLR 603 when a trial would be unwieldy or confusing to the trier of fact. If this case had involved 47 different assignors, or perhaps even 11, the court would have exercised its discretion to sever. This case, however, involves only two different assignors and two different accidents. Thus, there is little danger of an unwieldy trial or of confusion to the trier of fact.

In reaching its prior decision, the court relied on CPLR 601 (a). “CPLR 601 (a) embodies the modern principle of civil procedure that a party should have maximum freedom to assert multiple claims against the adverse party. The claims need not{**17 Misc 3d at 585} be factually related.”^[FN*] If defendant’s argument were to be accepted, to the effect that two unrelated no-fault claims may not be joined by the same plaintiff, the court would be rendering CPLR 601 (a) essentially meaningless.

The court believes that the State Legislature put CPLR 601 at the beginning of an article for a reason, namely, that it is the general rule, and CPLR 603 is the exception. It follows that the joinder of two claims must nearly always be upheld. It is not necessary for the court to decide now where the line is to be drawn between two claims and 47 claims. That will depend on the circumstances of each case.

Finally, defendant argues that the criteria for evaluating a plaintiff’s voluntary [*3]joinder under CPLR 601 (a) should be the same as the criteria for evaluating an involuntary consolidation of claims under CPLR 602. That argument is seriously flawed because of the “modern principle” cited in the commentaries to CPLR 601. The CPLR gives the plaintiff considerable latitude to join claims under circumstances where there might be insufficient grounds for involuntary consolidation of those claims.

Because the defendant has cited nothing leading the court to believe that it misapprehended the law, the motion to reargue is denied.

Footnotes

Footnote *: Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C601:1, at 298 (emphasis supplied).

—[*1] William A. Hecht, P.C., White Plains, N.Y. (Patricia Hecht of counsel), for appellant.

Lawrence R. Miles, Long Island City, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioner appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated December 8, 2005, which denied the petition, granted the respondent’s cross petition to vacate the award, and directed the parties to resubmit, to the Workers’ Compensation Board, the issue of whether the petitioner’s assignor Maher Kiswani was injured in the course of his employment, and to provide notice to all involved parties of any hearing conducted by the Workers’ Compensation Board.

Ordered that the order is affirmed, with costs.

Maher Kiswani, a livery car driver, was injured in an automobile accident when the livery car he was driving struck a tree. Kiswani received medical treatment from Lutheran Medical Center (hereinafter Lutheran), and assigned his insurance benefits to it. Lutheran then sought payment of its medical fees from Hereford Insurance Company (hereinafter Hereford), the no-fault insurance carrier for the livery cab. When Hereford refused to pay, Lutheran demanded arbitration.

After appearing before a no-fault arbitrator, Hereford recommended submitting the question of whether Kiswani was injured in the course of his employment to the Workers’ Compensation Board (hereinafter the Board), and Lutheran voluntarily withdrew its claim before the arbitrator. After a hearing, the Board’s administrative law judge found that Kiswani was not injured [*2]in the course of his employment. Hereford, however, did not receive notice of the workers’ compensation hearing and did not participate in it.

Relying in part on the determination of the administrative law judge, Lutheran again sought to recover no-fault benefits from Hereford at a no-fault arbitration hearing. At that hearing, Hereford argued that it was not given notice of the workers’ compensation hearing and sought to introduce evidence that Kiswani was injured during the course of his employment. The arbitrator precluded Hereford from introducing the evidence because the issue had already been decided by the Board. The arbitrator awarded Lutheran the no-fault benefits, and the determination was confirmed by a master arbitrator. The Supreme Court vacated the arbitration award, holding that Hereford should have been given notice of the workers’ compensation hearing, and directed the parties to resubmit the employment issue to the Board, with notice to all involved parties of any hearing held by the Board. We affirm.

The Supreme Court properly vacated the arbitration award because Hereford should have been notified of the workers’ compensation hearing. Where a party, such as Hereford in this case, is not afforded an opportunity to participate in a hearing before the Board, it is not bound by the Board’s determination (see Liss v Trans Auto Sys., 68 NY2d 15 [1986]; Mohn v Smith, 271 AD2d 662 [2000]; Matter of Wofsy v Dial Car, 211 AD2d 52 [1995]).

The petitioner’s remaining contentions are without merit. Spolzino, J.P., Santucci, Florio and Angiolillo, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

D’Ambrosio & D’Ambrosio, P.C., Irvington, N.Y. (John P. D’Ambrosio of counsel), for respondent.

In an action to recover no-fault insurance benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 13, 2006, which denied its motion for summary judgment on the complaint, and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

This case has its genesis in a one-car accident which occurred on February 3, 2006 and which resulted in serious injuries to the driver. At that time, the vehicle was insured under a policy of insurance issued by the defendant, Progressive Casualty Insurance Company (hereinafter Progressive). According to the police accident report, the driver of the car was cited for unsafe speed and driving while intoxicated.

Following the accident, the driver was transported to Westchester Medical Center (hereinafter the Hospital), where she remained until March 3, 2006. On March 14, 2006 the Hospital sent a hospital facility form (form N-F5) and a form UB-92 to Progressive, by certified mail, return receipt requested, seeking no-fault benefits in payment of the hospital bill. As per the return receipt, Progressive received these forms on March 16, 2006. [*2]

In support of its motion for summary judgment on the complaint, the Hospital submitted evidentiary proof that Progressive did not pay or deny the claim for no-fault medical payments within 30 days of receipt of the claim, as required by 11 NYCRR 65-3.8 (c). However, the evidence submitted by Progressive in opposition to the motion, and in support of its own cross motion for summary judgment dismissing the complaint, established that Progressive timely sought additional verification regarding the issue of the driver’s alleged intoxication at the time of the accident, and that such information was never received (see 11 NYCRR 65-3.5 [a], [b], [c]; 65-3.8 [g]; cf., Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Under such circumstances, where there is no triable issue of fact as to whether the Hospital provided Progressive with the required information, the Hospital’s claim for payment was premature. Accordingly, the Supreme Court properly granted Progressive’s motion for summary judgment dismissing the complaint (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]) Spolzino, J.P., Santucci, Florio and Angiolillo, JJ., concur.

—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Rosa Maria Patrone of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Lally, J.), entered October 3, 2006, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate ” ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands. Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126
(3) due to plaintiff’s inadequate response to defendant’s discovery demands, its failure to amend or supplement the incomplete and/or inadequate responses which defendant rejected and its failure to offer any response to defendant’s supplemental interrogatories or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.

Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. [*2]Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its utterly inadequate response to defendant’s discovery demands, its failure to supplement or amend its responses after they were rejected by defendant, its failure to offer any response to defendant’s supplemental interrogatories and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 28, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Appeal from so much of the order as granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to, inter alia, strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide discovery. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce plaintiff’s principal for an examination before trial. The instant appeal by plaintiff ensued.

We do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff’s motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff’s motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant’s argument. Consequently, the branch of the order which denied plaintiff’s [*3]
motion for summary judgment is affirmed (see id.; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

Moreover, since plaintiff failed to submit written opposition to defendant’s cross motion to compel disclosure, that branch of the order which granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce Philip D. Goldstein for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion to compel disclosure is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007