Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

Reported in New York Official Reports at Yumi Acupuncture, P.C. v Allstate Ins. Co. (2021 NY Slip Op 50432(U))

Valuecare Pharm. Inc v MVAIC (2021 NY Slip Op 50429(U))

Reported in New York Official Reports at Valuecare Pharm. Inc v MVAIC (2021 NY Slip Op 50429(U))

[*1]

Valuecare Pharm. Inc v MVAIC

2021 NY Slip Op 50429(U) [71 Misc 3d 136(A)]

Decided on May 14, 2021

Appellate Term, First Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 14, 2021
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Higgitt, J.P., Brigantti, Hagler, JJ.
570140/20

Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Myrna Socorro, J.), entered on or about July 3, 2019, which granted, in part, plaintiff’s motion to compel discovery.

Per Curiam.

Order (Myrna Socorro, J.), entered on or about July 3, 2019, affirmed, with $10 costs.

Where a party fails to timely object to discovery demands within the 20-day period prescribed by CPLR article 31 (see CPLR 3122[a]; 3133[a]), appellate review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper (see Khatskevich v Victor, 184 AD3d 504 [2020]; Jefferson v State of New York, 60 AD3d 1215 [2009]). Here, defendant did not timely object to plaintiff’s discovery demands, including the interrogatories and notice for discovery and inspection, and, in fact, ignored them until plaintiff moved to compel compliance several months later. Since defendant did not argue below that the discovery requested was privileged or that the requests were palpably improper, we have no cause to disturb Civil Court’s grant of plaintiff’s motion to compel (see Precision Chiropractic, PC v MVAIC, 67 Misc 3d 126[A], 2020 NY Slip Op 50359[U] [App Term, 1st Dept 2020]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 14, 2021JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))

Reported in New York Official Reports at JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))

[*1]

JFL Med. Care, P.C. v ELRAC, Inc.

2021 NY Slip Op 50434(U) [71 Misc 3d 136(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-319 K C

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Scahill Law Group, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered January 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 independent medical examinations (IMEs) and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues on appeal that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that the letters scheduling the IMEs were properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs were properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; see also Metro Pain Specialist, P.C. v ELRAC, Inc., 69 Misc 3d 140[A], 2020 NY Slip Op 51341[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Delta Diagnostic Radiology, P.C. v Maya Assur. Co., 47 Misc 3d 151[A], [*2]2015 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had 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 Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))

Reported in New York Official Reports at Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))

[*1]

Greenway Med. Supply Corp. v Dollar Rent A Car

2021 NY Slip Op 50439(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-387 K C

Rubin, Fiorella, Friedman & Mercante, LLP (Deena Khalifa of counsel), for appellant. The Rybak Firm, PLLC (Richard Rozhik of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered February 8, 2019. 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 reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment.

In support of its motion, defendant submitted an affidavit from its third-party claims examiner which was sufficient to establish, prima facie, defendant’s lack of coverage defense (see New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent the claims examiner’s affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309 (c) and Real Property Law § 299-a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d [*2]134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the present case, plaintiff failed to make any showing of prejudice. In opposition to defendant’s prima facie showing, plaintiff failed to demonstrate the existence of a triable issue of fact.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

Reported in New York Official Reports at Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))

[*1]

Longevity Med. Supply, Inc. v MVAIC

2021 NY Slip Op 50440(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-451 K C

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin 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 February 5, 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 denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action; 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 granting a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action, the affidavit of defendant’s claims representative established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms denying the claims set forth within those causes of action on the ground that they had been submitted more than 45 days after those services had been rendered (see 11 NYCRR 65-2.4 [c]). The denial of claim forms further advised plaintiff that late notice would be excused if reasonable justification for plaintiff’s failure to give timely notice was provided (see id.). As defendant established its prima facie entitlement to judgment as a matter of law upon those causes of action (see TAM Med. Supply Corp. v [*2]Fiduciary Ins. Co. of Am., 53 Misc 3d 129[A], 2016 NY Slip Op 51352[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the burden shifted to plaintiff to demonstrate a triable issue of fact. The affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that those claim forms had been timely mailed to defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff timely submitted the claims which are the subject of the second through fifth causes of action.

