Decided on June 23, 2017

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

Decided on June 23, 2017

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

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. The court found that defendant had demonstrated that the limits of the applicable insurance policy had been exhausted.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendment(s) and endorsement(s) are to be interpreted pursuant to the laws of Georgia,” the substantive law of Georgia applies (see St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d 59, 61 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Natural Therapy Acupuncture, [*2]P.C. v . Geico Ins. Co., 50 Misc 3d 107 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Bay Med., P.C. v. GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, New York’s procedural laws control (see St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d at 61).

The affidavit of defendant’s underwriter which was submitted in support of defendant’s cross motion was sufficient to provide a foundation for the consideration of the annexed copies of the insurance policy and declaration page, which indicated that the policy had a $10,000 medical payment limit. However, that affidavit and an affidavit by defendant’s claims division employee failed to establish defendant’s prima facie entitlement to summary judgment dismissing the complaint, since the assertions contained therein failed to provide a foundation for the consideration of the annexed printouts—which purportedly show that the $10,000 policy limit had been exhausted—inasmuch as neither affidavit specifically addressed the printouts. Moreover, it is noted that Section 1 of the insurance policy, entitled “Out of State Insurance,” provides that when “the policy applies to the operation of a motor vehicle outside your state, we agree to increase your coverages to the extent required of out-of-state motorists by local law” (emphasis in the original). It is uncontroverted that the accident took place in South Carolina, and defendant provided no information regarding the minimum financial responsibility required by the State of South Carolina. Consequently, defendant’s cross motion for summary judgment dismissing the complaint should have been denied.

Although the affidavit plaintiff submitted in support of its motion was sufficient to establish that the claim had been timely and properly mailed to defendant, the conclusory statements contained in the affidavit failed to establish that the claim 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 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, June 23, 2017

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt of counsel) for appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel) for respondent.

Ordered that, on the court’s own motion, defendant’s notice of appeal is treated as an application for leave to appeal from so much of the Civil Court’s order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., and leave to appeal from that portion of the order is granted (see CCA 1702 [c]); and it is further ordered that the order, insofar as appealed from, is reversed, with $30 costs, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C. is vacated.

In this action, commenced on April 12, 2013, by three providers to recover assigned first-party no-fault benefits, defendant interposed an answer, which asserted, among other things, that the action is barred by the doctrine of res judicata. Thereafter, defendant moved for partial summary judgment dismissing so much of the complaint as was asserted by plaintiffs Advanced Wellness Chiropractic, P.C. and Maximum Care Physical Therapy, P.C. upon grounds not at issue here. Plaintiffs opposed the motion and cross-moved for summary judgment in favor of all three plaintiffs. In opposition to plaintiffs’ cross motion and in further support of defendant’s motion, defendant’s attorney submitted an affirmation in which he argued that, on the basis of an order in a declaratory judgment action in the Civil Court, New York County, entered October 6, 2014, upon the default of plaintiff Fresh Acupuncture, P.C., Fresh Acupuncture is not entitled to receive no-fault benefits for the accident at issue on the ground of the failure{**56 Misc 3d at 100} by Fresh Acupuncture to appear for scheduled examinations under oath. Fresh Acupuncture appeals from so much of an order of the Civil Court as, upon plaintiffs’ cross motion for summary judgment, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by Fresh Acupuncture.

Insofar as is relevant here, CCA 212-a provides:

“The [Civil Court] shall have the jurisdiction defined in section 3001 of the CPLR to make a declaratory judgment with respect to:

“(a) any controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.”

The Civil Court, New York County, declaratory judgment action was an action by an insurer against a provider and did not involve a “controversy involving the obligation of an insurer to indemnify or defend a defendant in an action in which the amount sought to be recovered does not exceed $25,000.” Thus, the Civil Court, New York County, lacked subject matter jurisdiction to entertain the declaratory judgment action (see CPLR 3001; see generally 133 Plus 24 Sanford Ave. Realty Corp. v Xiu Lan Ni, 47 Misc 3d 55, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent that this court’s decision in Five Boro Psychological Servs., P.C. v AutoOne Ins. Co. (27 Misc 3d 89 [2010]) may have held to the contrary, it should not be followed.

