Decided on April 12, 2017

Decided on April 11, 2017

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 15, 2014. The order, insofar as appealed from, denied plaintiff’s motion to enter a default judgment and granted the branch of defendant’s cross motion seeking to compel plaintiff to accept an untimely answer.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to accept an untimely answer 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, defendant failed to timely answer. Plaintiff subsequently moved for leave to enter a default judgment, pursuant to CPLR 3215, and defendant cross-moved to, among other things, compel plaintiff to accept an untimely answer previously served, which answer included the affirmative defense of lack of personal jurisdiction. Plaintiff appeals from so much of an order of the Civil Court as denied its motion and granted the aforestated branch of defendant’s cross motion.

The branch of defendant’s cross motion seeking to compel plaintiff to accept the untimely answer should have been denied. “A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when opposing a motion for leave to enter judgment upon its failure to appear or answer and moving to extend the time to answer or to compel the acceptance of an untimely answer” (Lipp v Port Auth. of NY & N.J., 34 AD3d 649, 649 [2006]; see also Deutsche Bank Natl. Trust Co. v Kuldip, 136 AD3d 969 [2016]; Kennedy v City of New York, 114 AD3d 831, 832 [2014]; Juseinoski v Board of Educ. of City of NY, 15 AD3d 353 [2005]). Here, defendant essentially concedes that it did neither, and so that branch of its cross motion should have been denied.

However, plaintiff’s motion for leave to enter a default judgment was properly denied. Plaintiff’s affidavit of service demonstrates that service was made in Hauppage, which is in Suffolk County, outside the City of New York. Section 403 of the New York City Civil Court Act provides that service “shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.” Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant’s position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff’s complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment. Consequently, its motion was properly denied (see CPLR 3215; TCIF REO GCM, LLC v Walker, 139 AD3d 704 [2016]; Dupps v Betancourt, 99 AD3d 855 [2012]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking to compel plaintiff to accept the untimely answer is denied.

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

Decided on April 7, 2017

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

Decided on April 7, 2017

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

The Odierno Law Firm, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 27, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,549.41.

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

On July 23, 2010, plaintiff commenced this action to recover assigned first-party no-fault benefits. By order entered January 16, 2015, the Civil Court (Larry Love, J.) held that the only issue for trial as to disputed claims in the sum of $1,549.41 was whether the services which had been rendered by plaintiff were medically necessary. Plaintiff filed a notice of trial on February 25, 2015, and the matter appeared on the trial calendar on April 6, 2015. On April 6, 2015, defense counsel made an oral application to adjourn the trial, stating that “[s]ix weeks is not a reasonable amount of time . . . for our offices to book a witness for all these trials.” The Civil Court denied the application. As defendant was unable to proceed to trial in the absence of its expert witnesses, the court ordered that judgment be entered in plaintiff’s favor. A judgment in favor of plaintiff in the principal sum of $1,549.41 was entered on July 27, 2015.

Defendant’s sole contention on appeal is that the Civil Court improvidently exercised its [*2]discretion in denying defendant’s application to adjourn the trial to enable it to secure the attendance of expert witnesses.

“An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion” (Nieves v Tomonska, 306 AD2d 332, 332 [2003]; see Matter of Winfield v Gammons, 105 AD3d 753, 754 [2013]; Diamond v Diamante, 57 AD3d 826, 827 [2008]; Noble Thread Corp. v Noble Group Corp., 46 AD3d 778, 779 [2007]).

Here, although expert witness testimony was critical, defense counsel made no showing that due diligence had been exercised in attempting to secure the attendance of its witnesses during the six-week period between the filing of the notice of trial and the action’s appearance on the trial calendar. In view of the foregoing, and the fact that this case had been commenced almost five years before it was reached for trial, we find that it was not an improvident exercise of discretion for the trial court to have denied defendant’s request for an adjournment.

Accordingly, the judgment is affirmed.

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

ENTER:

Paul Kenny

Decision Date: April 07, 2017

Bruno, Gerbino & Soriano, LLP, Mitchell L. Kaufman, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 2015. 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.