With respect to the first cause of action, contrary to plaintiff’s sole argument to defeat that branch of defendant’s motion, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50149[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As to the sixth cause of action, plaintiff’s contention that the affidavit it submitted was sufficient to raise a triable issue of fact lacks merit.

Accordingly, the order is modified by denying the branch of defendant’s motion seeking summary judgment dismissing the second through fifth causes of action.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))

Reported in New York Official Reports at Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))

[*1]

Excel Prods., Inc. v Farmington Cas. Co.

2021 NY Slip Op 50441(U) [71 Misc 3d 137(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-498 K C

Law Offices of Tina Newsome-Lee (Erika E.E. Treco 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 (Michael Gerstein, J.), dated December 10, 2018. 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 demonstrate that it was entitled to summary judgment dismissing the complaint based on plaintiff’s failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities 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]). Defendant’s remaining contentions regarding its motion for summary judgment are improperly raised for the first time on appeal and we decline to consider [*2]them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), 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., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U))

Reported in New York Official Reports at First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U))

[*1]

First Am. Alliance, Inc. v MVAIC

2021 NY Slip Op 50447(U) [71 Misc 3d 138(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-836 K C

Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. Marshall & Marshall, PLLC (Frank D’Esposito of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered March 25, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint 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 granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to MVAIC’s contention, the 30-day period within which MVAIC may timely deny a claim or request verification begins to run upon receipt of the claim without regard to whether MVAIC has determined that plaintiff’s assignor is a covered person within the meaning of Insurance Law § 5221 (b) (2) (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). As a result, MVAIC’s motion seeking summary judgment dismissing the complaint should have been denied as MVAIC failed to establish that it is not precluded from interposing its defense of lack of medical necessity (see Active Care Med. Supply Corp. v MVAIC, 66 Misc 3d 128[A], 2019 NY Slip Op 52045[U]).

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Active Care Med. Supply Corp. v MVAIC (2021 NY Slip Op 50450(U))

Reported in New York Official Reports at Active Care Med. Supply Corp. v MVAIC (2021 NY Slip Op 50450(U))

[*1]

Active Care Med. Supply Corp. v MVAIC

2021 NY Slip Op 50450(U) [71 Misc 3d 138(A)]

Decided on May 14, 2021

Appellate Term, Second Department

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

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

Decided on May 14, 2021

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1306 K C

Marshall & Marshall, PLLC (Frank D’Esposito 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 (Sandra E. Roper, J.), entered April 25, 2019. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a hearing, in accordance with this decision and order, to determine the ground upon which defendant’s motion should be granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the grounds that the action was premature because, on February 10, 2012, defendant first requested verification and, despite sending a follow-up request for verification, plaintiff had failed to provide the requested verification. In the alternative, defendant asserted that it was entitled to summary judgment on the ground that the statute of limitations had expired because MVAIC did not receive plaintiff’s claim form until February 7, 2012 and plaintiff commenced the instant action on December 15, 2015. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court entered April 25, 2019 as denied defendant’s motion.

MVAIC demonstrated that it had received plaintiff’s claim form on February 7, 2012, that it mailed an initial request for verification on February 10, 2012, and a follow-up request for verification on March 16, 2012 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had not received the requested verification. Thus, MVAIC demonstrated, prima facie, that the action is premature (see Central Suffolk Hosp. v New [*2]York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). In support of its cross motion and in opposition to MVAIC’s motion, the affidavit submitted by plaintiff’s owner was sufficient to demonstrate, prima facie, that the claim form had been mailed to defendant on October 28, 2010, giving rise to a presumption that it had been received by MVAIC more than a year before the date on which MVAIC claims to have received it (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). If MVAIC first received plaintiff’s claim form on February 7, 2012, it would be entitled to summary judgment dismissing the complaint as premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]), which dismissal would be without prejudice. However, if the claim form was mailed by plaintiff in October 2010 and received by MVAIC more than 30 days prior to the mailing of the first verification request, the branch of MVAIC’s motion which asserts that the statute of limitations had expired before plaintiff commenced this action upon such claim form should be granted because, while MVAIC’s verifications requests would have been untimely, plaintiff’s cause of action against MVAIC would have accrued more than three years before plaintiff commenced the instant action. As plaintiff failed to raise an issue of fact as to the action’s timeliness (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), such a dismissal would be with prejudice.

