Reported in New York Official Reports at Palladium Car & Limo Serv. Corp. v Liberty Mut. Ins. Co. (2004 NY Slip Op 50987(U))
| Palladium Car & Limo Serv. Corp. v Liberty Mut. Ins. Co. |
| 2004 NY Slip Op 50987(U) |
| Decided on July 22, 2004 |
| Civil Court, Kings County |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Civil Court, Kings County
PALLADIUM CAR & LIMO SERVICE CORP., a/a/o Rafael Fuentes, Plaintiff,
against LIBERTY MUTUAL INSURANCE COMPANY, Defendant. |
72088/03
Donald Scott Kurtz, J.
Plaintiff moves, pursuant to CPLR §3212, for an order granting summary judgment on [*2]the ground that no issue of fact exists with respect to the plaintiff’s entitlement to No-Fault benefits for transportation services provided to Rafael Fuentes (hereinafter “the patient”) who was allegedly injured in a motor vehicle accident on May 6, 2001. Plaintiff claims that it provided necessary transportation services to the patient at a total cost of $1,650, of which $700 was paid, leaving a balance of $950.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. Rebecchi v. Whitmore, 172 AD2d 600 (2d Dept 1991).
In order to establish a prima facie case of entitlement to No-Fault benefits, the plaintiff must submit proof of claim and amount of loss, together with a valid assignment. See Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2d Dept 2004); Damadian MRI In Garden City, P.C. v. Windsor Group Ins., 2 Misc 3d 138(A)(App Term, 2d & 11th Jud Dists 2004); Interboro General Hosp. v. Allcity Ins. Co., 149 AD2d 569, appeal dismissed 74 NY2d 792 (1989). In support of its claim, plaintiff submits several invoices addressed to defendant. Those invoices purport to establish that plaintiff provided the patient with transportation services sixty-six times between May 8, 2001 and October 18, 2001, at a rate of $25 per trip. Plaintiff was reimbursed by defendant in the amount of $700, leaving a balance of $950 owing. Plaintiff also submits the affidavit of Leonid Zayets, an employee and/or officer of plaintiff, wherein he states that plaintiff submitted the invoices to defendant together with proper No-Fault verification forms. However, plaintiff fails to attach said forms.
The alleged accident occurred on May 6, 2001. Therefore, this case falls under the No-Fault provisions of 11 NYCRR § 65.15 in effect on that date. Under the applicable regulations, a patient is entitled to up to $25 per day for “other reasonable and necessary expenses incurred as a result of the accident,” including necessary transportation expenses. 11 NYCCR § 65.8(g)(1)(3). Although the current No-Fault regulations allow the assignment of the right to collect payment for health services only, under the older, applicable regulations, a patient may assign the right to collect payment from an insurer to either an attending physician or “other provider of service…” 11 NYCRR 65.15(j)(1). See also, 11 NYCRR 65-3.11(a).
Plaintiff submits a purported assignment which provides as follows:
In consideration of services rendered or to be rendered to the above, named patient, I hereby authorize payment directly to the Transportation provider services of any and all first party no-fault automobile insurance benefits, to which I may be entitled, for services rendered by the provider, but not to exceed the provider’s regular charges for such services.
I further understand that if said sum is not collected I will remain personally liable. [*3]
This language operates only to authorize defendant to make payment directly to plaintiff and in no way assigns to plaintiff the right to sue to collect such payment in the place of the patient. Therefore, it is not a valid assignment, but merely an authorization for direct payment. See also, Rehab Medical Care of New York, P.C. v. Travelers Ins. Co., 188 Misc 2d 176 (App Term, 2d & 11th Jud Dists 2001) (wherein a statement containing the language “I hereby assign to the provider of services and/or his/her assignees so much of my first party No-Fault automobile insurance benefits and rights…” [emphasis added] was held to be an assignment of the right to sue as well as the right to be paid.)
Although the Court need not consider defendant’s remaining arguments in opposition to the motion, the Court notes that defendant argues that plaintiff has failed to prove medical necessity of the transportation services claimed. However, defendant fails to establish that such a defense was raised in a timely denial of the plaintiff’s claims. Absent such a denial, defendant has waived such a defense. See Amaze Medical Supply Inc. v. Eagle Ins. Co., 2 Misc 3d 139(A) (App Term, 2d & 11th Jud Dists 2004); A.B. Medical Services Pllc v. CNA Ins. Co., 1 Misc 3d 137(A) (App Term 1st Dept 2004).
Accordingly, plaintiff has failed to establish a prima facie case of entitlement to judgment as a matter of law. Consequently summary judgment is denied.
The foregoing shall constitute the Decision and Order of the Court.
