Decided on April 18, 2016

Decided on April 13, 2016

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 11, 2016

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant.

Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

Ordered that the order is reversed, without costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of insurance coverage is denied, and the matter is remitted to the Civil Court for a determination of the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of medical necessity for the services rendered.

In this action by a New York City provider to recover assigned first-party no-fault benefits for services rendered to its assignor, who had allegedly sustained injuries in a New York City motor vehicle accident on July 29, 2009, defendant^[FN*] moved for summary judgment dismissing the complaint on the{**51 Misc 3d at 72} grounds that no coverage existed and that there was a lack of medical necessity for the services rendered. In support of its motion, defendant argued, among other things, that the Civil Court failed to obtain personal jurisdiction over defendant; that a conflict-of-law analysis required the application of Michigan law; and that there was a lack of coverage for the vehicle involved in the accident, as a Michigan court had issued an order, entered on default, in a declaratory judgment action, declaring the policy to be invalid at its inception due to the rescission of the insurance policy based on fraud and/or misrepresentation by the insured in procuring the Michigan policy. By order entered April 2, 2014, the Civil Court granted defendant’s motion, implicitly finding that personal jurisdiction over defendant had been acquired and holding that Michigan law controlled, pursuant to which an insurer may rescind an [*2]insurance policy and declare it void at its inception despite the fact that the claimant is an innocent third party. This appeal by plaintiff ensued. It is noted that plaintiff raises no issue regarding the Civil Court’s determination that Michigan law controls.

[1] Despite defendant’s assertions that it does not write insurance policies or conduct business in New York, it is uncontroverted that defendant’s New York certificate of authority states that defendant is licensed to engage in specified insurance business in New York. Consequently, defendant was authorized to do business in New York State, and, pursuant to Insurance Law § 1212 (a), an insurer authorized to do business in the state must appoint the Superintendent of Insurance as its agent for service of process “in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in this state” (emphasis added). Inasmuch as the cause of action in the case at bar arose in New York, we find that the service of process upon the Superintendent of Insurance was sufficient to acquire jurisdiction over defendant (see Insurance Law § 1212 [b]).

[2] Michigan law allows for the rescission of a motor vehicle insurance policy based on fraud or a material misrepresentation in the application for insurance (see Titan Ins. Co. v Hyten, 491 Mich 547, 817 NW2d 562 [2012]; Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *15-16 [Ct App, July 30, 2013, docket No. 301188], appeal denied 494 Mich 883, 834 NW2d 503 [2013]; Lake States Ins. Co. v Wilson, 231 Mich App 327, 586 NW2d 113 [1998]). However, Michigan{**51 Misc 3d at 73} has generally denied an insurer’s right to rescind a policy of insurance in order to avoid payment of no-fault benefits to an innocent third party (see Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *15-16; Great Lakes Cas. Ins. Co. v Auto Owners Ins. Co., 2010 WL 2595102, *1, 2010 Mich App LEXIS 1213, *2-3 [Ct App, June 29, 2010, docket No. 290871]; Lake States Ins. Co. v Wilson, 231 Mich App at 331, 586 NW2d at 115).

Contrary to the determination of the Civil Court, the holding of the Supreme Court of Michigan in Titan did not abrogate the innocent third party rule. In Gagnon, the plaintiff sought to recover no-fault personal injury protection benefits and the Court of Appeals of Michigan held that the innocent third party rule prohibited the insurer from rescinding the policy. The court distinguished Titan by holding that although the Supreme Court in Titan stated that an insurer is not precluded from availing itself of a remedy to avoid liability under an insurance policy on the ground of fraud in the application for insurance even when the claimant is a third party, “the insurer in Titan sought to reform an insurance policy by reducing the excess liability coverage limits available to innocent accident victims to the statutory minimum; it did not seek to completely avoid liability under the policy” (Gagnon v Citizens Ins. Co., 2013 WL 331548, *6, 2013 Mich App LEXIS 178, *19).