In view of the foregoing, MVAIC has demonstrated that it is entitled to summary judgment dismissing the complaint. However, the record does not establish, as a matter of law, whether the dismissal should be with prejudice or without prejudice. As a result, we are of the opinion that, under the particular circumstances presented, a hearing is necessary pursuant to CPLR 2218, on the limited issue of when plaintiff mailed and MVAIC received the claim form (see Charles Deng Acupuncture, P.C. v MVAIC, 66 Misc 3d 129[A], 2019 NY Slip Op 52049[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Med-Tech Prods., Inc. v Statewide Ins. Co., 35 Misc 3d 128[A], 2012 NY Slip Op 50584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.11 [b] [4]), as the findings made after such a hearing will prove dispositive.

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the Civil Court for a framed issue hearing (see CPLR 2218) to determine when MVAIC received the claim form which is the subject of this action and thus, the ground upon which defendant’s motion seeking summary judgment dismissing the complaint shall be granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012)

Reported in New York Official Reports at Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012)

Masigla v MVAIC (2020 NY Slip Op 51612(U))

Reported in New York Official Reports at Masigla v MVAIC (2020 NY Slip Op 51612(U))

[*1]

Masigla v MVAIC

2020 NY Slip Op 51612(U) [71 Misc 3d 1217(A)]

Decided on May 3, 2021

Civil Court Of The City Of New York, Kings County

Epstein, J.

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

As corrected in part through May 10, 2021; it will not be published in the printed Official Reports.

Decided on May 3, 2021

Maria S. Masigla, P.T. a/a/o Jean Baptiste, against MVAIC, Defendant.

CV-026628-15



Plaintiff:
Florence Zabokritsky of Counsel to
The Rybak Firm PLLC
1810 Voorhies Avenue
3rd Floor Suite 7
Brooklyn, NY 11235
(718) 975-2035

Defendant:
Lawrence Rogak of Counsel to
Law Office of Jamie E. Gangemi
100 William Street, 14th Floor
New York, NY 10038
(646) 205-7880
Jill R. Epstein, J.

Plaintiff, medical provider, Maria S. Masigla (hereinafter “Plaintiff”), as assignee of Jean Baptiste (hereinafter “Assignor”), commenced these actions to recover assigned first-party no fault benefits from MVAIC (hereinafter “Defendant”), for a medical services performed on the assignor following a motor vehicle accident, which occurred June 4, 2012. The three actions were filed separately under Kings County Index Numbers 026628-15, 026655-15 and 043846-15, respectively. The Court joined the three actions for trial on March 11, 2021, without objection.

Both parties entered into a stipulation on December 19, 2017, wherein it was agreed that the sole issue for trial was assignor’s eligibility for coverage and any other defenses raised in [*2]defendant’s answer. In the stipulations signed by both parties prior to trial, it was agreed that plaintiff established its prima facie burden in the instant actions. Based on the foregoing, the Court finds that plaintiff has established its prima facie burden in all three cases.

