Decided on July 30, 2021

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

Decided on July 30, 2021

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

[*1]

Civil Court of the City of New York, Kings County, July 28, 2021

APPEARANCES OF COUNSEL

Brian E. Kaufman for defendant.

Richard Rozhik for plaintiff.

The decision/order on defendant’s motion for summary judgment and plaintiff’s cross motion for summary judgment is decided as follows:

It is well settled that a proponent for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

A moving defendant seeking summary judgment to dismiss the complaint based upon failure to appear for an examination under oath (hereinafter EUO) must show timely mailing of the EUO scheduling letters and that the assignee, in fact, failed to appear (see 11 NYCRR 65-1.1; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2d Dept 2020]).

Defendant did so here. Defendant established that it scheduled plaintiff’s EUO four times by letters dated, October 26, 2017, January 10, 2018, March 26, 2018, and May 25, 2018, for EUOs noticed for January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018, respectively. Defendant also established that plaintiff failed to appear at each of the noticed EUOs.

Moreover, defendant demonstrated that plaintiff repeatedly sent letters to counsel for Nationwide stating that it needed two additional months to appear for the EUO, while requesting [*2]an explanation regarding the basis of the EUO and impermissibly demanding a $3,500 appearance fee per claimant to appear at the noticed examinations under oath. The said letters were sent on December 27, 2017 (in relation to the January 8, 2018 EUO), March 16, 2018 (in relation to the March 20, 2018 EUO), May 9, 2018, and May 21, 2018 (in relation to the May 23, 2018 EUO), and June 28, 2018 (in relation to the July 12, 2018 EUO). Each of the aforementioned letters were sent within days or weeks of the respective scheduled EUOs although each EUO request provided nearly two months’ notice as per plaintiff’s request to accommodate plaintiff’s claim that it had a busy calendar. Despite repeatedly claiming to be unavailable to attend the EUO and successfully obtaining two{**73 Misc 3d at 253} months’ adjournment, plaintiff failed to submit an affidavit of an individual with personal knowledge to establish its unavailability on any of the dates the EUO was noticed for or an affidavit attesting to any date it provided defendant that plaintiff would be available to appear.

The purpose of the No-Fault Law and regulations, Insurance Law § 5102 et seq. and 11 NYCRR part 65, is to ensure prompt payment of medical claims for treatment provided to people injured in automobile accidents regardless of fault. If an EUO is requested as additional verification an insurer must schedule it within a reasonable time frame and as “expeditiously as possible.” (Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49, 51 [App Term, 2d Dept, 2d & 11th Jud Dists 2008].) Plaintiff frustrated the intent of the no-fault regulation by attempting to delay the claim over a period of nine months by claiming it needed two months’ notice for each noticed EUO, thereafter receiving two months’ notice of the EUOs and then continuing to claim it was unavailable and further, without authority, requiring $3,500 for the appearance.

The record demonstrates that plaintiff failed to appear for EUOs scheduled on four occasions, January 8, 2018, March 20, 2018, May 23, 2018, and July 12, 2018. Moreover, the record demonstrates that although defendant Nationwide attempted to accommodate plaintiff by noticing the EUO four times at plaintiff’s request, plaintiff nonetheless failed to appear for any of the noticed EUOs. The last scheduled EUO was for July 12, 2018, and the claims were timely denied on July 19, 2018.

Both parties were given an opportunity to orally argue this motion, at which time plaintiff raised the issue of a timely denial based on a recent case, Quality Health Supply Corp. v Nationwide Ins. (69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). It appears that Quality Health stands for the proposition that a denial issued more than 30 days after the second EUO no-show, despite the scheduling of subsequent EUOs, is untimely. In Quality Health, the record before the court failed to establish that there were any objections to the EUO request and/or requests seeking an adjournment or postponement of the EUO.

