Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))

Reported in New York Official Reports at Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))

Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))

Reported in New York Official Reports at Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))

Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50929(U))

Reported in New York Official Reports at Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50929(U))

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

Arguelles M.D., P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50926(U))

Reported in New York Official Reports at Arguelles M.D., P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50926(U))

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

New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 22300)

Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 22300)

New Millennium Med. Imaging, P.C. v GEICO

2022 NY Slip Op 22300 [76 Misc 3d 31]

Accepted for Miscellaneous Reports Publication

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, November 23, 2022

[*1]

New Millennium Medical Imaging, P.C., as Assignee of Shomari Neysmith, Respondent, v GEICO, Appellant.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, September 23, 2022

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel) for appellant.

Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel) for respondent.

Memorandum.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its notice of appeal, from so much of an order of the Civil Court as denied defendant’s motion which had sought to dismiss the complaint, pursuant to CPLR 3211 (a) (5), on the ground that the action is barred by the statute of limitations.

A defendant moving to dismiss a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). It is well settled that the six-year statute of limitations applies to the claim involved herein (CPLR 213 [2]; see Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]; Cautious Care Med., P.C. v Omni Indem. Co., 69 Misc 3d 145[A], 2020 NY Slip Op 51384[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). The time within which an action must be commenced is computed “from the time the cause of action accrued to the time the claim is interposed” (CPLR 203 [a]).

[*2]

“[A]n insurance company must pay or deny [a no-fault] claim within 30 calendar days after receipt of the proof of claim” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see 11 NYCRR 65-3.8 [c]). Indeed, Insurance Law § 5106 (a) provides that no-fault “benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (see 11 NYCRR{**76 Misc 3d at 33}65-3.8 [a]; Roman Chiropractic, P.C. v Lumbermens Mut. Cas. Co., 33 Misc 3d 138[A], 2011 NY Slip Op 52090[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011])—the “claim determination period.” Thus, in a case where an insurance company failed to pay or deny a no-fault claim, and where there had been no timely verification requests, this court stated that “[a] first-party no-fault cause of action accrues 30 days after the insurer’s receipt of the claim” (DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see Cautious Care Med., P.C. v Omni Indem. Co., 69 Misc 3d 145[A], 2020 NY Slip Op 51384[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Of course, the claim determination period does not always run exactly from receipt of the claim form, nor is it always a full 30 days long. As stated by the Court of Appeals:

“If an insurer seeks additional verification, however, the 30-day window is tolled until it receives the relevant information requested (see 11 NYCRR 65-3.8 [a] [1]). . . .

“[A]n insurer that requests additional verification after the 10- or 15-business-day periods but before the 30-day claim denial window has expired is entitled to verification. In these instances, the 30-day time frame to pay or deny the claim is correspondingly reduced (see 11 NYCRR 65-3.8 [j]; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 300 [2007])” (Hospital for Joint Diseases, 9 NY3d at 317-318).

Whether or not there is a toll,^[FN1] if the insurer fails to pay or deny the claim within the claim determination period, the cause of action to recover on that claim accrues at the close of that period (see New Millenium Med. Supply v Clarendon Natl. Ins. Co., 29 Misc 3d 130[A], 2010 NY Slip Op 51820[U], *1 [App Term, 1st Dept 2010] [“the cause of action accrued on the date the claim became overdue—here, 30 days after defendant’s receipt of the claim—not the date of defendant’s untimely {**76 Misc 3d at 34}denial of the claim”]). However, when a claim is timely denied prior to the expiration of the claim determination period, the Appellate Division, First Department, has held [*3]that the cause of action accrues immediately upon the denial (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319, 320 [2008] [the claim therein “was not timely interposed where it had been denied in full by the insurer . . . more than six years before the provider” sought to recover on the claim]).

