Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-315 Q C

The Rybak Firm, PLLC, (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor, (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 6, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through eighth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 6, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through eighth causes of action on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-307 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William T. Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 8, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth and seventh through ninth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 8, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the second through fifth and seventh through ninth causes of action on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-304 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 6, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 6, 2015 order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-303 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 8, 2015. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 8, 2015 order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.

For the reasons stated in Masigla, as Assignee of Brumaire, Shimaine v Travelers Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-289 Q C], decided herewith), the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-289 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered January 5, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Plaintiff appeals, as limited by its brief, from so much of a January 5, 2015 order of the Civil Court as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through sixth, eighth, and tenth causes of action on the ground that plaintiff had failed to appear for examinations under oath (EUOs).

Contrary to plaintiff’s contention, the affirmations submitted by defendant’s attorneys, who were present in their offices to conduct plaintiff’s EUOs on the scheduled dates, were sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-232 K C

Gary Tsirelman, P.C. (Joseph Padrucco, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Leslie A. Eyma, Jr., Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 27, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim form had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that it had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-228 K C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Stern & Montana, LLP (Richard Montana, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint based upon plaintiff’s failure to appear for duly scheduled examinations under oath.

Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2011-192 K C

Thomas Torto, Esq., for appellant. Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 15, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant’s cross motion was based upon its assertions that it had properly reimbursed plaintiff for some of the services at issue in accordance with the workers’ compensation fee schedule and that it had timely denied reimbursement for the remaining services at issue due to a lack of medical necessity.

Upon a review of the record, we agree with the Civil Court’s determination that, as to the claims that were denied based upon a lack of medical necessity, there is a triable issue of fact regarding medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]). As to the claims that were denied on the ground that they had been properly paid pursuant to the workers’ compensation fee schedule, defendant failed to establish that defense as a matter of law (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 18, 2017

Decided on December 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-231 K C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 2, 2014. The order granted plaintiff’s motion to enter a default judgment and denied defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff’s motion to enter a default judgment and denied defendant’s cross motion to open its default and to compel plaintiff to accept a late answer.

It is well settled that in order to open a default in answering, the defendant must demonstrate both a reasonable excuse for its delay in appearing and answering the complaint as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Here, defendant established a reasonable excuse for its failure to serve an answer (see Vardaros v Zapas, 105 AD3d 1037 [2013]) and made a prima facie showing of a viable defense based on a lack of medical necessity.

Accordingly, the order is reversed, plaintiff’s motion to enter a default judgment is denied, and defendant’s cross motion to open its default in answering and to compel plaintiff to accept a late answer is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.