Accordingly, the order, insofar as appealed from, is reversed, and so much of the order as, in effect, sua sponte searched the record and granted defendant partial summary judgment dismissing so much of the complaint as was asserted by plaintiff Fresh Acupuncture, P.C., is vacated.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Law Office of Peter C. Merani, P.C. (Eric M. Wharburg, Esq.), for appellant. Israel, Israel & Purdy, LLP (Ryan B Berry, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking to modify, pursuant to CPLR 5019 (a) and 5240, a judgment of the same court (Lisa S. Ottley, J.) entered March 3, 2014, following a nonjury trial.

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

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court (Lisa S. Ottley, J.) awarded plaintiff a judgment in the principal sum of $2,114.50. The court noted that the parties had stipulated that, among other things, defendant had timely denied the claims at issue. The judgment was entered on March 3, 2014. Eight months later, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the Civil Court entered July 6, 2015 as denied defendant’s motion.

In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see e.g. CPLR 5015 [a]), we find that, in any event, defendant’s motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Furthermore, [*2]as defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment “not affecting a substantial right of a party” (CPLR 5019 [a]; see Herpe v Herpe, 225 NY 323 [1919]; Chmelovsky v Country Club Homes, Inc., 111 AD3d 874 [2013]; Mount Sinai Hosp. v Country Wide Ins. Co., 81 AD3d 700 [2011]), defendant has established no basis to disturb the judgment.

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

Pesce, P.J., Weston and Aliotta, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Fazio, Rynsky & Associates, LLP (Svetlana Sobel, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated February 11, 2016. The order denied defendant’s motion to vacate a default judgment.

ORDERED that the order is affirmed, without costs.

After defendant failed to answer or appear in this action to recover assigned first-party no-fault benefits, plaintiff moved for leave to enter a default judgment. By order dated March 13, 2015, the District Court (C. Stephen Hackeling, J.) granted plaintiff’s motion on default. On March 26, 2015, plaintiff served a judgment with notice of settlement on defendant, and a judgment in the principal sum of $2,898.20 was entered on May 22, 2015. On July 13, 2015, defendant moved to vacate the default judgment. Plaintiff opposed the motion. By order dated February 11, 2016, the District Court (C. Stephen Hackeling, J.) denied defendant’s motion.

A defendant seeking to vacate a default in appearing or answering based on excusable default must demonstrate both a reasonable excuse for the default and the existence of a potentially 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]). Here, defendant proffered an affidavit by its [*2]claims examiner, who merely stated that he was supposed to forward the summons and complaint to defense counsel, but did not, and “it was a mistake.” The claims examiner explained defendant’s default in opposing plaintiff’s motion for leave to enter a default judgment by stating that plaintiff’s motion had not been scanned into defendant’s file system until the date the motion was returnable, and that it was forwarded to defense counsel the following day. Under the circumstances presented, we find that defendant failed to establish a reasonable excuse for its default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]). Consequently, it is unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense to the action (see Diederich v Wetzel, 112 AD3d 883 [2013]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

Marano, P.J., and Iannacci, J., concur.

Garguilo, J., taking no part.

Gabriel & Shapiro, LLC (Jason Moroff, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District

(C. Stephen Hackeling, J.), dated June 18, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that all of plaintiff’s claims had been timely denied on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule. Moreover, the claims for dates of service July 12, 2013 through September 30, 2013 were denied on the additional ground that the services were not medically necessary, based upon an independent medical examination of plaintiff’s assignor by Dr. LoCascio, defendant’s licensed acupuncturist, which had been performed on June 24, 2013.

