Decided on June 3, 2022

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered May 6, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and denial of claim forms 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 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that she was present in her office to conduct the EUO of plaintiff on the scheduled dates and that plaintiff had failed to appear on those dates (see Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). As a result, defendant demonstrated its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; 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]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.

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

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

Law Office of Tina Newsome-Lee (Duane Frankson of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 19, 2018, deemed from a judgment of that court entered November 15, 2018. The judgment entered pursuant to the October 19, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,785.58.

ORDERED that the judgment is reversed, with $30 costs, the order entered October 19, 2018 is vacated, plaintiff’s motion for summary judgment is denied, defendant’s cross motion for summary judgment dismissing the complaint is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 19, 2018 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). A judgment was subsequently entered on November 15, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant established that 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]); that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Greenway Med. Supply Corp. v Travelers Ins. Co., 58 Misc 3d 131[A], 2017 NY Slip Op 51765[U] [App Term, [*2]2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant is entitled to summary judgment dismissing the complaint.

Accordingly, the judgment is reversed, the order entered October 19, 2018 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on May 13, 2022

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

The Rybak Firm, PLLC (Damin J.Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander 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 September 26, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

In its submissions to this court, plaintiff’s sole contention with respect to defendant’s cross motion is that defendant did not prove that plaintiff failed to appear at the EUOs. This argument is without merit, as defendant submitted affidavits by its attorneys who were scheduled to conduct the EUOs, as well as certified transcripts of the EUOs, which were sufficient to establish that element of defendant’s case (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Plaintiff’s contention that defendant failed to timely deny the claims at issue was raised for the first time at the oral argument of this appeal, and is therefore not properly before us and has not been considered (see Opalinski v City of New York, 164 AD3d 1354 [2018]).

Accordingly, the order is affirmed.

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

[*1]

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

New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 66 Misc 3d 1207(A), 2020 NY Slip Op 50017(U), reversed.

APPEARANCES OF COUNSEL

Glinkenhouse Queen (Alan S. Queen of counsel) for appellant.

The Law Office of Thomas Torto (Jason Levine of counsel) for respondent.

Ordered that the order, insofar as appealed from, is reversed, with $30 costs, the branch of plaintiff’s motion seeking to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered December 12, 2017, is granted, and defendant’s cross motion to vacate the judgment and dismiss the complaint is denied.

In or about July 2002, plaintiff commenced this action to recover assigned first-party no-fault benefits for services it rendered in August through October 2000 to its assignor who was injured in a motor vehicle accident on August 20, 2000. Defendant appeared and answered. On July 29, 2009, the State of New York dissolved plaintiff by proclamation. A settlement letter was drafted, which was signed by plaintiff’s attorney on August 12, 2009, which stated that the parties agreed that the action would be discontinued after defendant paid plaintiff{**75 Misc 3d at 56} $621, which sum was inclusive of attorney’s fees, costs and interest. The third paragraph of the letter referenced the provisions of CPLR 5003-a, while a sentence following that paragraph stated, “Please mail your settlement check promptly according to CPLR 5003 [sic, presumably CPLR 5003-a].” On August 13, 2009, defendant’s attorney signed the letter after modifying it by striking out its third paragraph and by adding handwritten language, to wit, “Payment to issue within 90 days with 14 days prior written notice to deft attorneys; judgment to issue in settled amount.” The sentence requesting prompt payment in accordance with the CPLR was not stricken. It is uncontroverted that defendant did not pay the amount set forth in the settlement. [*2]In May 2017, plaintiff sought to enter a judgment and submitted, among other things, a copy of the modified settlement letter and an ex parte proposed judgment to the clerk of the Civil Court. On December 12, 2017, a judgment was entered awarding plaintiff, insofar as is relevant to this appeal, $1,151.90 in interest accruing from August 12, 2009.

In January 2018, plaintiff moved to, among other things, recalculate the interest awarded in the judgment on the ground that it had erroneously been calculated at a simple rate instead of at a compound rate as allowed by Insurance Department Regulations (11 NYCRR) former § 65.15 (h). Defendant opposed the motion and cross-moved for “an Order . . . vacating the judgment . . . in favor of plaintiff and dismissing this action upon the grounds that the Secretary of State dissolved plaintiff and annulled its authority on July 29, 2009 and it has not been reinstated.” Plaintiff opposed the cross motion, to which defendant replied.