In New York Med. Rehab., P.C. v Travelers Ins. Co. (40 Misc 3d 76 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), wherein the claim was received by the defendant on December 16, 2002, this court held that the no-fault cause of action therein had accrued, i.e., that payment became “overdue,” on January 14, 2003, the date that the insurer “issued and mailed its denial of claim form” (id. at 81 [emphasis added]). In the motion herein, defendant acknowledged that it had received the claim at issue on September 17, 2011, requiring defendant to pay or deny the claim by October 17, 2011, absent any toll in effect, which plaintiff has not shown to be the case here. Plaintiff commenced this action on October 6, 2017, within six years of October 17, 2011. However, defendant, citing New York Med. Rehab., P.C., argued that plaintiff’s claim accrued prior to October 17, 2011. Defendant demonstrated, prima facie, that it mailed a denial of the relevant claim on October 3, 2011, i.e., six years and three days prior to the commencement of the action on October 6, 2017. Thus, defendant argued, pursuant to New York Med. Rehab., P.C., the action was barred by the statute of limitations.

While this court properly held in New York Med. Rehab., P.C. that the denial of a claim prior to the expiration of the claim determination period commences the running of the statute of limitations (see Matter of Travelers Indem. Co. of Conn., 48 AD3d 319), to the extent that this court further held that a no-fault claimant’s cause of action accrues on the date an insurer “issue[s] and mail[s] its denial of claim form” (40 Misc 3d at 81 [emphasis added]), New York Med. Rehab., P.C. should no longer be followed.^[FN2] Instead, “construing the no-fault regulations as a whole and considering their various sections in reference to each other, as we must” (East Acupuncture, P.C. v Allstate{**76 Misc 3d at 35}Ins. Co., 61 AD3d 202, 210 [2009]), we hold that, where a no-fault claimant receives a denial of claim form prior to the expiration of the claim determination period, the claimant’s right to recover upon that claim accrues upon its receipt of the denial. This conclusion is based upon our reading of 11 NYCRR 65-3.9 (c) which provides in part that “[i]f an applicant does not . . . institute a lawsuit within 30 days after the receipt of a denial of claim form . . . interest shall not accumulate on the disputed claim or element of claim until such action is taken” (emphasis added).

[*4]

The clear implication of 11 NYCRR 65-3.9 (c) is that interest begins to run immediately upon the applicant’s receipt of a denial of a claim prior to the expiration of the claim determination period, so long as a lawsuit is commenced within 30 days following plaintiff’s receipt of the denial of claim form. If interest begins to run from receipt of the denial, then the accrual date for the cause of action arising from the failure to pay the claim is also logically the date the denial of claim was received by the applicant.

In its motion, defendant, relying on this court’s prior statement that the relevant accrual date was the mailing of the denial, proffered prima facie evidence of such mailing but did not offer any proof as to when, or if, the denial of claim form at issue was received by plaintiff. Plaintiff has not, on this record, acknowledged the date it received the denial or whether it ever received it. While proper proof of mailing creates a rebuttable presumption of receipt (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), it does not create a presumption as to exactly when an item is received. In the absence of any rule or prima facie proof of the actual date of receipt, a duly mailed item is presumed received within a reasonable period of time. What is a reasonable period includes various factors, such as where the item was mailed from, how it was mailed (e.g., first-class mail, overnight mail, or otherwise), the nature of the intervening days (e.g., weekends or legal holidays) and when plaintiff claims to have received it, if at all.

We note that CPLR 2103 (b) (2) provides that

“where a period of time prescribed by law is measured from the service of a paper and service is by{**76 Misc 3d at 36} mail, five days shall be added to the prescribed period if the mailing is made within the state and six days if the mailing is made from outside the state but within the geographic boundaries of the United States.”

“By its terms, of course, CPLR 2103 applies [only] to pending actions” (Matter of ATM One v Landaverde, 2 NY3d 472, 478 [2004]), and the time periods at issue here are in claims processing, not litigation. Moreover, that statute concerns the addition of time at the end of a prescribed period, whereas here the question is when the prescribed period should begin. Nevertheless, CPLR 2103 (b) (2), which was designed “to compensate for the delay in receipt of the papers served that is inherent in service by mail” (HSBC Bank USA, N.A. v Maniatopoulos, 175 AD3d 575, 576 [2019]), appears to reflect a legislative finding as to the approximate last day when various mailings are likely to be received, without fixing any specific date for receipt within that time frame (see id. at 576 [noting that the CPLR time period was extended “from three to five days in 1982 because the existing three-day (period) was seen as inadequate”]). Thus, CPLR 2103 (b) (2) may be useful as a guide to help determine the presumptive reasonable date of receipt; however, a properly-mailed item should not automatically be presumed to be received exactly five or six days thereafter. Rather, receipt can, based on the particular facts presented, be presumed to be less than five or six days (for example if it was mailed from the same zip code as the addressee’s) or greater than five or six days after mailing, depending on the factors outlined above.