With respect to the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that the amounts sought were not in accordance with the workers’ compensation fee schedule, we find that defendant did not establish its prima facie entitlement to summary judgment, as it failed to provide an expert’s affidavit to explain its interpretation of the fee schedule at issue (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

With respect to the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims for dates of service July 12, 2013 through September 30, 2013 on the ground that the services were not medically necessary, while defendant, in support of its motion, submitted Dr. LoCascio’s sworn report, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for further treatment, plaintiff, in opposition to the motion, submitted an affirmation by Dr. Vatelman, the licensed acupuncturist who had treated the assignor, which meaningfully referred to and sufficiently rebutted the conclusions set forth in Dr. LoCascio’s report. We note that, contrary to defendant’s argument, the omission of the jurat in Dr. Vatelman’s affirmation is not fatal (People ex rel. 5th Ave. & 37th St. Corp. v Miller, 261 App Div 550, 552 [1941], affd 286 NY 628 [1941]; see also People v Gouiran, 192 AD2d 620 [1993]), particularly in the absence of a showing of substantial prejudice to defendant (see CPLR 2001). We further note that while Dr. Vatelman, as an acupuncturist, was ineligible to submit an affirmation under CPLR 2106 (a), defendant waived any objection on this basis, as it did not raise this issue either in the District Court or on appeal (see Scudera v Mahbubur, 299 AD2d 535 [2002]).

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

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Law Offices of James F. Sullivan, P.C. (Giovanna Tuttolomondo, 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 (Katherine A. Levine, J.), entered May 12, 2015. The order denied defendant’s motion to vacate a default judgment of the same court entered May 27, 2014 upon defendant’s failure to appear or answer the complaint.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits as a result of an accident which had occurred on June 20, 2010. Defendant did not answer the complaint. Thereafter, defendant commenced a declaratory judgment action in the Supreme Court, New York County, which culminated in an order declaring that Allstate Insurance Company was not obligated to provide coverage for claims by plaintiff, among other providers, relating to an accident which had occurred on June 21, 2010. Shortly after defendant served the Supreme Court order on plaintiff and its assignor, among others, plaintiff applied to the Civil Court for leave to enter a default judgment, which the court granted. The default judgment was entered on May 27, 2014.

Defendant moved by order to show cause in the Civil Court to vacate the default judgment, claiming, as an excuse for the default, that it had no record of receiving the summons and complaint, but if defendant had been served, then defendant’s failure to answer the complaint was the result of clerical error and office failure. Defendant asserted, as a potentially meritorious defense, that defendant possessed a founded belief that the collision, which defendant’s claim representative alleged in her affidavit occurred on June 21, 2010, was a staged incident. Plaintiff opposed the motion. Subsequently, defendant presented the Civil Court with the Supreme Court order in the declaratory judgment action. By order entered May 12, 2015, the Civil Court took judicial notice of the Supreme Court order but denied defendant’s motion, finding, among other things, that the Supreme Court order had not been properly served.

In support of its motion to vacate the default judgment, defendant was required to [*2]demonstrate both a reasonable excuse for its default and the existence of a potentially meritorious defense (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]; New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). While plaintiff’s complaint in the Civil Court asserted that the accident at issue had occurred on June 20, 2010, defendant’s proffered evidence of a staged accident referred to a June 21, 2010 collision. Consequently, defendant failed to demonstrate that the alleged injuries did not arise out of the June 20, 2010 insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Similarly, the Supreme Court declared that defendant is not obligated to reimburse plaintiff for claims “relating to the June 21, 2010 accident.” Thus, we cannot find that the order in the declaratory judgment action, which relieves defendant of liability for claims relating to a June 21, 2010 accident, is a conclusive determination barring plaintiff’s recovery in the Civil Court for injuries sustained by its assignor in a June 20, 2010 accident. In the absence of an explanation of the discrepancy in the dates of the accident, defendant failed to demonstrate the existence of a potentially meritorious defense to the action. In view of the foregoing, it is unnecessary to consider whether defendant proffered a reasonable excuse for its default.

Accordingly, the order is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decided on May 12, 2017

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

Decided on May 12, 2017

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