Dated: July 22, 2004
DONALD SCOTT KURTZ
Judge, Civil Court
Reported in New York Official Reports at Amaze Med. Supply Inc. v Allstate Ins. Co. (2004 NY Slip Op 50833(U))
| Amaze Med. Supply Inc. v Allstate Ins. Co. |
| 2004 NY Slip Op 50833(U) |
| Decided on July 21, 2004 |
| 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. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., PATTERSON and GOLIA, JJ.
NO. 2003-1008 K C
against
ALLSTATE INSURANCE COMPANY, Respondent.
Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, as denied its motion for partial summary judgment.
Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for partial summary judgment granted in the principal sum of $2,365 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.
Plaintiff sues to recover first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff established a prima facie case by the submission of a properly
completed claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Although defendant timely denied the claim for $765 within 30 days of its receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]), the peer review report upon which the denial of benefits was predicated was not in admissible form and was therefore insufficient to defeat [*2]plaintiff’s summary judgment motion. An affirmation of a chiropractor does not constitute competent evidence (see CPLR 2106; see also Cubero v DiMarco, 272 AD2d 430 [2000]).
With respect to plaintiff’s claims for $670 and $930, defendant failed to deny them within 30 days of their receipt. Thus, defendant is precluded from raising the defense of medical necessity as to those claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).
Accordingly, inasmuch as defendant failed to raise a triable issue of fact, plaintiff’s motion should have been granted, and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,365 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: July 21, 2004
Reported in New York Official Reports at S & M Supply Inc. v Dollar Rent A Car Sys. Inc. (2004 NY Slip Op 24284)
| S & M Supply Inc. v Dollar Rent A Car Sys. Inc. |
| 2004 NY Slip Op 24284 [5 Misc 3d 36] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 24, 2004 |
[*1]
| S & M Supply Inc., as Assignee of Umar Credle, Appellant, v Dollar Rent A Car Systems Inc., Respondent. |
Supreme Court, Appellate Term, Second Department, July 21, 2004
APPEARANCES OF COUNSEL
Amos Weinberg, Great Neck, for appellant. McDonough Marcus Cohn Tretter Heller & Kanca LLP, New Rochelle (Brian J. Divney of counsel), for respondent.
Memorandum.
Order unanimously affirmed without costs.
Plaintiff commenced the instant action to recover the sum of $2,176.29 in first-party no-fault benefits for medical supplies furnished to its assignor. Upon defendant’s failure to appear or answer, plaintiff moved for an order directing the clerk to enter a default judgment against defendant for the principal sum of $2,176.29, plus preset statutory attorney’s fees of 20% and statutory interest of 2% per month, which motion was unopposed. The motion was denied with leave to renew, the court finding that plaintiff failed to establish prima facie that defendant was liable to plaintiff’s assignor for first-party no-fault benefits.
CPLR 3215 (f) provides that upon an application for a default judgment, the applicant must file proof of service of the summons and the complaint, and “proof by affidavit made by the party of the facts constituting the claim, the default and the amount due.”
Generally, a plaintiff establishes a prima facie case of entitlement to no-fault benefits on a [*2]motion for summary judgment by proof of submission of a proper proof of claim (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Proper proof of claim consists of either the completed statutory forms (11 NYCRR 65.15 [c] [3]) or their functional equivalent (11 NYCRR 65.15 [d] [5] [“insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form”]) which must establish “proof of the fact and amount of [the] loss sustained” (Insurance Law § 5106 [a]).
Plaintiff contends that its submission of the statutory forms established “proof of the fact and the amount of [the] loss sustained” {**5 Misc 3d at 38}and that the affidavit of its medical billing officer established a proper billing. Moreover, inasmuch as the damages sought were statutorily fixed, they were for a “sum certain or for a sum which can by computation be made certain” (CPLR 3215 [a]), and the court below therefore erred in denying its motion.
In our opinion, the submission to the court of the instant proofs of claim coupled with the affidavit of plaintiff’s billing manager did not constitute sufficient proof of the “facts constituting the claim, the default and the amount due” (CPLR 3215 [f]), inasmuch as plaintiff’s billing manager averred in the affidavit that the billing for the medical equipment had been set according to the Workers’ Compensation Law Fee Schedules. While fees for physicians’ services are governed by such schedules, fees for medical equipment and supplies are set by insurance regulation, specifically 11 NYCRR Appendix 17-C, part E (b) (1), which states that “[f]or medical equipment and supplies . . . provided by a physician or medical . . . supplier, the maximum permissible charge is 150 percent of the documented cost of the equipment to the provider.” Since the averment of plaintiff’s billing manager is to the effect that billing (for the medical equipment) was set according to the Workers’ Compensation Law Fee Schedules, this statement was meaningless, and its inclusion in the affidavit raised an issue as to plaintiff’s entitlement to the particular amount allegedly due. Thus the damages sought could no longer be deemed to be for a “sum certain or for a sum which can by computation be made certain” (CPLR 3215 [a]). Accordingly, upon the instant motion papers, the court’s denial of plaintiff’s motion was proper. Plaintiff may renew its motion for a default judgment upon a showing of compliance with CPLR 3215.
