January 11, 2010

Globe Med. Care O.L.P.C. v Travelers Ins. Co. (2010 NY Slip Op 50020(U))

Headnote

The court considered the fact that the plaintiff, Globe Medical Care O.L.P.C., had filed a complaint to recover first-party no-fault benefits from the defendant, Travelers Insurance Company. The Civil Court initially dismissed the complaint, citing the plaintiff's failure to file proof of service of the summons and complaint. However, the Appellate Term of the Supreme Court, First Department, reversed the judgment and directed a judgment in favor of the plaintiff for the principal sum of $3,072.08. The main issue decided was whether the failure to file proof of service warranted dismissal of the action, and the holding of the court was that it did not. The court also determined that the plaintiff had established a prima facie case to recover the no-fault benefits, and as the defendant failed to present evidence on the medical necessity of the services rendered, judgment was directed in the plaintiff's favor.

Reported in New York Official Reports at Globe Med. Care O.L.P.C. v Travelers Ins. Co. (2010 NY Slip Op 50020(U))

Globe Med. Care O.L.P.C. v Travelers Ins. Co. (2010 NY Slip Op 50020(U)) [*1]

Globe Med. Care O.L.P.C. v Travelers Ins. Co.

2010 NY Slip Op 50020(U) [26 Misc 3d 129(A)]

Decided on January 11, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 11, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
570108/09.

Globe Medical Care O.L.P.C. Assignee of Lior Saiag, Plaintiff-Appellant,
against
Travelers Insurance Company, Defendant-Respondent.

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Julia I. Rodriguez, J.), entered on or about June 20, 2008, reversed, with $30 costs, complaint reinstated, and judgment directed in favor of plaintiff in the principal sum of $3,072.08.

Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411; see also Lumberman’s Mut. Cas. Co. v Temco Serv. Indus., 209 AD2d 296 [1994]).

With respect to the merits of plaintiff’s action, as Civil Court properly recognized, plaintiff established a prima facie case to recover the first-party no-fault benefits it sought in its complaint. Since defendant failed to adduce any evidence on the issue of the medical necessity of the services rendered to plaintiff’s assignor, defendant’s only purported defense at trial, we direct judgment in plaintiff’s favor for the principal amount sought in the complaint.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 2010