Here, defendant mailed its denial of claim form on Monday, October 3, 2011, from Woodbury, New York, to Flushing, New York, and plaintiff commenced this action on October 6, 2017. In order to hold that the commencement of this action occurred after the statute of limitations had expired, this court would have to find that it is reasonable to presume that plaintiff received the denial of claim form by October 5, 2011—two days after it was mailed. In [*5]the circumstances presented on this record, we do not find that to be a reasonable presumption.

As defendant did not establish that the accrual date for plaintiff’s cause of action was on or before October 5, 2011, defendant did not demonstrate, prima facie, that the action is barred by the statute of limitations and, consequently, we need not determine whether the cause of action accrued any earlier than October 17, 2011, the date that the claim determination period terminated.{**76 Misc 3d at 37}

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

Aliotta, P.J., Golia and Buggs, JJ., concur.

Footnote 1:We note that, in moving to dismiss a no-fault complaint on statute of limitations grounds, an insurer is not required to demonstrate, prima facie, that a “payment due date was not tolled by a verification request” (A.M. Med., P.C. v Continental Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50389[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Shtarkman v MVAIC, 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Footnote 2:We note that, in order for a denial of claim to be timely, the denial of claim form need only be mailed prior to the expiration of the claim determination period so as to prevent a preclusion of defenses raised in the denial; it does not have to be received prior to the end of that period to avoid preclusion. However, this is a separate question from what the relevant date is as to the accrual of the cause of action.SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50927(U))

Reported in New York Official Reports at SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50927(U))

[*1]

SVP Med Supply, Inc. v GEICO

2022 NY Slip Op 50927(U) [76 Misc 3d 134(A)]

Decided on September 23, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2022

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ
2020-93 K C

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 18, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole argument on appeal, the proof submitted by defendant was sufficient to establish plaintiff’s failure to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Parisien v Ameriprise Auto & Home, 75 Misc 3d 138[A], 2022 NY Slip Op 50581[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 138[A], 2022 NY Slip Op 50576[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Gentlecare Ambulatory Anesthesia Servs. v Geico Ins. Co., 57 Misc 3d 150[A], 2017 NY Slip Op 51518[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 23, 2022New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 50928(U))

Reported in New York Official Reports at New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 50928(U))

[*1]

New Millennium Med. Imaging, P.C. v GEICO

2022 NY Slip Op 50928(U) [76 Misc 3d 134(A)]

Decided on September 23, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2022

PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2020-155 K C

Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 6, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its notice of appeal, from so much of an order of the Civil Court as denied defendant’s motion which had sought to dismiss the complaint, pursuant to CPLR 3211 (a) (5), on the ground that the action is barred by the statute of limitations.

For the reasons stated in New Millennium Med. Imaging, P.C., as Assignee of Shomari Neysmith v GEICO (— Misc 3d —, 2022 NY Slip Op — [appeal No. 2020-96 K C], decided herewith), the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 23, 2022SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50931(U))

Reported in New York Official Reports at SVP Med Supply, Inc. v GEICO (2022 NY Slip Op 50931(U))

[*1]

SVP Med Supply, Inc. v GEICO

2022 NY Slip Op 50931(U) [76 Misc 3d 134(A)]

Decided on September 23, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2022

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ
2020-721 K C

Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered November 13, 2019. 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 appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court limited the issues for trial, in effect pursuant to CPLR 3212 (g), to whether plaintiff had failed to appear for the EUOs. The court, citing Metro 8 Med. Equip., Inc. v ELRAC, Inc. (50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]), found that defendant had not made a prima facie showing of plaintiff’s failure to appear for scheduled EUOs due to the amount of time between the scheduled EUOs and the date on which the affirmation was executed by the attorney who was present to conduct such EUOs, and the affiant’s failure to establish the basis for her recollection of plaintiff’s failure to appear.