To the extent that at oral argument defense counsel submitted a portion of the transcript of the examination under oath of plaintiff’s assignor, which indicated the possibility of a fraudulent claim by plaintiff, such evidence is dehors the record and, accordingly, we do not reach that issue (see Chimarios v Duhl, 152 AD2d 508 [1989]). We note, however, that defendant may, in an appropriate manner, raise the matter in the court below.
Pesce, P.J., Patterson and Golia, JJ., concur.State Farm Mut. v Katehis (2004 NY Slip Op 50854(U))
Reported in New York Official Reports at State Farm Mut. v Katehis (2004 NY Slip Op 50854(U))
[*1]| State Farm Mut. v Katehis |
| 2004 NY Slip Op 50854(U) |
| Decided on July 16, 2004 |
| Supreme Court, Bronx County |
| 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. |
STATE FARM MUTUAL, Plaintiff
against KRISTOS KATEHIS, Defendant |
0015302/04
Nelson S. Román, J.
Respondent Kristos Katehis filed a demand for arbitration to resolve an uninsured motorist claim with State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company. Respondent claims he was injured as a result of an automobile accident which occurred on October 2, 2000 at East 116th Street between Lexington Avenue and Third Avenue, wherein the alleged offending vehicle left the scene. Petitioners now seek a permanent stay to the arbitration, asserting that respondent made untimely notice of his uninsured motorist claim. In the alternative, petitioners ask for a temporary stay to conduct further discover in aid of arbitration. Respondent maintains that he was duly diligent in trying to ascertain the offending vehicle’s insurance, and therefore made timely notification of his uninsured motorist claim. However, for the following reasons, the petitioner’s permanent stay is granted.
Civil Practice Law and Rules §7503(c) states that “[a]n application to stay arbitration must be made by the party served within 20 days after service upon him of the notice or demand.” In conjunction operates General Construction Law §25(a): “When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday, or public holiday, such act may be done on the next succeeding business day . . .”
Respondent affirms that the Demand for Arbitration was served on State Farm Mutual Auto Insurance, by certified mail, on April 5, 2004. Affirmation in Opp’n. ¶3. Although C.P.L.R. §7503(c) would have allowed April 25, 2004 as the final day to petition to stay arbitration, April 25, 2004 was a Sunday. Thus, according to Gen. Constr. Law §25(a), petitioner’s petition to stay arbitration, served on Monday April 26, 2004, is timely.
In order for an uninsured motorist claim to successfully proceed to arbitration, the claim must be filed with one’s insurance carrier “as soon as practicable.” Pet. to Stay Arbitration, Ex. B (quoting State Farm UM and SUM coverage policy); see, Matter of Kauffman, 25 A.D.2d 419, 419 (1st Dept 1966); see also, Matter of State Farm Mutual Automobile v. Fuccio, 288 A.D.2d 46, 47 (1st Dept 2001); accord, Matter Travelers Insurance Company v. DeLosh, 249 A.D.2d 924, 924 (4th Dept 1998). Providing such notice is the “condition precedent” to receiving uninsured motorist benefits for two reasons. Application of Merchants Mutual Insurance Company v. Anziano, 59 Misc.2d 673, 676 (1969) (citing Matter of Kauffman, 25 A.D.2d 419, [*2]419 (1st Dept 1966)). The notice requirement serves “to permit the insurer to investigate and prepare while claims are fresh and memories have not faded, and to permit the insurer to obtain an early physical examination.” Id. Finally, the “as soon as practicable” time period begins to toll on the date of the accident. Matter of State Farm Mutual Insurance Company v. Pizzonia, 147 A.D.2d 703, 704 (2nd Dept 1989).
Yet at the same time, “[i]t is well settled that the phrase ‘as soon as practicable’ is an elastic one, not to be defined in a vacuum” which calls “for a determination of what was within a reasonable time in light of the facts and circumstances of the case at hand.” Mighty Midgets, Inc. v. Centennial Insurance Company, 47 N.Y.2d 12 (1979); e.g., Matter of Metropolitan Property and Casualty Insurance Company v. Mancuso, 93 N.Y.2d 487, 494 (1999). Thus the term requires a case by case analysis rather than an “ironbound” yardstick. See, Mighty Midgets, Inc. v. Centennial Insurance Company, 47 N.Y.2d at 19. Hence a reasonable excuse can justify an untimely delay in filing an uninsured motorist claim. See, Witriol v. Travelers Insurance Group, 251 A.D.2d 497, 498 (2nd Dept 1998); see also, New York Central Mutual Fire Insurance Company v. Szymaszek, 305 A.D.2d 988, 989 (4th Dept 2003).