The court finds that the case herein is distinguishable from Quality Health because the defendant herein demonstrated to the court that plaintiff requested that defendant Nationwide notice the EUO additional times, and that defendant in good faith was attempting to accommodate plaintiff’s request by rescheduling the EUOs.{**73 Misc 3d at 254}

Defendant has submitted sufficient proof to demonstrate that plaintiff failed to appear at four duly scheduled EUOs and therefore, failed to comply with a condition precedent to coverage. The plaintiff failed to provide evidence to rebut defendant’s showing.

Plaintiff’s contention that defendant is unable to establish the January 8, 2018 no-show as the transcript states a time of 11:45 p.m. (as opposed to 11:45 a.m.) lacks merit. The court finds that the EUO was noticed for 11:00 a.m. and that the affidavit of Allan Hollander stated that the scheduled start time of the EUO was 11:00 a.m. This is an obvious error in the transcript. Further, the December 27, 2017 correspondence from The Rybak Firm, PLLC, confirmed that FJL Medical Services PC would “be unavailable to appear for the requested EUO currently scheduled for [*3]January 8, 2018.” The court finds that the error in the transcript is insignificant to raise a triable issue of fact.

In light of the above, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed.

Law Office of Goldstein, Flecker & Hopkins (Alison M. Chulis of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 24, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by a declaratory judgment entered in the Supreme Court, Nassau County, or, in the alternative, on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order dated January 24, 2020, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was defendant’s defense that plaintiff had failed to appear for duly scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment.

Defendant’s motion for summary judgment dismissing the complaint should have been granted under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) since, under the circumstances, any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Healing Art Acupuncture, P.C. v 21st [*2]Century Ins. Co., 59 Misc 3d 139[A], 2018 NY Slip Op 50583[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Even absent the declaratory judgment, defendant’s motion should have been granted on the alternate ground. Defendant established that the initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and plaintiff has not rebutted those elements of defendant’s prima facie case. Moreover, the Civil Court held, in effect pursuant to CPLR 3212 (g), that defendant had established the timely mailing of its denial of claim form, which finding has not been challenged by plaintiff.

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

ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered December 17, 2018. The judgment, entered pursuant to an order of that court entered March 20, 2013 granting defendant’s motion for summary judgment dismissing the complaint, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the first through fourth causes of action on the ground that verification of the claims comprising those causes of action remained outstanding, and dismissing the fifth and sixth causes of action on the grounds that defendant had timely denied the claims based on a lack of medical necessity, and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff opposed the motion. In an order entered March 20, 2013, the Civil Court granted defendant’s motion. Plaintiff appeals from a judgment entered December 17, 2018 dismissing the complaint.

Plaintiff’s argument regarding the adequacy of its verification responses lacks merit. Defendant demonstrated that it had not received all of the requested verification as to the claims underlying the first four causes of action, and, thus, that those causes of action are premature (see New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50925[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and plaintiff failed to raise a triable issue of fact with respect thereto.

Contrary to plaintiff’s further contention, plaintiff did not demonstrate the existence of a [*2]triable issue of fact in opposition to defendant’s showing that the services at issue in the claims underlying the fifth and sixth causes of action lacked medical necessity and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule.

Accordingly, the judgment is affirmed.

TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan and Roman Kravchenko of Cousnel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 20, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint on the grounds that the services at issue lacked medical necessity and that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect, pursuant to CPLR 3212 (g), that defendant had established that it had timely denied plaintiff’s claims.

In support of its motion, defendant submitted an affirmed report from the doctor who had performed an independent medical examination (IME) of plaintiff’s assignor before the services at issue had been rendered. The IME report set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for further treatment. Defendant’s prima facie showing was not rebutted by plaintiff. In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s 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 [*2]51502[U] [App Term, 2d Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]). In light of the foregoing, we reach no other issue.

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

ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered March 27, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $1,498.09.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered March 27, 2019 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $1,498.09. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

For the reasons stated in Ksenia Pavlova, D.O., as Assignee of David Wright v Global Liberty Ins. (— Misc 3d &mdash, 2021 NY Slip Op — [appeal No. 2019-1634 K C], decided herewith), the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking no part.