Contrary to the determination of the Civil Court, the affirmation submitted by the attorney who was to conduct the scheduled EUOs was sufficient to establish that plaintiff had failed to [*2]appear. As the attorney who was to conduct such EUOs, Megan Dimicelli, Esq., stated that she was present at the location of the scheduled EUOs and that she would have conducted the EUOs if plaintiff had appeared, she possessed personal knowledge that plaintiff had failed to appear (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). To the extent the Civil Court stated that an issue existed with respect to DiMicelli’s recollection of plaintiff’s failure to appear, such a determination was not warranted, as, on its face, DiMicelli’s affirmation was not unworthy of belief (see e.g. Joseph-Felix v Hersh, — AD3d —, 2022 NY Slip Op 04905 [2d Dept 2022]; cf. Metro 8 Med. Equip., Inc. v ELRAC, Inc., 2016 NY Slip Op 50174[U]). In opposition to defendant’s motion, plaintiff could have demonstrated the existence of a material issue of fact by submitting an affidavit stating that plaintiff had appeared for an EUO, but plaintiff failed to do so. As plaintiff did not otherwise challenge the implicit CPLR 3212 (g) findings in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.

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

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 23, 2022Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))

Reported in New York Official Reports at Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))

[*1]

Nassau Chiropractic Servs., P.C. v Travelers Indem. Co.

2022 NY Slip Op 50933(U) [76 Misc 3d 135(A)]

Decided on September 23, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 23, 2022

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ
2021-123 K C

Law Office of Tina Newsome-Lee (Michael L. Rappaport of counsel), for appellant. Sanders, Barshay and Grossman, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Patria Frias-Colón, J.), dated November 12, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and defendant’s subsequent motion for leave to amend its answer and, upon such amendment, to amend its then-pending summary judgment motion to include the additional ground asserted in defendant’s amended answer.

ORDERED that the order is modified by providing that defendant’s initial motion for summary judgment dismissing the complaint is granted; as so modified, the order is affirmed, without costs.

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 had, among other things, failed to appear for duly scheduled examinations under oath (EUOs). Subsequently defendant moved for leave to amend its answer to assert that the limits of the insurance policy had been exhausted and, upon such amendment, to amend its pending summary judgment motion to assert the ground raised in the amended answer. By order dated November 12, 2020, the Civil Court denied both motions.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 [*2]AD3d 1123 [2008]). In addition, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct the EUO of plaintiff on the scheduled dates, were sufficient to establish that plaintiff had failed to appear on those dates (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As a result, contrary to the Civil Court’s determination (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion. In light of the foregoing, defendant’s initial motion should have been granted and its subsequent motion has been rendered academic.

Accordingly, the order is modified by providing that defendant’s initial motion for summary judgment dismissing the complaint is granted.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 23, 2022Parisien v Avis Budget Car Rental, LLC (2022 NY Slip Op 50883(U))

Reported in New York Official Reports at Parisien v Avis Budget Car Rental, LLC (2022 NY Slip Op 50883(U))

[*1]

Parisien v Avis Budget Car Rental, LLC

2022 NY Slip Op 50883(U) [76 Misc 3d 1212(A)]

Decided on September 19, 2022

Civil Court Of The City Of New York, Queens County

Li, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through September 26, 2022; it will not be published in the printed Official Reports.

Decided on September 19, 2022

Julius Francois Parisien, M.D. As Assignee of Diallo, Plaintiff(s), against Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, Defendant(s).

Index No. CV-717121-19/QU


Plaintiff’s counsel:
Law Offices of Gabriel & Moroff, P.C.
2 Lincoln Avenue, Suite 302
Rockville Center, NY 11570

Defendant’s counsel:
Brand, Glick & Brand, P.C.
600 Old Country Road, Suite 440
Garden City, NY 11530 Wendy Changyong Li, J.