The burden of providing such a reasonable excuse is upon the insured. Delosh, 249 A.D.2d at 925, Travelers Indemnity Company v. Worthy, 281 A.D.2d 411, 412 (2nd Dept 2001). Likewise, the reasonableness of the excuse is determined on a case-by-case basis, and so is a question of fact. Witriol, 251 A.D.2d at 498. In order for the insured to prevail with their excuse for delayed notice, the facts must show that the insured exercised due diligence in “(1) ascertaining the insurance status of the other operator, and (2) giving notice once his lack of insurance is discovered.” Anziano, 59 Misc.2d at 676; accord, Pizzonia, 147 A.D.2d at 704.
Lastly, if the insurance company is to deny coverage of a potential uninsured motorist claim, such a denial must be made within a reasonable time of being notified of the claim. Pizzonia, 147 A.D.2d at 704. “Reasonableness is the standard by which the insurer’s action is judged and reasonableness is a question of fact determined upon the circumstances of the case which require the insurer to take more or less time to make, complete and act diligently on the investigation of its coverage.” Aetna Casualty and Surety Company v. Brice, 72 A.D.2d 927, 927 (2nd Dept 1979).
Here State Farm Mutual Automobile Insurance Company’s and State Farm Fire and Casualty Company’s policy states in pertinent part that a claim for uninsured motorist shall be made in writing “as soon as practicable.” Pet. To Stay Arbitration, Ex. B, page 3. However, respondent did not provide notice to State Farm insurance company until approximately thirty months after the accident for which he seeks recovery occurred. The accident occurred on October 2, 2000 and respondent’s first evidence of contacting petitioner insurance company is on May 20, 2003. Without an excuse, such a delay “demonstrates a lack of diligence.” Fuccio, 288 A.D.2d at 46 (granted insurer’s petition to stay arbitration when respondent had no excuse in delay of more than 19 months before contacting insurance company); e.g., Szymaszek, 305 A.D.2d at 988 (granted insurer’s permanent stay of arbitration when respondent waited three years to notify insurer of SUM claim).
Here, respondent offers some evidence of his attempts to identify the offending vehicle, of identifying the insurance coverage of the offending vehicle, and of giving notice once the lack of insurance was realized. Respondent asserts that in the first two years after the accident, he [*3]retained two different lawyers successively. Both lawyers were unable to locate the police report of the accident or the license plate number of the offending vehicle, despite retaining the help of private investigators. In actuality, this is because a police report was not filed for the accident until two years after its occurrence. But, “[t]he results of those inquiries should have alerted him to the fact that he had a potential uninsured motorist claim.” Matter of Nova Casualty Company v. Helmstadt, 204 A.D.2d 330, 330 (2nd Dept 1994); see, generally, Security Mutual Insurance Company of New York v. Acker-Fitzsimons Corporation, 31 N.Y.2d 436 (1976) (noting that the need to alert one’s insurance company of a potential claim is the responsibility of the insured when it can reasonably be deduced from the circumstances that a claim may soon arise). Especially since respondent retained counsel during this entire period of time, it was both possible and reasonable for respondent to have notified petitioner of a potential claim. See, Matter of Shehata v. Government Employees Insurance Company, 66 A.D.2d 821, 821 (2nd Dept 1978) (citing Matter of Acevedo v. Motor Vehicle Accident Indemnification Corporation, 56 A.D.2d 817, 817) (seven month delay in giving notice to insurance company considered untimely as a matter of law)); see, also, Matter of Becton v. Motor Vehicle Accident Indemnification Corporation, 35 A.D.2d 660, 660 (1st Dept 1970) (nine month delay in notifying MVAIC of intention to make claim considered untimely as matter of law); accord, Matter of Nassau Insurance Company v. Doyle, 114 A.D.2d 899, 899-900 (2nd Dept 1985). Thus, although there is some evidence to suggest respondent exercised some diligence in trying to ascertain the identity of the offending vehicle, there is no sensible reason as to why he failed to notify petitioner during the first two year period when there was already some evidence that he was dealing with a potential uninsured motorist.
