December 16, 2011

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co. (2011 NY Slip Op 52283(U))

https://www.beynensonlaw.com/case-law/colonia-med-p-c-v-liberty-mut-fire-ins-co-2011-ny-slip-op52283u/

Court: Appellate Term, Second Department
Decided: December 16, 2011
Citation: 2011 NY Slip Op 52283(U) · 34 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Provider's prima facie case Discovery and procedure
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127(A), 2011 NY Slip Op 52283(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed to establish prima facie entitlement to summary judgment despite the insurer's preclusion from offering evidence. A so-ordered stipulation required the insurer to answer interrogatories by a specified deadline or be precluded. Its undisputed failure to respond timely made that conditional preclusion absolute. The Civil Court nevertheless erred in granting the provider summary judgment merely because the insurer could not rebut the claim. The provider's moving papers did not establish entitlement to relief under CPLR 4518 and Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment, and denied the provider's motion for summary judgment; the insurer remained precluded from offering evidence.

Reported in New York Official Reports at Colonia Med., P.C. v Liberty Mut. Fire Ins. Co. (2011 NY Slip Op 52283(U))

[*1]

Colonia Med., P.C. v Liberty Mut. Fire Ins. Co.

2011 NY Slip Op 52283(U) [34 Misc 3d 127(A)]

Decided on December 16, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-2178 K C.

Colonia Medical, P.C. as Assignee of MUHAMMAD CHAUDHRY, Respondent,
against
Liberty Mutual Fire Insurance Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 17, 2010. The judgment, entered pursuant to so much of an order of the same court entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment, awarded plaintiff the principal sum of $7,716.62.

ORDERED that the judgment is reversed, without costs, so much of the order entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, pursuant to a so-ordered stipulation, defendant was required to serve responses to plaintiff’s interrogatories by a specified date or “be precluded from offering evidence in this action.”

It is undisputed that defendant failed to timely serve responses to plaintiff’s interrogatories. Subsequently, plaintiff moved for an order precluding defendant and for summary judgment. By order entered February 23, 2010, the Civil Court granted plaintiff’s motion, on the ground that since defendant was precluded from offering evidence, defendant could not rebut plaintiff’s entitlement to summary judgment. Defendant appeals from the judgment entered pursuant to the February 23, 2010 order.

The so-ordered stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to sufficiently and timely comply (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]). As a result, defendant is precluded from offering evidence in this action. However, plaintiff was not entitled to summary judgment because its moving papers failed to establish a prima facie entitlement to such relief (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 15 Misc 3d 128[A], 2007 NY Slip Op 50602[U] [App Term, 2d & 11th Jud [*2]Dists 2007]).

Accordingly, the judgment is reversed, so much of the order entered February 23, 2010 as granted the branch of plaintiff’s motion seeking summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 16, 2011

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held that although the insurer was precluded from offering evidence, the provider was not entitled to summary judgment because its moving papers failed to establish prima facie entitlement under CPLR 4518 and Insurance Law 5106 (a).

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Dan Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50602(U)) FollowedThe provider's summary judgment showing failed for lack of a business-records foundation, and its discovery appeal concerned a default order.

Cited by

A label shows how the later decision treated this one.

Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 22119) FollowedAn insurer precluded from offering evidence at trial cannot use that evidence to obtain summary judgment.

Similar decisions

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 50352(U))The provider failed to establish its entitlement to summary judgment because its affidavit did not authenticate the claim forms as business records.
Colonia Med., P.C. v Allstate Ins. Co. (2007 NY Slip Op 50679(U))The provider's summary judgment motion failed because its officer did not establish a business-records foundation for the supporting documents.
Colonia Med., P.C. v Travelers Ins. Co. (2006 NY Slip Op 51186(U))The insurer failed to establish timely denials based on IME nonappearance because it did not prove mailing of verification requests.
Midisland Med., PLLC v NY Cent. Mut. Ins. Co. (2010 NY Slip Op 50993(U))A conditional preclusion order becomes absolute when a provider fails to comply sufficiently and timely with its discovery requirements.
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2007 NY Slip Op 50492(U))The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default.