Decided on February 8, 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 (Reginald A. Boddie, J.), entered January 22, 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, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible set forth in the insurance policy in question, it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff opposed the motion, arguing that defendant’s motion was untimely pursuant to CPLR 3212 (a), that defendant had not properly applied the fee schedule, and that defendant had failed to show that a deductible was applicable since the copy of the automobile insurance policy included in the moving papers contains an out-of-state certification. By order entered January 22, 2015, the Civil Court granted defendant’s motion.

It is uncontroverted that defendant served plaintiff with its original motion for summary judgment dismissing the complaint on April 14, 2014, which was within 120 days of the filing of the notice of trial on December 13, 2013. However, the Clerk of the Kings County Civil Court did not accept the filing of the motion because the notice of motion contained an incorrect address for the court. Thereafter, in May 2014, defendant filed a second, otherwise identical, motion for summary judgment dismissing the complaint, which set forth the correct address for the Civil Court. “It does not follow from the fact that this single motion had been served . . . on two separate occasions that its timeliness must be judged by the later . . . rather than the earlier . . . date of service. The mere fact that the defendant, after having served its original notice of motion on the plaintiff’s attorney in a timely fashion, filed new motion papers seeking the same relief, [was] not fatal to [such motion]” (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562 [2006] [internal quotation marks and citations omitted]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant’s second motion for summary judgment dismissing the complaint was not untimely.

With respect to the merits of defendant’s motion, we note that, on appeal, plaintiff does not renew its claim that defendant did not properly apply the fee schedule. Plaintiff claims that the copy of the automobile insurance policy annexed to defendant’s moving papers was [*2]inadmissible because it lacked a proper certificate of conformity. However, the absence of a certificate of conformity is not a fatal defect (see Bank of NY Mellon v Vytalingam, 144 AD3d 1070 [2016]; Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co., 46 Misc 3d 138[A], 2015 NY Slip Op 50078[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the case at bar, plaintiff failed to make any showing of prejudice. Inasmuch as the affidavits and documents defendant submitted sufficiently established that the automobile insurance policy in question had a $200 personal injury protection deductible, we find no basis to disturb the Civil Court’s implicit finding that defendant, pursuant to the terms of the policy, was entitled to deduct $200 from the sum it was required to pay plaintiff for the services plaintiff had rendered to its assignor in July 2007.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 3, 2015. The order, insofar as appealed from, granted defendant’s motion to dismiss the complaint for plaintiff’s failure to provide discovery, pursuant to an order of the same court (Richard G. Latin, J.) entered July 28, 2014, to the extent of directing plaintiff to serve responses to certain enumerated demands within 60 days.

ORDERED that the order entered February 3, 2015, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, on December 5, 2013, served an answer and demands for discovery including “supplemental combined demands.” Plaintiff did not provide the requested discovery but, instead, moved for summary judgment. Thereafter, defendant cross-moved, among other things, to dismiss the complaint pursuant to CPLR 3126, or, in the alternative, to compel plaintiff to respond to the discovery demands. Plaintiff served papers in opposition to defendant’s cross motion, which included incomplete responses to the discovery demands. By order entered July 28, 2014, the Civil Court (Richard G. Latin, J.) granted defendant’s cross motion to the extent of directing plaintiff to provide responses to the “supplemental combined demands” within 60 days. The order and notice of its entry were served on plaintiff’s counsel on August 5, 2014. Plaintiff did not serve the ordered discovery responses but, instead, served a notice of trial and certificate of readiness, which defendant’s attorneys received approximately one week later, on August 13, 2014.

Defendant then moved, pursuant to CPLR 3126, to dismiss the complaint, or, in the alternative, to vacate the notice of trial and certificate of readiness, or, in the alternative, to direct plaintiff to provide discovery responses, in accordance with the Civil Court’s July 28, 2014 order. Plaintiff opposed the motion and annexed responses which consisted primarily of objections to the “supplemental combined demands.” Plaintiff appeals from so much of an order of the Civil Court (Jodi Orlow, J.) entered February 3, 2015 as granted defendant’s motion to the extent of directing plaintiff to provide, within 60 days, responses to certain enumerated discovery demands and stated that the action would be dismissed based upon an affirmation of noncompliance by defense counsel.

Since the demands for discovery were served on plaintiff’s counsel on December 5, 2013 [*2]and plaintiff did not challenge the propriety of the demands within the time prescribed by CPLR 3122 (a), plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands at issue seek information which is palpably improper or privileged. In light of the foregoing and the Civil Court order entered July 28, 2014, and as plaintiff’s remaining contentions lack merit, we find no basis to disturb the February 3, 2015 order, insofar as appealed from.

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

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

Decided on February 8, 2017

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

Decided on January 20, 2017

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

Decided on January 20, 2017

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 22, 2014. The judgment entered pursuant to an order of the same court dated July 2, 2014 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $549.18.

ORDERED that the judgment is reversed, without costs, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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 on the ground, among others, that the assignor’s failure to appear for examinations under oath (EUOs) violated a condition precedent to coverage, which provided defendant with a basis for its founded belief that the underlying accident was not a covered event. In the alternative, defendant’s cross motion sought a stay of the action pending the determination of a Supreme Court declaratory judgment action involving the same accident, medical provider and assignor. By order dated July 2, 2014, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant had failed to demonstrate that the assignor had failed to appear at two scheduled EUOs. A judgment was subsequently entered in plaintiff’s favor on August 22, 2014, from which defendant appeals.

Upon a review of the record, we find that plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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 case.

In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. [*2]Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

We pass on no other issue.

Accordingly, the judgment is reversed, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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

Decided on January 20, 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, Queens County (Terrence C. O’Connor, J.), entered May 6, 2015. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.

ORDERED that the order entered May 6, 2015 is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for a stay, arguing that there was a question as to whether plaintiff’s assignor had been injured during the course of his employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order entered March 7, 2013, the Civil Court (Larry Love, J.) denied plaintiff’s motion and granted defendant’s cross motion, finding that, since there was an issue of fact as to whether the accident had occurred in the course of the assignor’s employment, Board resolution was required. The order further stated that should the matter not be filed with the Board “within 90 days of this order, the action may be dismissed, absent any good cause from the plaintiff.”

Approximately 21 months later, defendant moved to dismiss the complaint based upon plaintiff’s failure to comply with the Civil Court’s March 7, 2013 order, i.e., to demonstrate by June 7, 2013 (90 days from the date of the court’s order) that an application to the Board had been made. Plaintiff cross-moved for leave to renew its motion for summary judgment based on “new facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e] [2]).” In support of renewal, plaintiff offered, among other things, an affidavit by a paralegal of plaintiff’s counsel’s firm, who had requested that a Board employee conduct a search of plaintiff’s assignor’s name in the Board’s database, which found no record of plaintiff’s assignor having made an application for workers’ compensation benefits. From this “new evidence,” plaintiff concluded that the matter was not subject to or covered by the Workers’ Compensation Law and that there was no Board jurisdiction. Plaintiff reasoned that since it had demonstrated in its prior motion that it was entitled to summary judgment, defendant was responsible for payment of plaintiff’s claims for assigned no-fault benefits.

In an order entered May 6, 2015, from which plaintiff appeals, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross [*2]motion for leave to renew its prior motion for summary judgment. We affirm.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Since it cannot be said that the alleged “new facts” offered by plaintiff would have changed the prior determination, and since plaintiff did not show good cause why the complaint should not be dismissed, the Civil Court properly denied plaintiff’s cross motion for leave to renew and granted defendant’s motion to dismiss the complaint.

Accordingly, the order is affirmed.

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

Decided on January 20, 2017

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