Decided on November 6, 2020

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

Decided on November 6, 2020

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered September 12, 2018. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

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 cross motion which had sought summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of the branch of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016, defendant submitted an affidavit by the general manager of Empire Stat Med Review, P.C., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor failed to appear for the duly scheduled IMEs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage (id. at 722). As defendant’s cross motion further established that defendant timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, and plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s cross motion, the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 should have been granted.

Contrary to defendant’s contention, defendant’s cross motion failed to establish that defendant had timely denied the remaining claims at issue after plaintiff allegedly failed to appear at both an initial and a follow-up EUO. As defendant did not demonstrate that it is not precluded from raising this proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant is not entitled to summary judgment upon the branch of its cross motion seeking summary judgment dismissing the remaining portion of the complaint.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered from May 19, 2016 through May 25, 2016 is granted.

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

Decided on November 6, 2020

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

Decided on November 6, 2020

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

Decided on November 6, 2020

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

Goldber, Miller & Rubin, P.C. (Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered April 23, 2018. The judgment, insofar as appealed from as limited by the brief, entered pursuant to so much of an order of that court entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, awarded plaintiff the principal sum of $2,523.37 upon the first cause of action.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff’s motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of a judgment of the Civil Court entered April 23, 2018 as awarded plaintiff the principal sum of $2,523.37 upon the first cause of action, entered pursuant to so much of an order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon that cause of action.

Plaintiff failed to establish its prima facie entitlement to summary judgment upon the first cause of action, since plaintiff did not establish either that defendant failed to timely deny the claim at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip [*2]Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). In any event, in opposition to the branch of plaintiff’s motion seeking summary judgment upon the first cause of action, defendant established the existence of a triable issue of fact as to whether the supplies allegedly furnished by plaintiff were medically necessary. We note that the non-substantive technical defect on the denial of claim form regarding the date the requested verification was received did not affect the validity of the denial of claim form (see 11 NYCRR 65-3.8 [h]). Therefore, the branch of plaintiff’s motion seeking summary judgment upon the first cause of action should have been denied.

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the order entered February 9, 2018 as granted the branch of plaintiff’s motion seeking summary judgment upon the first cause of action is vacated, and that branch of plaintiff’s motion is denied.

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered April 13, 2018. The order denied plaintiff’s motion for leave to enter a judgment upon defendant’s failure to appear or answer the complaint and granted defendant’s cross motion to open its default and to compel plaintiff to accept defendant’s late answer.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for leave to enter a default judgment is granted and defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for leave to enter a judgment upon defendant’s failure to appear or answer the complaint and granted defendant’s cross motion to open its default and to compel plaintiff to accept defendant’s late answer.

A defendant seeking to open a default in answering based on an excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the motion court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

While a claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005), the claim must be supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Upon a [*2]review of the record, we find that the Civil Court improvidently exercised its discretion in granting defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer, as defendant failed to meet its burden of demonstrating a reasonable excuse for its default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc., 67 NY2d at 141).

“In order to be entitled to enter a default judgment upon a defendant’s failure to appear or answer the complaint, a plaintiff must submit evidence of service of the summons and complaint upon the defendant, evidence of a viable cause of action, and evidence of the defendant’s default in appearing or answering (see CPLR 3215 [f]; L & Z Masonry Corp. v Mose, 167 AD3d 728, 729 [2018]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1194 [2017]; Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969, 970 [2016])” (Glanz v Parkway Kosher Caterers, 176 AD3d 686, 688 [2019]). Here, plaintiff satisfied these requirements.

Accordingly, the order is reversed, plaintiff’s motion for leave to enter a default judgment is granted and defendant’s cross motion to open its default in answering and to compel plaintiff to accept defendant’s late answer is denied.

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

Decided on November 6, 2020

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William P. Kleen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 28, 2018. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied; as so modified, the order, insofar as appealed from, 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, asserting, insofar as is relevant to this appeal, that it had not received the claims underlying the second, third, and sixth through ninth causes of action, and that with respect to the fourth and fifth causes of action, plaintiff had not complied with a condition precedent to coverage because he had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered February 28, 2018, the Civil Court, insofar as is relevant to this appeal, granted the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action and denied the branches of plaintiff’s cross motion seeking summary judgment upon those causes of action.

The affidavit of defendant’s claims litigation representative established that defendant had [*2]not received the claim forms underlying the second, third, and sixth through ninth causes of action. However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that those claim forms had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; see also Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In light of the foregoing, there is a triable issue of fact as to whether those claims were timely submitted to defendant.

Plaintiff correctly argues that defendant failed to demonstrate that it was entitled to summary judgment dismissing the fourth and fifth causes of action based on plaintiff’s failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims underlying those causes of action, and, therefore, the request was a nullity as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on these causes of action, as the proof submitted in support of its motion failed to establish either that the claims had not been timely denied or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the second through ninth causes of action are denied.

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