October 11, 2019

Metro Psychological Servs., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51614(U))

https://www.beynensonlaw.com/case-law/metro-psychological-servs-p-c-v-american-tr-ins-co-2019-ny-slip-op51614u/

Court: Appellate Term, Second Department
Decided: October 11, 2019
Citation: 2019 NY Slip Op 51614(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Staged accidents, lack of coverage Discovery and procedure
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

Metro Psychological Servs., P.C. v American Tr. Ins. Co., 2019 NY Slip Op 51614(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 insurer's affidavit failed to establish that the insured vehicle was not involved in the accident, although its motion was timely. The affidavit stated only that the insured was out of town, did not operate the vehicle that day, and observed no damage upon returning. The Appellate Term, Second Department, left open objections to its notarization and missing caption because it was insufficient even if considered. Under CPLR 3212 (a), CPLR 2211, and CPLR 2103 (b) (2), the motion was timely when mailed to counsel two days before the 120-day deadline; its later return date did not control. The court reversed the order and denied the insurer's summary judgment motion dismissing the complaint.

Reported in New York Official Reports at Metro Psychological Servs., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51614(U))

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

Metro Psychological Services, P.C., as Assignee of Huertas Stephane, Appellant,
against
American Transit Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt and David Steigbigel of counsel), for appellant. Law Office of Daniel J. Tucker (Joshua M. Goldberg of Netanel Ben Chaim of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), dated March 27, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 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 filed a notice of trial on January 14, 2016. By notice of motion returnable on June 19, 2016, which was mailed to plaintiff’s attorney on May 11, 2016, defendant moved for summary judgment dismissing the complaint on the ground that there was no coverage for the accident at issue. Plaintiff opposed the motion. By order dated March 27, 2017, the Civil Court granted the motion.

Contrary to plaintiff’s contention, defendant’s motion for summary judgment dismissing the complaint was not untimely under CPLR 3212 (a). CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). A motion is made when the notice of motion is served (see CPLR 2211; Russo v Eveco Dev. Corp., 256 AD2d 566, 566 [1998]; Chimbay v Palma, 14 Misc [*2]3d 130[A], 2007 NY Slip Op 50019[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]), and when a motion is served upon a party’s attorney by mail, service is complete upon mailing (see CPLR 2103 [b] [2]; Pietrafesa v Canestro, 130 AD3d 602 [2015]). Here, it is uncontroverted that the notice of trial was filed on January 14, 2016 and, thus, the 120-day period expired on May 13, 2016. Since defendant served its motion upon plaintiff’s attorney on May 11, 2016, defendant’s motion was timely.

Plaintiff further contends that what purports to be the insured’s affidavit, which was annexed as an exhibit to defendant’s motion papers, should not have been considered because its notarization was “completely illegible,” and it did not contain a caption. We need not decide this issue since, even if the document were considered, it merely demonstrated that the insured did not operate his vehicle on the day of the accident because he was out of town, and observed no damage to the vehicle upon his return. The affidavit was insufficient to establish, as a matter of law, that the vehicle was not involved in the accident at issue. As a result, defendant’s motion for summary judgment dismissing the complaint should have been denied.

Plaintiff’s remaining arguments lack merit or are unpreserved for appellate review.

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

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019

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.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's motion denied: proof did not establish the defense prima facie; defense still open

Held that the insured's affidavit saying he was out of town and saw no damage did not establish as a matter of law that the insured vehicle was not involved, so the insurer's motion was denied.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 234 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.

Similar decisions

Metro Psychological Servs., P.C. v Allstate Ins. Co. (2019 NY Slip Op 50748(U))The insurer failed to establish timely mailing of its denials, and the provider failed to establish entitlement to payment as a matter of law.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51191(U))The insurer established untimely notice of the accident, and the provider failed to rebut that proof.
Midwood Total Rehab Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 51205(U))The provider's action against the self-insured vehicle owner's claims handler was barred by the three-year statute of limitations.
Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51451(U))An unanswered notice to admit does not establish EUO nonappearance when the requested admissions go to the heart of the controversy.
BSS Med., P.C. v Metropolitan Prop. & Cas. Ins. (2021 NY Slip Op 51255(U))A summary judgment motion served by mail is made upon mailing for purposes of CPLR 3212 (a)'s 120-day deadline.