Decided on April 27, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated Jfune 1, 2015. The order, upon a motion by defendant for summary judgment dismissing the complaint with prejudice on the ground that plaintiff’s assignor failed to appear for examinations under oath, granted defendant’s motion to the extent of dismissing the complaint without prejudice on the ground that the action was premature, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In opposition to defendant’s motion, plaintiff attached copies of letters to defendant stating, among other things, that, since its principal had testified at a previous EUO on January 11, 2013, plaintiff had “complied with its obligations under the no-fault regulations.” Plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature, and denied plaintiff’s cross motion.

At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]). In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.

Upon a review of the record, we find that the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the District Court stated that it was granting defendant’s motion because “defendant’s verification request remained outstanding[,] leaving the defendant insurer under no obligation to pay or deny the claim rendering the plaintiff’s claim for payment premature.” Thus, the District Court’s dismissal of the complaint was implicitly without prejudice. However, an appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), and defendant timely denied the claims at issue on that ground. As a result, upon searching the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that defendant is entitled to summary judgment dismissing the complaint with prejudice.

We further note that there is no merit to plaintiff’s argument that the order of the District Court should be reversed because it was not made in accordance with CPLR 4213 (b), as that statute pertains to decisions after a bench trial. The record shows that the court determined the parties’ motion and cross motion in accordance with CPLR 2219 (a), the applicable statute.

Accordingly, the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted.

Iannacci, J.P., Tolbert and Brands, JJ., concur.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Office of Emilia I. Rutigliano, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 14, 2015. The order denied defendant’s motion to vacate a prior order of the same court entered January 16, 2014 granting, on consent, plaintiff’s motion for summary judgment, and the judgment entered pursuant thereto on February 20, 2014, and, upon such vacatur, for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and, after one adjournment, the Civil Court, by order entered January 16, 2014, granted the motion without opposition from defendant. The order states, “[b]oth sides agreed to the above and will not appeal this order.” A judgment was entered pursuant to that order on February 20, 2014. Subsequently, defendant moved to vacate the judgment and order, arguing that it had a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]), and, upon such vacatur, for summary judgment dismissing the complaint. By order entered May 14, 2015, the Civil Court denied defendant’s motion, finding that defendant had not provided a reasonable excuse for its default.

Since the January 16, 2014 order was entered on consent, defendant bore the burden of establishing grounds sufficient to set aside a stipulation (see Hallock v State of New York, 64 NY2d 224 [1984]; CCU, LLC v Steier, 44 Misc 3d 130[A], 2014 NY Slip Op 51030[U] [App [*2]Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Defendant failed to make such a showing. Accordingly, the order denying defendant’s motion is affirmed, albeit on a different ground.

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

Decided on April 21, 2017

Decided on April 13, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Fourth District (David A. Morris, J.), dated January 30, 2015. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee schedule.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee schedule is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing, among other things, so much of the complaint as sought to recover a specified amount which, defendant claimed, was in excess of the amount permitted by the workers’ compensation fee schedule. In opposition to the motion, plaintiff submitted an affirmation by its counsel and an affidavit of medical necessity. The District Court denied that branch of defendant’s motion, finding that defendant had failed to establish that it had timely denied the claims.

Contrary to the determination of the District Court, defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]) its denial of claim forms. Furthermore, defendant made a prima facie showing that the amount plaintiff sought to recover was in excess of the amount permitted by the applicable workers’ compensation fee schedules. In opposition, plaintiff failed to proffer evidence in admissible form sufficient to raise a triable issue of fact with respect to defendant’s fee schedule defense.

Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover a specified amount in excess of the amount permitted by the workers’ compensation fee [*2]schedule is granted.

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

Gullo & Associates, LLP (Natalie Socorro, Esq.), for appellant. Dash Law Firm, P.C. (Melissa R. Abraham-Lofurno, Esq.), for respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered September 9, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $8,382.42.

ORDERED that, on the court’s own motion, the notice of appeal from a proposed judgment submitted to the District Court on August 18, 2014 is deemed a premature notice of appeal from the judgment entered September 9, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment entered September 9, 2014 is reversed, without costs, and the matter is remitted to the District Court for a new trial.

Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the District Court awarded plaintiff judgment in the principal sum of $8,382.42. On appeal, defendant challenges the District Court’s refusal to grant defendant an adjournment for defendant to call its sole witness, a medical expert, to testify as to the only issue for trial, the medical necessity of the services rendered. On the first trial date at issue, July 14, 2014, a Monday, defendant requested an adjournment, stating that its witness could not testify on Mondays. After plaintiff’s witness testified, the court agreed to continue the trial, but did not announce a date. The trial was subsequently rescheduled to August 18, 2014, another Monday. At that date, defendant again requested an adjournment, stating that its witness could not testify on Mondays without at least eight weeks’ notice. That request was denied, and a judgment was entered in favor of plaintiff.