The following papers were read on Defendant’s motion for summary judgment [*2]dismissing Plaintiff’s complaint:

            & nbsp;            &n bsp;            &nb sp;            &nbs p;                     Papers            & nbsp;            &n bsp;      Numbered
Defendant’s Notice of Motion and Affirmation dated October 28, 2019 (“Motion“) and electronically filed with the court on December 1, 2020. 1
Plaintiff’s Affirmation in Opposition dated January 13, 2022 (“Opposition“) and electronically filed with the court on the same date. 2
Defendant’s Reply Affirmation dated January 13, 2022 (“Reply“) and electronically filed with the court on January 14, 2022. 3

In a summons and complaint filed January 22, 2015, nonparty Budget Truck Rental, LLC commenced an action in Supreme Court, New York County against Plaintiff among others who provided medical treatment to nonparty claimant Gourdet for injuries sustained in a vehicle collision (“Supreme Court Action“) (Budget Truck Rental, LLC v Darren T. Mollo, D.C., et al., Sup. Ct. NY County, Index No. 150666/15) (see Motion, Aff. of Hyman, Ex. C). In a summons and complaint filed May 9, 2019 in Queens County Civil Court, Plaintiff sued Defendant insurance company to recover $1,636.94 in unpaid first party No-Fault benefits for medical services provided to Plaintiff’s assignor Diallo for injuries sustained in an automobile accident, plus attorneys’ fees and statutory interest (see Motion, Hyman Aff., Ex. A). Defendant now moved for summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff’s action was barred by res judicata and alternatively that a portion of Plaintiff’s claim was partially paid and should be dismissed. Plaintiff opposed Defendant’s motion.

“Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter” (Matter of Hunter, 4 NY3d 260, 269 [2005], see Simmons v Trans Express Inc., 37 NY3d 107, 111 [2021]; Matter of Josey v Goord, 9 NY3d 386, 389 [2007]; Healthway Med. Care, P.C. v American Tr. Ins. Co., 54 Misc 3d 127[A], 2016 NY Slip Op 51786[U] *1 [App Term 2d Dept 2016]; Infinity Chiropractic Health, P.C. v Republic W. Ins. Co., 53 Misc 3d 144[A], 2016 NY Slip Op 51564[U] *1 [App Term 2d Dept 2016]). “Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Simmons v Trans Express Inc., 37 NY3d at 111; O’Brien v City of Syracuse, 54 NY2d 353, 357 [1981], see Matter of Josey v Goord, 9 NY3d at 390; Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817 [2d Dept 2020]). In our instant case, res judicata is inapplicable because Defendant, Avis Budget Car Rental, LLC C/O Sedgwick Claims Management Services, has failed to establish that it is the same party as the plaintiff in the Supreme Court Action, which was Budget Truck Rental, LLC (Astoria Landing. Inc. v New York City Council, 186 AD3d 1593, 1595 [2d Dept 2020]; Burgos v New York Presbyt. Hosp., 155 AD3d 598, 601 [2d Dept 2017]).

Regarding Defendant’s alternative basis for dismissing Plaintiff’s claim, Defendant relied on a copy of a check for $850.00 payable to “Jules F. Parisien,” for which Defendant provided [*3]no foundation for its admissibility. Even assuming a proper foundation, the check referenced a claim number that was not legible. In addition, Defendant presented no evidence associating the claim number on the check with Plaintiff’s claim. Furthermore, the check did not refer to the date Plaintiff provided medical services to Diallo as alleged in the complaint. Finally, the check did not establish timely payment of the claim as required by the No Fault regulations (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [1997]).

CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff’s complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

Here, Defendant failed to establish its payment or timely payment to Plaintiff as argued. Defendant also failed to establish that Plaintiff’s action here was barred by res judicata. Since Defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, the Court denies Defendant’s Motion without considering Plaintiff’s Opposition (see Pullman v Silverman, 28 NY3d 1060, 1062 [2016]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, it is

ORDERED that Defendant’s motion for summary judgment dismissing Plaintiff’s complaint is denied.

This constitutes the Decision and Order of the court.

Dated: September 19, 2022
Queens County Civil Court

____________________________
Honorable Wendy Changyong Li, J.C.C.