Thus, respondent’s failure to notify petitioner of a potential uninsured motorist claim after two years only because of a lack of a police report with the offending vehicle’s license number represents a lack of diligence and “forecloses a finding that notice had been filed as soon as practicable.” State Farm Mutual Automobile Insurance Company v. Romero, 109 A.D.2d 786, 788 (2nd Dept 1985); see, generally, Matter of Country-Wide Insurance Company v. Aubry, 233 A.D.2d 189, 189 (1st Dept 1996). The point of notifying the insurance company of a potential claims is to allow the insurance company to conduct investigations into the accident, such as interviewing witnesses with fresh memories, and take medical examinations as soon as possible after the accident. See Anziano, 59 Misc.2d at 676 (citing Matter of Kauffman, 25 A.D.2d 419, 419 (1st Dept 1966); see, also, Power Authority v. Westinghouse Electric Corporation, 117 A.D.2d 336, 339 (1st Dept 1986). Consequently, “[a]bsent a valid excuse, failure to satisfy an insurance policy notice requirement vitiates coverage.” Matter of Allcity Insurance Company v. Jimenez, 78 N.Y.2d 1054, 1055 (1991).
Lastly, petitioner’s denial of coverage of respondent’s claim is deemed timely. Insurance Law §3420(d) provides that:
If under a liability policy delivered or issued for delivery in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.
[*4]
Thirty months after the accident, respondent’s third attorney notified petitioner of a potential uninsured motorist claim after finally learning the offending vehicle’s license number and its lack of insurance. One month later, after receipt of respondent’s demand for arbitration, petitioner denied coverage of this claim. Petitioner affirms this month was necessary to investigate and locate, within their records, respondent’s policy which was in effect approximately three years earlier. Respondent notified State Farm Mutual Automobile Insurance Company of the claim while respondent actually held a policy with petitioner State Farm Fire and Casualty Company. As such, petitioner’s denial of coverage was made “as soon as reasonably possible.” Matter of Country-Wide Insurance Company v. Aubry, 233 A.D.2d 189 (1st Dept 1996); Jimenez, 576 N.Y.S.2d at 88 (“The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for . . . denial of coverage.”)
Based on the foregoing, the court determines respondent lacks a reasonable excuse for his failure to notify petitioner of his uninsured motorist claim “as soon as practicable” and petitioner’s denial of coverage is deemed timely and in compliance with the procedures of C.P.L.R. §7503(c). As a result, petitioner’s application to permanently stay arbitration is granted.
Petitioner is directed to serve a copy of this decision and order, with notice of entry, upon respondent via certified mail within 21 days hereof.
This constitutes the court’s decision and order.
Dated July 16, 2004____________________________
Bronx, NY Hon. Nelson S. Román, S.C.J.Hospital for Joint Diseases v Hertz Corp. (2004 NY Slip Op 06024)
Reported in New York Official Reports at Hospital for Joint Diseases v Hertz Corp. (2004 NY Slip Op 06024)
| Hospital for Joint Diseases v Hertz Corp. |
| 2004 NY Slip Op 06024 [9 AD3d 391] |
| July 12, 2004 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Hospital for Joint Diseases, as Assignee of Miguel Salgado, et al., Appellants-Respondents, v Hertz Corporation et al., Respondents-Appellants. |
—[*1]In an action to recover no-fault medical payments under certain insurance contracts, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated March 12, 2003, as denied the motion of the plaintiff Hospital for Joint Diseases, as assignee of Miguel Salgado, for summary judgment, and the defendants cross-appeal from so much of the same order as denied that branch of their cross motion which was for summary judgment dismissing the complaint.
Ordered that the appeal by the plaintiff St. Vincent’s Hospital & Medical Center, as assignee of Cathryn Einhorn is dismissed, as that plaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the plaintiff Hospital for Joint Diseases, as assignee of Miguel Salgado, on the law, and the motion is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff Hospital for Joint [*2]Diseases, as assignee of Miguel Salgado, payable by the defendants.
The plaintiff Hospital for Joint Diseases, as assignee of Miguel Salgado (hereinafter HJD) established its prima facie entitlement to summary judgment to recover no-fault medical payments. The defendants failed to submit any evidentiary proof to support their claim that the subject injury and treatment were not causally related to the subject motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]). Thus, the defendants failed to establish their prima facie entitlement to summary judgment dismissing the complaint and also failed to raise a triable issue of fact to defeat the motion of HJD for summary judgment. Accordingly, the denial of that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint was proper. However, the Supreme Court should have granted the motion of HJD for summary judgment.
The defendants’ remaining arguments are raised for the first time on appeal and thus are not properly before this Court (see Mann v All Waste Sys., 293 AD2d 656 [2002]; Goldblatt v LaShellda Maintenance Co., 278 AD2d 451 [2000]). Krausman, J.P., Adams, Cozier and Rivera, JJ., concur.Hospital for Joint Diseases v Hertz Corp. (2004 NY Slip Op 06025)
Reported in New York Official Reports at Hospital for Joint Diseases v Hertz Corp. (2004 NY Slip Op 06025)
| Hospital for Joint Diseases v Hertz Corp. |
| 2004 NY Slip Op 06025 [9 AD3d 392] |
| July 12, 2004 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Hospital for Joint Diseases, as Assignee of Miguel Salgado, Appellant, v Hertz Corporation et al., Respondents. |
—[*1]In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated July 7, 2003, which denied its motion for summary judgment.
