May 8, 2020
Longevity Med. Supply, Inc. v Global Liberty Ins. Co. (2020 NY Slip Op 50527(U))
https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-global-liberty-ins-co-2020-ny-slip-op50527u/
- Decided
- May 8, 2020
- Citation
- 2020 NY Slip Op 50527(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
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.
Reported in New York Official Reports at Longevity Med. Supply, Inc. v Global Liberty Ins. Co. (2020 NY Slip Op 50527(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Global Liberty Insurance Company, Appellant.
Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
ORDERED that so much of the appeal as is from the portion of the order that denied defendant’s motion for summary judgment dismissing the complaint is dismissed as academic in light of this court’s determination of the remainder of the appeal; and it is further,
ORDERED that the order, insofar as reviewed, is reversed, with $30 costs, plaintiff’s cross motion for summary judgment is denied, and summary judgment dismissing the complaint is awarded to defendant pursuant to CPLR 3212 (b), in accordance with the decision herein.
Plaintiff commenced this action to recover assigned first-party no-fault benefits for supplies provided to its assignor, who had purportedly been injured in a motor vehicle accident on March 9, 2015. Thereafter, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled examinations under oath and independent [*2]medical examinations, and plaintiff cross-moved for summary judgment. By order entered March 2, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.
Defendant correctly argues that plaintiff’s cross motion for summary judgment should have been denied, as the proof submitted by plaintiff 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]). Thus, the portion of the order which granted plaintiff’s cross motion for summary judgment must be reversed and plaintiff’s cross motion denied.
Ordinarily, a reversal of this portion of the Civil Court’s order, standing alone, would result in the matter being remitted to the Civil Court for all further proceedings. However, on appeal, defendant argues that the complaint should be dismissed based upon a Supreme Court, Bronx County, declaratory judgment action against plaintiff and plaintiff’s assignor, among others, seeking a declaration that the defendants therein are not entitled to no-fault coverage for the March 9, 2015 accident. For the reasons stated in K.O. Med., P.C. v Mercury Cas. Co. (57 Misc 3d 155[A], 2017 NY Slip Op 51614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), in the interest of judicial economy, we take judicial notice of the judgment in that action which declares that plaintiff and its assignor “are not entitled to no-fault benefits as a result of a motor vehicle accident that occurred on 03/09/15” and that “any and all arbitrations or matters in a court of competent jurisdiction involving any of the Defendants as Assignee of Marie Vil . . . regarding a motor vehicle accident that occurred on 03/09/15, are permanently stayed and dismissed.” Upon taking such judicial notice, we award defendant summary judgment dismissing the complaint pursuant to CPLR 3212 (b) and dismiss as academic so much of the appeal as is from the portion of the Civil Court’s order that denied defendant’s motion for summary judgment (see id.; see also Maiga Prods. Corp. v Hertz Co., 61 Misc 3d 132[A], 2018 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 8, 2020
Legal questions (2)
Questions 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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider's cross motion should have been denied because its proof failed to show the claim was not timely denied or that a timely denial was conclusory, vague or without merit.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.
Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?
This decision: The DJ is given preclusive effect and bars every claim in the action that the court considered
Took judicial notice on appeal of a Supreme Court declaratory judgment declaring the provider and assignor not entitled to benefits for the accident and staying all matters, and dismissed the complaint on that basis.
Of the 163 decisions on this question in the Second Department courts and the Court of Appeals, 100 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- 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.
- K.O. Med., P.C. v Mercury Cas. Co. (2017 NY Slip Op 51614(U)) FollowedA default declaratory judgment denying no-fault coverage barred the provider's action under res judicata.
- Maiga Prods. Corp. v Hertz Co. (2018 NY Slip Op 51448(U))The self-insurer obtained dismissal based on a later declaratory judgment despite failing to establish timely, proper EUO denials below.
Cited by
A label shows how the later decision treated this one.
- Longevity Med. Supply, Inc. v Progressive Ins. Co. (2020 NY Slip Op 20137) FollowedTimely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient.
- Ahava Med. Diagnostic, P.C. v Hertz Co. (2022 NY Slip Op 50298(U)) FollowedA prior no-coverage declaratory judgment retains its binding effect even if notice of entry is served after a provider's default judgment.
- Life Equip., Inc v Mid-Century Ins Co (2022 NY Slip Op 50877(U))The insurer's timely denials defeated the provider's request for judgment despite insufficient proof of the IME no-show defense.
Similar decisions
- Longevity Med. Supply, Inc. v Travelers Prop. & Cas. Ins. Co. (2019 NY Slip Op 51956(U))A Civil Court summary judgment motion is timely when mailed to opposing counsel within 120 days after the notice of trial is filed.
- Longevity Med. Supply, Inc. v Farmington Cas. Co. (2019 NY Slip Op 51626(U))The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal.
- Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U))The rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion.
- Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
- Longevity Med. Supply, Inc. v 21st Century Ins. Co. (2019 NY Slip Op 52041(U))The insurer's uncertified police report failed to establish the out-of-state contacts asserted for forum non conveniens dismissal.