Decided on August 2, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 20, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered September 12, 2011 pursuant to an August 16, 2011 order of that court (Robin S. Garson, J.) granting plaintiff’s unopposed motion for summary judgment; 2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

ORDERED that the order entered January 20, 2017 is reversed, with $30 costs, and defendant’s motion to stay the execution of the judgment entered September 12, 2011, vacate the judgment and, in effect, the August 16, 2011 order, and dismiss the complaint is denied.

Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on June 27, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On September 12, 2011, a judgment was entered pursuant to the order. After the order had been entered, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau [*2]County, against SS Medical and its assignor herein, among other parties, pertaining to the June 27, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century’s motion, pursuant to CPLR 2201 and 6301, to “temporarily stay[]” pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the policy in question, and that the provider had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.

Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered September 12, 2011 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose SS Medical’s motion in the Civil Court for summary judgment, that it had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Richard J. Montelione, J.) entered January 20, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

In support of the branch of its motion in the Civil Court seeking to vacate the judgment, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff’s motion for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant’s attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff’s motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion.

We note that while the Supreme Court’s December 19, 2011 order “temporarily stayed” pending lawsuits, the action in the Civil Court was no longer pending, as a judgment had been entered in the Civil Court on September 12, 2011 awarding SS Medical the principal sum of $2,068.50.

Accordingly, the order entered January 20, 2017 is reversed and defendant’s motion to stay the execution of the judgment entered September 12, 2011, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 16, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered February 2, 2012 pursuant to an August 16, 2011 order of that court granting plaintiff’s unopposed motion for summary judgment; (2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

ORDERED that the order entered February 16, 2017 is reversed, with $30 costs, and defendant’s motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on November 23, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On August 30, 2011, plaintiff submitted to the clerk of the court a proposed judgment pursuant to the order, which judgment included statutory interest and attorney’s fees, and sought its entry. After the order had been entered in the Civil Court, 21st Century commenced a declaratory judgment [*2]action in the Supreme Court, Nassau County, against SS Medical and its assignor herein, among other parties, pertaining to the November 23, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century’s motion, pursuant to CPLR 2201 and 6301, to “temporarily stay[]” pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. On February 2, 2012, without any indication in the record that the Clerk of the Civil Court was aware of the declaratory judgment action or the order issued therein on December 19, 2011, the Civil Court entered a judgment, pursuant to the August 16, 2011 order, awarding SS Medical the principal sum of $1,182.20. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the insurance policy in question, and that the provider and its assignor had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.

Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered February 2, 2012 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose plaintiff’s motion for summary judgment in the Civil Court, that 21st Century had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Robin S. Garson, J.) entered February 16, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

In support of the branch of its motion in the Civil Court seeking to vacate the judgment and, in effect, the August 16, 2011 order, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff’s motion for summary judgment (seeCPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant’s attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff’s motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion.

We note that, by its order entered on August 16, 2011, the Civil Court rendered its determination to grant SS Medical’s motion for summary judgment, thus, completing the court’s judicial function (see Vogel v Edwards, 283 NY 118 [1940]). Thereafter, and prior to the issuance of the Supreme Court’s temporary stay of pending and future lawsuits against 21st Century, plaintiff applied in the Civil Court for the entry of a judgment pursuant to the August 16, 2011 order. As the order had resolved the motion, the entry of the judgment in the Civil Court on February 2, 2012, pursuant the August 16, 2011 order, was simply a ministerial act of [*3]the clerk (see e.g. Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]). The record is devoid of any proceedings taken by either party in the Civil Court action in violation of the stay contained in the Supreme Court’s December 19, 2011 order following its issuance.

Accordingly, the order entered February 16, 2017 is reversed and defendant’s motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

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

Decided on August 2, 2019

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

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2017. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the claim seeking to recover the unpaid portion of the bill which had sought to recover the sum of $267.93 was denied on the ground that the fees exceeded the amount permitted by the workers’ compensation fee schedule and that the remaining claims lacked medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect pursuant to CPLR 3212 (g), that the only remaining issues for trial were the reduction of plaintiff’s claims in accordance with the workers’ compensation fee schedule and medical necessity.

As to the claim seeking to recover the unpaid portion of the $267.93 bill, the affidavit of defendant’s litigation examiner was sufficient to demonstrate prima facie that defendant had properly paid that claim pursuant to the workers’ compensation fee schedule. As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of the $267.93 [*2]claim, the branch of defendant’s motion for summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of this claim should have been granted.

As to the remaining claims, which were denied on the ground of lack of medical necessity, defendant submitted an affirmed peer review report and an affirmed independent medical examination report, each of which set forth a factual basis and medical rationale for the doctors’ determinations that there was a lack of medical necessity for the services at issue. Plaintiff did not rebut defendant’s prima facie showing (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment dismissing the complaint insofar as it sought to recover upon these claims, the branches of defendant’s motion seeking summary judgment dismissing these claims should have been granted.

In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted.

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

Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 28, 2017. 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 the 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 [*2]Dists 2015]).

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.

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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