Ordered that the order is reversed, on the law, with costs, and the motion is granted.
The plaintiff established its prima facie entitlement to summary judgment on its complaint to recover no-fault medical payments. Although the defendants maintained in opposition to the motion that they timely denied the claim, they failed to provide any evidentiary support for that assertion (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Further, the defendants failed to submit any evidentiary proof to support their claim that the subject injury and treatment were not causally related to the subject motor vehicle accident (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]). Thus, the defendants failed to raise a triable issue of fact to defeat the motion.
In light of our determination, the parties’ remaining contentions have been rendered academic. Krausman, J.P., Adams, Cozier and Rivera, JJ., concur.Rose v Hartford Ins. Co. (2004 NY Slip Op 06034)
Reported in New York Official Reports at Rose v Hartford Ins. Co. (2004 NY Slip Op 06034)
| Rose v Hartford Ins. Co. |
| 2004 NY Slip Op 06034 [9 AD3d 402] |
| July 12, 2004 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Angela Rose et al., Respondents, v Hartford Insurance Company, Appellant, Motor Vehicle Accident Indemnification Corporation, Respondent, et al., Defendants. |
—[*1]In an action, inter alia, for a judgment declaring that the defendant Hartford Insurance Company is obliged to defend and indemnify the defendants Nandanine W. Seedo and Ramesh R. Toulsiram in a personal injury action entitled Rose v Barresi, pending in the Supreme Court, Queens County, under Index No. 02-017592, the defendant Hartford Insurance Company appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Queens County (Satterfield, J.), dated November 3, 2003, which, inter alia, sua sponte, directed that the period during which the plaintiff Lucy Chedda could submit a claim to the defendant Hartford Insurance Company for uninsured motorist benefits was to run from the date of service of that order, with notice of entry.
Ordered that on the Court’s own motion, so much of the notice of appeal as purports to appeal as of right from that portion of the order which, sua sponte, directed that the period in which the plaintiff Lucy Chedda could submit a claim to the defendant Hartford Insurance Company for uninsured motorist benefits was to run from the date of service of that order with notice of entry, is treated as an application for leave to appeal from that portion of the order and leave to appeal is granted (see CPLR 5701 [c]); and it is further, [*2]
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Under the circumstances of this case, the Supreme Court properly directed that the period during which the plaintiff Lucy Chedda could submit a claim to the appellant for uninsured motorist benefits was to run from the date of service of the court’s November 3, 2003, order with notice of entry (see Matter of Allstate Ins. Co. v Giordano, 108 AD2d 910 [1985]).
The appellant’s remaining contentions are without merit. Altman, J.P., H. Miller, Townes and Fisher, JJ., concur.Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj (2004 NY Slip Op 05880)
Reported in New York Official Reports at Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj (2004 NY Slip Op 05880)
| Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj |
| 2004 NY Slip Op 05880 [9 AD3d 833] |
| July 9, 2004 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of New York Central Mutual Fire Insurance Company, Appellant, v George Czumaj, Respondent. |
—[*1]
Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered April 1, 2003. The order denied the petition for an order permanently staying arbitration.
It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs and the petition is granted.
Memorandum: Respondent submitted claims for no-fault insurance benefits for injuries he sustained in a motor vehicle accident in September 1995. Petitioner denied respondent’s claim for lost wages on May 6, 1996 and denied the balance of respondent’s claim on September 3, 1996. Respondent served a demand for arbitration dated August 29, 2002 via Federal Express overnight mail with signature required. Petitioner thereupon commenced this proceeding seeking a permanent stay of arbitration.
We conclude that Supreme Court erred in denying the petition. We agree with petitioner that service of the demand for arbitration by Federal Express mail is jurisdictionally defective because Federal Express mail is not one of the permitted methods of service set forth in CPLR 7503 (c) (see Matter of Spychalski [Continental Ins. Cos.], 58 AD2d 193, 196 [1977], affd 45 NY2d 847 [1978]; Matter of Yak Taxi v Teke, 41 NY2d 1020 [1977]; Matter of Nationwide Ins. Enter. [Denga], 302 AD2d 929 [2003]; Matter of Cartier v County of Nassau, 281 AD2d 477 [2001]; Matter of Metropolitan Cas. & Prop. Ins. Co. v Suggs, 268 AD2d 240 [2000]; cf. CPLR 3216; Balancio v American Optical Corp., 66 NY2d 750, 751 [1985]). We therefore reverse the order and grant the petition.