Contrary to plaintiff’s contention, defendant sufficiently established that the relevant policy is a Massachusetts insurance policy, which had been issued to a Massachusetts resident for an automobile whose principal place of garaging was Worcester, Massachusetts. The NF-2 form, which was signed by plaintiff’s assignor, the insured, and proffered by defendant as an exhibit to the motion (see Flatbush Chiropractic, P.C. v GEICO Ins. Co., 40 Misc 3d 128[A], 2013 NY Slip Op 51104[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), reveals that the accident occurred in Massachusetts. In view of Massachusetts’ significant contacts with the insurance contract (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), the [*2]application of Massachusetts law to the substantive issues is proper (see Matter of Allstate Ins. Co. [Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]).

Contrary to plaintiff’s contention, defendant’s evidence, including, among other things, a statement by plaintiff’s assignor, established, prima facie, that the policy limits at issue here had been exhausted in accordance with Massachusetts law (see Mass Gen Laws Ann ch. 90 §§ 34A, 34M; Dominguez v Liberty Mut. Ins. Co., 429 Mass 112, 112-113 [1999]), before defendant became obligated to pay plaintiff’s claims at issue. In opposition, plaintiff failed to raise a triable issue of fact.

Plaintiff’s remaining contentions lack merit.

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

ENTER:

Paul Kenny

Decision Date: April 07, 2017

Law Office of Gabriel & Shapiro, LLC, Steven F. Palumbo, Esq., for appellant. Rubin, Fiorella & Friedman, LLP, Dean G. Aronin, Esq., for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated May 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature.

ORDERED that 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 the action was premature. Plaintiff appeals from an order of the District Court which granted defendant’s motion.

It is undisputed that defendant timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its verification request and follow-up verification request to plaintiff and that plaintiff failed to provide the information requested. Rather, in response to defendant’s verification requests, plaintiff informed defendant, by letter, that plaintiff was an ambulatory facility and, as such, did “not possess all the medical records,” advising defendant to “request any additional information directly from the treating provider.” Plaintiff’s response did not refer to any specific request or state that plaintiff was not in [*2]possession of any of the items requested by defendant. Thus, plaintiff did not demonstrate that it had sufficiently responded to defendant’s verification requests (see D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Mount Sinai Hosp. v Auto One Ins. Co., 121 AD3d 869 [2014]).

As defendant demonstrated that it had not received the verification requested, and plaintiff did not show that it had provided defendant with all of the requested verification items which were in plaintiff’s possession, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.8 [a] [1]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U]; cf. Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). Consequently, the District Court properly granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature.

Accordingly, the order is affirmed.

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

Paul Kenny

Decided on March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1953 Q C

Law Office of Emilia I. Rutigliano, P.C., Marina Josovich, Esq., for appellant. Gullo & Associates, LLC, Natalie Socorro, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered June 16, 2015. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that defendant established that it had timely denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Contrary to plaintiff’s sole argument on appeal, defendant did not raise an issue of fact as to whether the first scheduled IME had been mutually rescheduled, let alone establish a mutual rescheduling as a matter of law (see generally Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Accordingly, the order is affirmed.

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

ENTER:

Paul Kenny

Decision Date: March 31, 2017

Decided on March 31, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
2015-1189 K C

Gallo Vitucci Klar, LLP, Yolanda L. Ayala, Esq., for appellant. Sierra K. Page, Esq., P.C., Zara Javakov, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 19, 2015. 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 on the ground that there were triable issues of fact regarding the insured’s alleged material misrepresentations in the procurement of the insurance policy.

In support of its cross motion, defendant submitted the affidavit of its senior claims examiner which failed to establish that defendant had timely denied plaintiff’s claims (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Gutierrez v United Servs. Auto. Assn., 47 Misc 3d 152[A], 2015 NY Slip Op 50797[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, defendant failed to demonstrate that it was not precluded from asserting the insured’s alleged misrepresentations in connection with the issuance of the [*2]policy. Consequently, defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint.

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

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

ENTER:
Paul Kenny
Chief Clerk

Decision Date: March 31, 2017