Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co. (2007 NY Slip Op 50372(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered October 28, 2005, deemed an appeal from the judgment entered March 26, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered November 10, 2005 which granted plaintiff’s unopposed cross motion for summary judgment, awarded plaintiff the principal sum of $12,125.52.

Appeal dismissed.

Since defendant failed to submit written opposition to plaintiff’s cross motion seeking summary judgment, that branch of the order which granted plaintiff’s cross motion for summary judgment was entered on default and defendant is not aggrieved thereby (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from the judgment, which was entered pursuant to said order, is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia,J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur with my colleagues in their ultimate determination that a default in responding to a motion must result in a denial of appellate review.

I, nevertheless, wish to address a misconception of the law in the decision and order of [*2]the lower court which granted summary judgment in favor of the plaintiff upon the default of the defendant in not responding to plaintiff’s motion.

The lower court initially held that plaintiff proved its prima facie case by means of establishing the timely receipt of the claims by submission of the defendant’s NF-10 denial forms.

That court then addressed the sufficiency of the NF-10 denial form and found that the “NF-10 is not specific and requires one to consider other documents not
included.” Inasmuch as the NF-10 denial specifically stated that the fees charged were
in “excess of the no-fault schedule,” it would seem to indicate that the “other documents” to which the lower court refers, is the no-fault fee schedule which allegedly was not attached to the defendant’s NF-10.

The question then presented is whether or not the failure to attach a copy of the no-fault fee schedule permits a court to grant a money judgment allegedly in excess of the amount permitted by Insurance Department no-fault regulations. I believe that it does not. In support, I look to CPLR 4511 (a) which requires that “[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state . . .” (see also People v Wiley, 59 Misc 2d 519 [1969]; People v Stuck, 54 Misc 2d 811 [1967]). These of course, include the regulations of the New York State Insurance Department.

Clearly, the lower court had no alternative but to take judicial notice of the Insurance Department regulations. Those regulations require that medical procedures are to be billed at the “workers’ compensation” rate (see Insurance Law § 5108 [a]). In addition, that section prohibits any providers of professional health services from demanding or even requesting any payment in excess of the charges provided by that section. This is not to say that the lower court did not have the power to require additional proof or to conduct a hearing, if necessary, in order to establish that the charges were in accordance with the “workers’ compensation” rate. I conclude what that court did not have the authority to do was to simply ignore those regulations and to grant judgment to the plaintiff for an amount which may be in excess of the amount permitted by the regulations.

An interesting and instructive decision concerning the history of the extent of proof required on issues involving judicial notice was written by Judge Pinto of the City Magistrate Court of New York, Rockaway Court, Borough of Queens in People v Lipoff (181 Misc 618 [1943]). In that case, a defendant was charged with selling meats above the ceiling prices set in a regulation by the U.S. Office of Price Administration.

Notwithstanding the prosecutor failing to provide the proper certification, that Judge held in 1943 that “courts must adopt and apply modern and common sense rules” and thereupon took judicial notice of the federal regulation (People v Lipoff, 181 Misc at 622).

In the year 2007, we can conclude that it is still the “modern and common sense rule” for a court to be satisfied that the dollar amount awarded in a judgment is not in excess of the dollar amount enumerated by the regulation which permitted the judgment in the first instance.
Decision Date: February 27, 2007