All concur except Green and Scudder, JJ., who dissent and vote to modify in accordance with the following memorandum.
Green and Scudder, JJ. (dissenting). We respectfully dissent. We disagree with the majority that the demand for arbitration by Federal Express mail is jurisdictionally defective because it is not one of the permitted methods of service set forth in CPLR 7503 (c), i.e., “in the same manner as a summons or by registered or certified mail, return receipt requested.” In our view, the procedure used herein is analogous to personal service by mail as provided for in CPLR 312-a. Furthermore, such service is the functional equivalent of registered or certified mail, return receipt requested, inasmuch as both methods provide for accountability and reliability with [*2]respect to the mailing and receipt of the demand for arbitration (see generally Secreto v International Bus. Machs. Corp., 194 Misc 2d 512, 513-514 [2003]). We therefore conclude that the demand for arbitration was properly served (see Matter of Andy Floors [Tyler Constr. Corp.], 202 AD2d 938, 939 [1994]).
Having concluded that the service is not jurisdictionally defective, we further conclude that respondent’s demand for arbitration is not time-barred with respect to the denial of respondent’s claim in September 1996. Contrary to petitioner’s contention, the demand was properly served within the applicable six-year statute of limitations (see CPLR 213 [2]; 7502 [b]; see generally Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 193 [1982], rearg denied 56 NY2d 567 [1982], cert denied 459 US 837 [1982]). The remaining issue therefore is whether respondent’s demand for arbitration is time-barred with respect to the denial of respondent’s claim in May 1996. Respondent contends with respect thereto that, by filing the instant demand, he “re-filed” a demand for arbitration that was originally filed with the New York State Insurance Department and served on petitioner on October 1, 1997. He contends that his original demand was treated by the American Arbitration Association as “withdrawn without prejudice” because of settlement. Also pending at that time was a demand for arbitration made by a medical provider to which respondent had assigned his rights. Although the record establishes that arbitration hearings were scheduled and then adjourned by the American Arbitration Association, the record does not establish whether the hearings were to be conducted with respect to respondent’s claim, the medical provider’s claim, or both.
In denying the petition, Supreme Court determined that respondent filed a demand for arbitration in 1997 and that, because petitioner participated in a prior arbitration proceeding, it is barred from now seeking a stay of arbitration (see CPLR 7503 [b]). The court’s determination that respondent filed a demand for arbitration in 1997 is unsupported by the record, which contains only a copy of a cover letter from respondent’s attorney to the New York State Insurance Department and does not contain the demand for arbitration or the other enclosures discussed in the cover letter. Petitioner contends that it received only the cover letter. Petitioner further contends that it was never served with respondent’s demand for arbitration and thus that it participated only in arbitration proceedings with respect to the medical provider.
As respondent correctly concedes, arbitration with respect to the denial of his claim in May 1996 is time-barred if it is determined that there was no prior arbitration proceeding between these parties. If, however, it is determined that there was a prior arbitration proceeding between these parties, then petitioner’s “participation in the arbitration [proceeding] constituted a waiver of any right on [petitioner’s] part to . . . obtain a stay of arbitration on statute of limitations grounds” (Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Erie County White Collar Unit Local #815 [County of Erie], 303 AD2d 1050, 1051; see CPLR 7503 [b]). We cannot determine from this record, however, whether there was any such prior arbitration proceeding and therefore conclude that the issue whether that claim is barred by the statute of limitations is a threshold question requiring a trial forthwith (see CPLR 7503 [a]). Thus, we would modify the order accordingly, and we would grant a trial with respect to that issue. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Gorski, JJ.
Reported in New York Official Reports at Matter of Taylor v Continental Ins. Co. (2004 NY Slip Op 05832)
| Matter of Taylor v Continental Ins. Co. |
| 2004 NY Slip Op 05832 [9 AD3d 657] |
| July 8, 2004 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Georgia Taylor, Respondent, v Continental Insurance Company, Also Known as CNA Insurance Company, Appellant. |
—[*1]
Mugglin, J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered April 21, 2003 in Ulster County, which granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.
After sustaining injuries in a May 1990 work-related automobile accident, petitioner applied for and was awarded workers’ compensation benefits. In November 1992, respondent, who had commenced payment of workers’ compensation benefits shortly after petitioner’s accident, notified petitioner that it was reserving its claim to a continuing lien on any recovery for injuries or damages arising out of the May 1990 accident not constituting payments in lieu of first party no-fault benefits (see Workers’ Compensation Law § 29 [1-a]; Insurance Law § 5104 [a]). Respondent further informed petitioner of its obligation to obtain respondent’s written consent for any settlement or compromise of a lawsuit brought in connection with the automobile accident (see Workers’ Compensation Law § 29 [5]). Petitioner had, in fact, commenced a third-party action and ultimately settled the matter for $60,000 pursuant to the terms of a July 1993 agreement. It is undisputed that no attempt was made by petitioner to obtain respondent’s consent prior to executing that agreement. Citing petitioner’s failure in that regard, respondent suspended the payment of benefits in January 1994 and, thereafter, refused petitioner’s July 1994 [*2]request for retroactive consent of the settlement agreement. After affording petitioner the opportunity to provide evidence that consent was obtained, the Workers’ Compensation Board approved the termination of further benefit awards and closed the case in May 1995. In November 2002, some nine years after the execution of the July 1993 settlement agreement, petitioner sought judicial approval of the settlement nunc pro tunc. Supreme Court granted petitioner’s application, prompting this appeal by respondent.