The testimony of defendant’s expert “was critical to the sole contested liability issue in the case” (Bronx Expert Radiology, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 133[A], 2007 NY Slip Op 50113[U], *1 [App Term, 1st Dept 2007]), and there is no evidence in the record that defendant was merely seeking to delay the trial. Moreover, defendant informed the court of its witness’s inability to appear on Mondays and was also willing to try to have its witness appear on a Monday if required. Thus, in the circumstances presented, we find that the District Court improvidently exercised its discretion in refusing to grant defendant an adjournment or to reschedule the trial for a day other than a Monday or to a Monday more than eight weeks later [*2](see e.g. Byrnes v Varlack, 17 AD3d 616 [2005]; Canty v McLoughlin, 16 AD3d 449 [2005]; Matter of Shepard, 286 AD2d 336 [2001]; Azapinto v Jamaica Hosp., 297 AD2d 301 [2002]; Wai Ming Ng v Tow, 260 AD2d 574 [1999]; Bouima v Dacomi, Inc., 28 Misc 3d 65 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the judgment is reversed and the matter is remitted to the District Court for a new trial.

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

Decided on April 13, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Florence D. Zabokritsky, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 14, 2015. The order denied defendant’s motion to vacate an order of the same court (Robin Kelly Sheares, J.) dated May 20, 2014, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, and thereupon to deny plaintiff’s motion and grant defendant’s cross motion, or for alternative relief.

ORDERED that the order entered April 14, 2015 is reversed, without costs, the branch of defendant’s motion seeking to vacate the order dated May 20, 2014 and thereupon to deny plaintiff’s motion for summary judgment and grant defendant’s cross motion for summary judgment dismissing the complaint is granted, the order dated May 20, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

After issue was joined 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. By order dated May 20, 2014, the Civil Court denied defendant’s cross motion as untimely and granted plaintiff’s motion. On appeal, defendant concedes that it did not timely submit the combined cross motion and opposition to plaintiff’s motion, and, indeed, the record establishes that the papers were late by one business day.

Subsequently, defendant moved to vacate the May 20, 2014 order and, upon such vacatur, to deny plaintiff’s prior motion and grant defendant’s prior cross motion, or for alternative relief. In support of its motion, defendant submitted a general release, executed by plaintiff’s sole officer and shareholder. Defendant’s counsel stated that he had been unaware of the release at the time the prior motions had been decided. The release, dated before plaintiff had made its motion for summary judgment, essentially releases all pending no-fault claims against any insurance provider. It further states: “Presentment of a copy of this Release shall serve to advise any forum [*2]in which a claim for benefits is pending or subsequently filed on behalf of any of the Entities that such claim(s) has been withdrawn with prejudice.” In opposition, plaintiff’s counsel did not challenge the validity, authenticity or applicability of the release. In fact, plaintiff’s counsel did not discuss the release. The Civil Court denied defendant’s motion on the ground that the May 20, 2014 order had been granted on default.

In the circumstances presented, we find that the Civil Court improvidently exercised its discretion in allowing the May 20, 2014 order to stand. Rather, “for sufficient reason and in the interests of substantial justice” (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]), the May 20, 2014 order should be vacated and, upon such vacatur, plaintiff’s motion for summary judgment should be denied and defendant’s cross motion for summary judgment dismissing the complaint should be granted (see Gentle Care Med. Servs., P.C., as assignee of Yvan Acevedo and Nuris Paez v Country Wide Ins. Co., ___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1217 K C], decided herewith).

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

Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for appellant. Law Offices of Florence D. Zabokritsky, P.L.L.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 14, 2015. The order denied defendant’s motion to vacate an order of the same court (Robin Kelly Sheares, J.) dated May 20, 2014, granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, or, in the alternative, for leave to renew defendant’s cross motion and its opposition to plaintiff’s motion.

ORDERED that the order is reversed, without costs, the branch of defendant’s motion seeking leave to renew its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment is granted, and, upon renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

After issue was joined 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. By order dated May 20, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Subsequently, defendant moved to vacate the May 20, 2014 order or, in the alternative, for leave to renew its prior cross motion and its opposition to plaintiff’s prior motion. In support of its motion, defendant submitted a general release, executed by plaintiff’s sole officer and shareholder. Defendant’s counsel stated that he had been unaware of the release at the time the prior motions had been decided. The release, dated before plaintiff had made its motion for summary judgment, essentially releases all pending no-fault claims against any insurance provider. It further states: “Presentment of a copy of this Release shall serve to advise any forum in which a claim for benefits is pending or subsequently filed on behalf of any of the Entities that such claim(s) has been withdrawn with prejudice.” In opposition, plaintiff’s counsel did not challenge the validity, authenticity or applicability of the release. In fact, plaintiff’s counsel did not discuss the release. The Civil Court denied defendant’s motion on the ground that the May 20, 2014 order had been granted on default.

At the outset, we note that there is no indication in the record that plaintiff’s prior motion for summary judgment was granted on default; indeed, the recitation of papers considered includes both opposition and reply papers. Thus, the stated ground for the Civil Court’s denial of defendant’s cross motion lacks a basis in fact.

A motion to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [2], [3]). Here, defendant proffered a release, the authenticity of which plaintiff has not challenged, which released the no-fault claims underlying this action. The release constitutes a complete bar to the instant action (see Warmhold v Zagarino, 144 AD3d 672 [2016]; Powell v Adler, 128 AD3d 1039 [2015]). Moreover, defendant’s counsel alleged that he had been unaware of the release when the prior motions had been decided (cf. Huma v Patel, 68 AD3d 821 [2009]).

Accordingly, the branch of defendant’s motion seeking leave to renew its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment is granted, and, upon renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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