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 (Diccia T. Pineda-Kirwan, J.), entered October 24, 2005. The order denied plaintiff s cross motion for summary judgment and granted defendant’s unopposed motion to compel discovery to the extent of requiring plaintiff to produce, for a deposition, a physician who treated plaintiff’s assignor.

Appeal from so much of the order as granted defendant’s motion to compel discovery dismissed.

Order, insofar as reviewed, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for health care services rendered to its assignor, defendant moved to compel depositions and plaintiff cross-moved for summary judgment. The court below denied plaintiff’s cross motion and granted defendant’s unopposed motion to the extent of directing plaintiff to produce a treating provider for a deposition. Since plaintiff failed to submit written opposition to defendant’s motion to compel discovery, to the extent the order granted defendant’s motion, it 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 motion to compel discovery is dismissed.

Plaintiff’s appeal from the branch of the order which denied its cross motion for summary judgment is without merit. As noted by defendant, the affidavit submitted by plaintiff’s corporate officer 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 (see Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., ___Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483, supra).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 1, 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 (Howard G. Lane, J.), entered June 30, 2005. The order, insofar as appealed from, denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records.
In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s officer 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 (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s cross motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, 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 (Bernard J. Graham, J.), entered August 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were timely mailed.

Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed.

Weston Patterson, J.P., Golia and Rios, 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 (Peter Paul Sweeney, J.), entered October 13, 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 a corporate officer of plaintiff, and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. After defendant opposed the motion, the court denied plaintiff’s motion, holding that plaintiff’s moving papers failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer 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 (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., Misc 3d , 2007 NY Slip Op [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., ___ Misc 3d ___, 2006 NY Slip Op 26483 [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Rios and Belen, 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 (Eileen Nadelson, J.), entered December 19, 2005. The order denied defendant’s motion to vacate the default judgment and to compel plaintiff to accept its late answer.

Order modified by granting defendant’s motion to the extent of vacating the default judgment entered against it; as so modified, 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 thereafter plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel
plaintiff to accept its answer on the ground that plaintiff waived the untimeliness of the answer by failing to reject it. Defendant’s motion was denied and this appeal ensued.

A plaintiff’s retention of an answer without a timely objection constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]; Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., ___ Misc 3d ___, 2006 NY Slip Op ______ [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., Misc 3d ___, 2006 NY Slip Op [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]). Accordingly, to the extent plaintiff’s application for a default judgment was premised upon plaintiff’s representation that defendant was in default, such representation was incorrect and vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious defense (see Avenoso v Avenoso, 266 AD2d 326 [1999]; see generally CPLR 5015 [a] [3]). Since plaintiff waived any objection to the [*2]untimeliness of the answer, plaintiff is deemed to have accepted the answer. Consequently, to the extent that defendant sought to compel acceptance of the answer, that branch of defendant’s motion is denied as academic.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 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 (Kathy J. King, J.), entered October 13, 2005. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In an action to recover assigned first-party no-fault benefits, a plaintiff generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits is overdue (see e.g. Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff’s motion, defendant’s no-fault litigation examiner stated that defendant’s denial was based upon plaintiff’s assignor’s nonattendance at independent medical examinations (IMEs), requests for which were made prior to defendant’s receipt of the claim form. As plaintiff correctly asserted, defendant was required to establish by proof in admissible form that the IME notifications were mailed and that plaintiff’s assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]). The record reflects that Allegiance Health was responsible for scheduling the IMEs and for mailing the IME notices. Since defendant’s examiner was not [*2]responsible for the scheduling of IMEs or for the mailing of IME notifications, her affidavit was insufficient to establish proper mailing of the IME request letters or plaintiff’s assignor’s failure to appear for the scheduled IMEs. Accordingly, defendant failed to raise a triable issue of fact.

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: January 31, 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 (Milagros A. Matos, J.), entered October 27, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, 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.

Defendant’s assertion that it timely denied the claims lacks merit because the
record does not contain an affidavit from a person with personal knowledge either stating that the denial of claim forms were mailed or setting forth “a sufficiently detailed description of standard office mailing procedure so as to give rise to the presumption of mailing” (S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to establish that it paid or denied the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses including its defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) and its defenses of fraudulent billing and excessive fees (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]).

However, defendant was not precluded from asserting its defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that the affidavit of defendant’s investigator was sufficient to demonstrate that the defense was based upon a [*2]“founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Since defendant raised a triable issue of fact as to whether there was a lack of coverage, the lower court properly denied plaintiff’s motion for summary judgment (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]).

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