By order entered January 3, 2020, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion. The court vacated the judgment pursuant to CPLR 5015 and dismissed the complaint pursuant to CPLR 1017 and 1021 “due to the failure to substitute the Plaintiff as a party within a reasonable time after Plaintiff dissolved” (New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 66 Misc 3d 1207[A], 2020 NY Slip Op 50017[U], *6 [2020]). The court noted that the “record lacks any indication that the seven-year gap [between the August 2009 settlement letter and when plaintiff sought to enter judgment in May 2017] constitutes a reasonable time for Plaintiff to wind up its affairs” (2020 NY Slip Op 50017[U], *9). The Civil Court also found that the settlement{**75 Misc 3d at 57} “included a notice requirement” and that the judgment was “also properly vacated pursuant to CPLR 5015(a)(4) because Plaintiff failed to provide notice prior to entry” (id. at *4, *5). Plaintiff’s motion was denied as moot.

On appeal, plaintiff contends that the branch of its motion seeking to recalculate the statutory no-fault interest should have been granted and that defendant’s cross motion should have been denied, arguing, among other things, that the Civil Court improperly vacated the judgment pursuant to CPLR 5015; that Business Corporation Law §§ 1005 and 1006 control in the case at bar, not CPLR 1017 and 1021; and that the Civil Court improperly determined that plaintiff was not in the process of winding up its business affairs.

Contrary to the determination of the Civil Court, substitution was not required here under CPLR 1017 and 1021. Pursuant to Business Corporation Law §§ 1005 and 1006, following its dissolution, plaintiff was allowed to enter judgment and make its motion as part of the winding up of its business affairs. To the extent that Business Corporation Law §§ 1005 and 1006 can be deemed to be inconsistent with CPLR 1017 and 1021, the Business Corporation Law provisions govern (see CPLR 101). Business Corporation Law § 1005 (a) (2) “defines ‘winding up’ as the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets” (Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340, 349 [1989]). Business Corporation Law § 1006 includes, as part of “winding up,” the right of a dissolved corporation to participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name (Business Corporation Law § 1006 [a] [4]). Since Business Corporation Law § 1006 does not include any time limit for winding up the dissolved corporation’s affairs, it is proper for courts to imply a reasonable period of time (see e.g. Spiegelberg v Gomez, 44 NY2d 920, 921 [1978]).

As the party moving for vacatur of a judgment and dismissal of the complaint on the [*3]ground that plaintiff lacked the capacity to enter judgment or to move to recalculate interest, defendant had the burden of demonstrating, prima facie, that plaintiff was not still winding up its affairs (see e.g. Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818 [2017]; Singer v Riskin, 137 AD3d 999, 1000 [2016]; Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP, 84 AD3d 997 [2011]; Brach v Levine, 36 Misc 3d 1213[A], 2012 NY Slip Op{**75 Misc 3d at 58}51312[U] [Sup Ct, Kings County 2012]). A review of defendant’s initial moving papers shows that it did not argue that plaintiff was not winding up its affairs. For the first time in reply, defendant argued that plaintiff had offered no explanation for its failure to move for entry of a judgment within a reasonable time following defendant’s failure to pay the settlement and that “upon information and belief,” plaintiff has not been engaged in active business operations since 2000. Since all the averments defendant made in support of its motion, both in its initial moving papers and in reply, were insufficient to show that plaintiff was not winding up its business affairs between the time of the August 2009 settlement letter and the time when plaintiff sought to enter judgment in May 2017, defendant failed to show that plaintiff lacked capacity. We note that numerous cases have held that a substantial number of years was not an unreasonable amount of time for a corporation to wind up its affairs (see Lamarche Food Prods. Corp. v 438 Union, LLC, 178 AD3d 910 [2019] [24 years between dissolution and action giving rise to lawsuit]; Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d at 821 [11 years between dissolution and the motion to dismiss cross claims]; Moran Enters., Inc. v Hurst, 66 AD3d 972 [2009] [seven years between dissolution and the commencement of the lawsuit]; cf. Lance Intl., Inc. v First Natl. City Bank, 86 AD3d 479, 480 [2011]). Consequently, defendant did not demonstrate that its cross motion should be granted on the ground that plaintiff is not winding up its affairs.

As acknowledged by the Civil Court (see New Generation Wellness Chiropractic P.C. v Country-Wide Ins. Co., 2020 NY Slip Op 50017[U], *3), defendant did not argue in its cross motion that the settlement letter, as modified, required plaintiff to “provide notice prior to entry” of the judgment (id. at *4) or that the judgment should be vacated on the ground that plaintiff failed to provide such notice. Contrary to the Civil Court’s order, this was not, under the circumstances presented, a proper alternative basis upon which to grant defendant’s cross motion.