At trial, on March 11, 2021, the parties agreed that an accident occurred, and that the claimant testified, at an Examination Under Oath (hereafter “EUO”) that the car he was driving at the time had been sold to a friend previously. It was also agreed that the vehicle in this accident was uninsured on the date and time of the accident. The parties also stipulated that at the time of the accident, the claimant had borrowed the car back from the friend to whom it had been sold. The sole issue of fact before the Court’s was whether the assignor had been in possession of the vehicle for sufficient time to make him the de facto owner. Plaintiff objected to the use of the EUO testimony as evidence in this matter, stating that the provider was never sent a copy of the EUO and that the provider was not on notice that an EUO would be held. Thus, plaintiff argued the EUO transcript was inadmissible. Plaintiff did not present the assignor as a witness in this action and plaintiff objected to there being no witnesses to testify to the ultimate fact to be determined.

For a person to be considered a “qualified person” by MVAIC, Insurance Law § 5202(b)(1) states:

a resident of this state, other than an insured or the owner of an uninsured motor vehicle and his spouse when a passenger in such vehicle, or his legal representative, or (ii) a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded, to residents of this state, of substantially similar character to that provided for by this article, or his legal representative.

Insurance Law § 5202(b)(1)

Insurance Law § 5201, provides that:

The legislature finds and declares that the motor vehicle financial security act in the vehicle and traffic law, which requires the owner of a motor vehicle to furnish proof of financial security as a condition to registration, fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by:

(1) uninsured motor vehicles registered in a state other than New York,

(2) unidentified motor vehicles which leave the scene of the accident,

(3) motor vehicles registered in this state as to which at the time of the accident there was not in effect a policy of liability insurance

Insurance Law § 5201

For a person to be found to be a “qualified person” eligible for benefits from MVAIC, admissible proof must be presented by plaintiff to establish they were qualified. Once that burden is met, MVAIC must present, admissible evidence that assignor was not a “qualified person.”

Defendant argues that the EUO, held on December 5, 2012, dispositively proved that the assignor was in possession of the subject vehicle for more than 30 days and therefore, as the de [*3]facto owner was an unqualified person, ineligible to received MVAIC benefits. The sole evidence offered at trial on this issue are the EUO transcript of the assignor held and a letter to the assignor, which purportedly accompanied the EUO transcript.

Hearsay is defined as statements made outside of Court sought to be introduced for the truth of the matter asserted. People v. Nieves, 67 NY2d 125, 492 [1986]. Hearsay is admissible only if it falls into an exception to the hearsay rules. Id. Plaintiff argues that the EUO transcript is inadmissible on the basis that it does not fall into any of the hearsay exceptions. Plaintiff argues that pursuant to CPLR § 3117 (a)(2):

the deposition testimony of a party or of any person who was a party when the testimony was given or of any person who at the time the testimony was given was an officer, director, member, employee or managing or authorized agent of a party, may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence

CPLR § 3117 (a)(2)

Plaintiff relies upon Mia Acupuncture, P.C .v. Mercury Ins., which held that “[b]y virtue of their assignment of no-fault benefits to their providers, eligible injured persons have divested themselves of their interest in those benefits, and they are not parties to actions commenced by their assignees.” Mia Acupuncture, P.C. v. Mercury Ins. Co., 26 Misc 3d 39, 40 [App. Term, 2d Dept, 2009]. Plaintiff also argues that pursuant to, CPLR § 3117(a)(3)(iv), an EUO transcript may be entered into evidence in the event, “that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts.” Plaintiff argues that defendant had failed to make any showing that “diligent efforts” have been made to procure the witness whose EUO transcript they seek to rely upon.

Defendant urges the Court to find that the EUO transcript falls into a hearsay exception as a party admission against interest. Defendant inaptly relies upon Zalot v Zieba, which is a case involving a summary judgment motion in which Second Department ruled that a deposition was in fact admissible. Zalot v Zieba, 81 AD3d 935, 917 [App. Term,.2d Dept, 2011]. However, Zalot, was based on a summary judgement motion, in which facts contained in the motion papers are deemed as true if not disputed by admissible evidence. In the mater sub judice, there is an objection by plaintiff to purported hearsay. Absent admissible evidence, defendant cannot support its contentions. Defendant also relies upon a First Department case, American States Ins. Co. v Huff, 119 AD3d 478 [1st Dept 2014], stating that the Court should apply the First Department’s holding in Huff to the instant matter permitting the EUO transcript to be entered into evidence. However, the facts in Huff differ substantially from those before this Court. The Huff Court explicitly states that the defendant does not contest what happened during the EUO. Id. In this case, plaintiff has objected to the admissibility of the EUO and they were neither present nor notified of the EUO. Moreover, the EUO in Huff was used to demonstrate that the assignor left in the middle of the EUO, which is readily distinguishable from an effort to use the assignor’s EUO testimony solely to prove the ultimate fact to be determined at trial. Huff is inapplicable.