Workers Compensation Law § 29 (5) is clear “[that] an employee must obtain the written approval of the employer or its workers’ compensation carrier prior to any settlement of a third-party action” (Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 728 [2001]; see Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19 [1994]). However, an employee also has the option of seeking judicial approval of the settlement from the court in which the third-party action is pending within three months after the case has been settled (see Matter of Stiffen v CNA Ins. Cos., 282 AD2d 991, 992 [2001], lv denied 97 NY2d 612 [2002]). Where, as here, a petitioner has failed to do either, such petitioner is barred from receiving future workers’ compensation benefits unless he or she can demonstrate that (1) the delay in submitting the application was not the result of the petitioner’s fault or neglect, (2) the settlement is reasonable and (3) the carrier was not prejudiced by the delay (see id. at 992; Matter of Wilbur v Utica Mut. Co., 228 AD2d 928, 929 [1996]). A reviewing court should also consider the length of the delay as an additional relevant factor (see Matter of Rifenburgh v James, 297 AD2d 901, 902 [2002]; Dennison v Pinke, 211 AD2d 853, 854 [1995]).
Here, the nine-year delay between the execution of the settlement agreement and petitioner’s application for judicial approval thereof was inordinate. There is no dispute that, as early as November 1992, petitioner was fully aware of respondent’s intention to assert its right to impose a workers’ compensation lien and require written consent of any third-party settlement agreement. Respondent’s intention to avail itself of this statutory remedy was further emphasized by the 1994-1995 proceedings before the Workers’ Compensation Board and in respondent’s January 1995 correspondence denying petitioner’s request for retroactive consent. Unfortunately, even in light of these circumstances, petitioner did not seek judicial approval of the settlement agreement until 2002.
Even assuming that the settlement was reasonable and respondent’s claim of prejudice not significant, in light of the above uncontroverted facts, we find unpersuasive petitioner’s attempts to characterize the delay as excusable. Under the circumstances, we must conclude that Supreme Court’s grant of petitioner’s application constituted an improvident exercise of discretion and reversal is required (see Scannell v Karlin, 252 AD2d 552 [1998], lv denied 93 NY2d 805 [1999]).
Cardona, P.J., Crew III, Peters and Rose, JJ., concur. Ordered that the order is reversed, on the law, without costs, and application denied.
Reported in New York Official Reports at A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50779(U))
[*1]| A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. |
| 2004 NY Slip Op 50779(U) |
| Decided on July 8, 2004 |
| 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. |
PRESENT:PESCE, P.J., PATTERSON and GOLIA, JJ.
NO. 2003-1068 K C
against
TRAVELERS PROPERTY CASUALTY CORPORATION, Respondent.
Appeal by plaintiffs from an order of the Civil Court, Kings County (D. Silber, J.), entered April 22, 2003, denying their motion for summary judgment.
Order unanimously affirmed without costs.
Plaintiffs commenced this action to recover first-party no-fault benefits, as well as statutory interest and attorney’s fees, for medical services rendered to their assignors for injuries they sustained in an automobile accident, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for summary judgment, which motion the court below denied, by order entered April 22, 2003, “without prejudice to renewal upon completion of discovery.”
In support of their motion, plaintiffs submitted an affidavit in which one Bella Safir stated that she was the “practice and billing manager” of “plaintiff,” even though there were two distinct plaintiffs in this matter, A.B. Medical Services PLLC and D.A.V. Chiropractic P.C. The affidavit did not indicate for which “plaintiff” Safir was the billing manager and this court cannot assume that she was acting on behalf of one particular plaintiff or on behalf of both plaintiffs. Consequently, the affidavit is insufficient to establish that plaintiffs provided defendant with properly completed forms(see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Apr. 13, 2004 [App Term, 9th & 10th Jud Dists]). Accordingly, plaintiffs failed to make a prima [*2]facie showing of entitlement to judgment as a matter of law (cf. Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]).
In view of the foregoing, we find that their motion was properly denied, albeit on grounds other than those relied upon by the court below.
Decision Date: July 08, 2004