Plaintiff properly argues that the statutory no-fault interest awarded in the judgment from August 12, 2009, to the judgment date, December 12, 2017, should be recalculated from a simple rate to a compound rate (see Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). {**75 Misc 3d at 59}Defendant had the opportunity to pay the settlement amount without the accrual of additional interest (see CPLR 5003-a [a]). Its failure to do so (either within the statutory time frame or the 90 days enumerated by modified letter, a determination which we need not make) allowed plaintiff to enter a judgment for that amount “together with costs and lawful disbursements, and interest” (CPLR 5003-a [e]). Contrary to defendant’s argument in its respondent’s brief, nine percent pursuant to CPLR 5004 is not the correct rate of interest because “Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), which were specific directives, supersede the interest provisions contained in CPLR 5004, the more general statute” (Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 156 [2021]). The calculation of interest on the claims at issue is governed by the former no-fault regulations providing for compound interest (see Health Value [*4]Med., P.C. v Country Wide Ins. Co., 2019 NY Slip Op 52036[U]; Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of plaintiff’s motion seeking to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered December 12, 2017, is granted and defendant’s cross motion to vacate the judgment and dismiss the complaint is denied.

Aliotta, P.J., Weston and Toussaint, JJ., concur.

[*1]

Thomas Torto, New York, for appellant.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about February 4, 2021, which denied plaintiff’s motion for summary judgment as against defendants Healthway Medical Care P.C., Acupuncture Now P.C., SB Chiropractic, P.C., and Jules Francois Parisien MD, unanimously affirmed, without costs.

This appeal concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Jeffrey Delacruz was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Delacruz assigned his right to collect no-fault benefits under that policy to his treating medical providers. Those providers applied for no-fault benefits from Country-Wide but were denied.

Country-Wide then brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Delacruz or to the other defendants (all medical-provider assignees of Delacruz). Country-Wide moved for summary judgment on the ground that Delacruz’s failure to appear for scheduled examinations under oath (EUOs) defeats coverage under the no-fault policy, and thus forecloses the medical providers’ claim to benefits.

The court properly denied plaintiff’s motion for summary judgment as premature (see CPLR 3212 [f]). Plaintiff failed to provide a specific objective justification for requesting the examination under oath (EUO). Plaintiff’s reason for the EUO is essential for defendants to oppose plaintiff’s summary judgment motion and this fact is exclusively within the knowledge and control of the movant (11 NYCRR 65-3.5 [e]; see Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]; cf. Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]; Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2d Dept 2014]). Further, plaintiff concedes that it provided no response to defendants’ discovery demands for the “specific objective justification” for its request that the injured claimant submit to an EUO.

We have considered and reject all of plaintiff’s arguments that it is not required to provide claimants with the reason it requested the EUO. An insurer must affirmatively establish that it complied with the strict no-fault insurance claim procedures set forth in 11 NYCRR 65-3.5 (see generally PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). In the absence of any justification for the EUO, plaintiff has failed to establish, as a matter of law, that it complied with the governing regulations (11 NYCRR 65-3.5 [e]; AB Med. Supply at 671; Jaga Med. Servs. at 441; see also American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]).

The court properly rejected plaintiff’s contention that defendants waived any claim as to the reasonableness of the EUO notices by failing to object upon receipt. [*2]In its EUO notices, plaintiff provided no justification for these defendants to object to. In any event, the regulation does not require defendants to lodge any objection to the justification within a specific timeframe. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (262 AD2d 553, 555 [2d Dept 1999]) is inapposite. Concur—Renwick, J.P., Mazzarelli, Gesmer, González, JJ. [Prior Case History: 71 Misc 3d 247.]

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, Esq., P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered February 18, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

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

Contrary to defendant’s contention, defendant failed to establish that it had timely denied plaintiff’s claims after plaintiff failed to appear at two duly scheduled EUOs (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 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]). As defendant did not demonstrate that it was not precluded from raising its proffered defense (see [*2]Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish either that the claims at issue 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 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 is modified by providing that plaintiff’s cross motion for summary judgment is denied.

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

Decided on April 29, 2022

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

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas 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 10, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

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

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see 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]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for [*2]summary judgment dismissing the complaint should have been denied.

The Civil Court denied plaintiff’s cross motion as untimely pursuant to a schedule which the parties had stipulated to more than nine months earlier. Since plaintiff does not argue, much less establish, that its cross motion was timely or set forth a reasonable excuse for plaintiff’s failure to cross-move during the more than eight months plaintiff had to do so, there is no basis to disturb the Civil Court’s denial of the cross motion as untimely.

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

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