The Court finds that defendant failed to establish that the assignor’s EUO transcript should be treated as an exception to the hearsay rule as a statement against interest. In a similar matter, JSI Expert Serv. v. Liberty Mut. Ins. Co., 7 Misc 3d 1000 (A) [NY Civ. Ct. March 23, 2005], the defendant attempted to use an EUO transcript as evidence at trial claiming, that the [*4]EUO transcript was a hearsay exception because it was an admission against interest. In JSI Expert Serv., the Court found that the “New York doctrine,” which states “In New York declarations of a vendor or assignor of a chattel or chose in action, whether made before or after the transfer, are inadmissible to affect the claim or title of a subsequent transferee for value” was applicable and therefore, the hearsay exception for admission against interest was inapplicable. Id. quoting Richardson on Evidence, Farrell 11th ed., §§ 8-239 and 8-241.

Similarly, in this matter plaintiff argues that the “New York Doctrine” is applicable and therefore, the EUO is not admissible. This is the same argument adopted by the Court in JSI Expert Serv. In 2006, this issue was again visited and it was held that, “the declarations of an assignor, whether made before or after the assignment, are inadmissible as against the assignee.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006]. The Court finds the Court’s decisions in JSI Expert Serv. and CPT Med. Serv, to be persuasive, and that the “New York doctrine” in applicable in this instance therefore, the EUO testimony is hearsay and not admissible.

Defendant has failed to show the assignor was an unavailable witness as required to admit a deposition testimony, per CPLR § 3117(a)(3)(iv). The decision in CPT Med. Serv., PC, directly addresses this issue when the Court held, “while it is well established that the statements made by an assignor (though a nonparty) in an EUO may be offered by a defendant insurer against a provider/assignee to prove a lack of coverage defense in opposition to a summary judgment motion despite being hearsay, EUO statements are nonetheless hearsay. As such, such statements are inadmissible at trial unless, for example, they are used for impeachment purposes upon cross-examination in the event such declarant/assignor testifies.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 [NY Civ. Ct. March 9, 2006] [internal citations omitted]. It is important to note that CPT Med. Serv. does provide for the defendant to raise viable defenses so long as they cannot be established by, or proven without, inadmissible hearsay. Id. In this case, defendant was provided with the opportunity to provide the court with admissible evidence or witnesses at trial to establish that the assignor was unqualified for MVAIC benefits and instead relied on inadmissible hearsay evidence as the sole basis for their defense in this matter.

Thus, the Court finds that plaintiff has established its prima facie burden. Plaintiff has additionally established that assignor was uninsured and eligible for MVAIC coverage at the time of the accident, insofar as the parties stipulated that the assignor was uninsured at the time of the accident. Defendant has failed to prove by admissible evidence that plaintiff’s assignor was an unqualified person, due to having been in possession of the uninsured vehicle for more than thirty days. Plaintiff is entitled to MVAIC benefits in all three of the matters consolidated for trial.

WHEREFORE it is hereby

ORDERED AND ADJUDGED that judgement be entered in favor of plaintiff in the sum of $4,186.71 for index 43846-15, $4,178.10 for index 26655-15, and $2,029.50 for index 26628-15 plus costs, disbursements, interest, and attorneys fees for all three index numbers referenced.

Dated: Brooklyn, New York
May 3, 2021
____________________________________
HON. JILL R. EPSTEIN, JCC