Decided on July 23, 2021

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 18, 2019. The judgment, entered upon a decision of that court dated February 21, 2019, after a nonjury trial, awarded plaintiff the principal sum of $2,111.94.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 21, 2019 is deemed a premature notice of appeal from the judgment entered April 18, 2019 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from a judgment, after a nonjury trial, awarding plaintiff the principal sum of $2,111.94. At the outset of the trial, the parties stipulated that the sole issue for trial would be the application of the workers’ compensation fee schedule, and that the instant action would be consolidated for trial with two other actions involving the same provider and insurer. Following the trial, the Civil Court found in favor of plaintiff.

When reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 493 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

In the present case, the record supports the finding of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. Consequently, we find no basis to disturb the Civil Court’s determination.

Accordingly, the judgment is affirmed.

ALIOTTA, P.J., and GOLIA, J., concur.

ELLIOT, J., taking no part.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. McDonnell, Adels & Klestzick, PLLC (Christopher Stevens of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 13, 2019. The order, insofar as appealed from, denied plaintiff’s motion to vacate the administrative dismissal of the action and, upon such vacatur, for the entry of a default judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In or about October 2013, plaintiff commenced this action to recover, among other things, the principal sum of $485.52 in assigned first-party no-fault benefits for injuries its assignor sustained in a motor vehicle accident. In November 2013, a stipulation of discontinuance was entered into whereby the parties agreed that, by December 16, 2013, defendant would pay plaintiff the sum of $588.46, and, if defendant failed to do so, plaintiff, without notice, could seek entry of a default judgment pursuant to CPLR 3215 (i). It is uncontroverted that, as of December 16, 2013, defendant had only paid plaintiff the sum of $538.46. In August 2018, plaintiff filed papers with the court clerk seeking the entry of a default judgment in the total sum of $1,221.96. The filing was rejected because the action had been administratively dismissed. Thereafter, in March 2019, plaintiff moved to vacate the dismissal and, upon such vacatur, for the entry of a default judgment, arguing, among other things, that it was entitled to interest on the original sum sought, plus costs and disbursements. Defendant opposed the motion. By order dated June 13, 2019, the Civil Court denied the motion, but directed defendant to “pay the $50.00 difference between the payment made and the stipulation within 30 days.” Plaintiff appeals from so much of the order as denied its motion.

A default judgment can only be entered, pursuant to CPLR 3215 (i), in an action that is pending (see David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:21 [“the statute assumes the pendency of an action”]). In the case at bar, there is no indication in the record on appeal that defendant ever appeared in the action or answered the complaint. Moreover, the stipulation was not filed with the Civil Court, as it provided that it “may be filed with the Clerk of the Court without further notice only after issuance of service by mail of the within payments” (emphasis added), and the full amount due under the stipulation was concedely never paid. Therefore, it can reasonably be assumed that the action was administratively dismissed due to plaintiff’s failure to move for the entry of a default judgment within one year after defendant’s default in answering (see CPLR 3215 [c]).

“The language of CPLR 3215 (c) is not, in the first instance, discretionary, but mandatory inasmuch as courts ‘shall’ dismiss claims (CPLR 3215 [c]) for which default judgments are not sought within the requisite one year period, as those claims are then deemed abandoned” (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308 [2011]; see Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020 [2017]; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671 [2016]). The failure to timely move for the entry of a default judgment, however, may be excused upon a showing of sufficient cause which requires the plaintiff to demonstrate a reasonable excuse for the delay and a potentially meritorious cause of action (see Myoung Ja Kim v Wilson, 150 AD3d at 1020; HSBC Bank USA, N.A. v Grella, 145 AD3d at 671; Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764 [2015]). As plaintiff’s motion papers did not make a sufficient showing warranting the relief sought, we find that the Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion to vacate the dismissal of the complaint and, upon such vacatur, for the entry of a default judgment. We pass on no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.