In view of the foregoing, we find that defendant cannot rely on a lack of coverage defense to withhold payment of no-fault benefits to plaintiff for the medical services it rendered to its assignor, who was an innocent third party. We note that since the Civil Court did not determine the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered, the matter is remitted to the Civil Court for a determination of that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground of lack of insurance coverage is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion.

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

Footnotes

Footnote *:In his affidavit in support of defendant’s motion, the general counsel for Auto Club Insurance Association states that “ACIA is also known as AAA Michigan.” However, defendant was not so described in the summons and complaint.

Decided on April 8, 2016

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 (Katherine A. Levine, J.), entered June 10, 2013. The order denied plaintiff’s motion to vacate a prior order of the same court, made at a jury trial, granting defendant’s oral motion pursuant to CPLR 4401 for judgment dismissing the complaint.

ORDERED that the order entered June 10, 2013 is reversed, with $30 costs, plaintiff’s motion to vacate the prior order granting defendant’s oral motion pursuant to CPLR 4401 for judgment dismissing the complaint is granted, defendant’s oral motion is denied, and the matter is remitted to the Civil Court for a new trial.

At a jury trial of this action by a provider to recover assigned first-party no-fault benefits, plaintiff sought repeatedly to have its purported assignment of benefits admitted into evidence. The Civil Court denied each application, and ultimately granted defendant’s oral CPLR 4401 application to dismiss the complaint, finding that plaintiff could not establish a prima facie case because it had been unsuccessful in having its assignment of benefits admitted into evidence. Plaintiff appeals from an order of the Civil Court entered June 10, 2013 which denied its subsequent motion to vacate the trial order dismissing the complaint.

Plaintiff’s motion should have been granted. Defendant’s CPLR 4401 motion for judgment as a matter of law was made before the close of plaintiff’s case, and was therefore premature (see Kamanou v Bert, 94 AD3d 704 [2012]). Furthermore, the court’s reason for granting the application was erroneous, as a no-fault plaintiff is not required to submit an executed assignment of benefits in order to demonstrate its prima facie entitlement to recover on a no-fault claim (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005], affd 9 NY3d 312 [2007]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Rather, for the assignment of benefits to become a subject of inquiry, a defendant must first demonstrate that it timely and properly raised an issue with respect to the assignment (see Hospital for Joint Diseases, 21 AD3d 348; Urban Radiology, P.C., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U]).

Accordingly, the order entered June 10, 2013 is reversed, plaintiff’s motion to vacate the prior order granting defendant’s oral motion pursuant to CPLR 4401 for judgment dismissing the complaint is granted, defendant’s oral motion is denied, and the matter is remitted to the Civil [*2]Court for a new trial.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered December 6, 2013. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated June 13, 2013 granting defendant’s motion to, in effect, vacate its default in opposing a prior motion by plaintiff, and granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3216 (e).

ORDERED that the order entered December 6, 2013, insofar as appealed from, is affirmed, without costs.

In this action to recover first-party no-fault benefits, by order dated June 13, 2013, the Civil Court granted a motion by defendant to, in effect, vacate its default in opposing a prior motion by plaintiff which had sought to place the action on the trial calendar. Plaintiff thereafter moved for leave to reargue her opposition to defendant’s motion, and defendant cross-moved to dismiss the complaint pursuant to CPLR 3216 (e). By order entered December 6, 2013, the Civil Court, upon granting reargument, adhered to its prior decision, and granted defendant’s cross motion.

This action, which was brought in 1998, was the subject of a prior appeal (Small v Metropolitan Prop. & Cas. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), in which this court found that the action had been marked off in 1999 and that when plaintiff moved to restore the case in 2010, in response to a 90-day notice served by defendant (see CPLR 3216), she was required to demonstrate a meritorious cause of action and a reasonable excuse for the delay in moving to restore. Contrary to plaintiff’s arguments on this appeal, that decision is law of the case (see 10A Carmody-Wait 2d § 70:537), and, as defendant and the Civil Court noted, plaintiff cannot evade the requirements set forth by this court by simply bringing the same motion under another name. As plaintiff has yet to demonstrate a meritorious cause of action or reasonable excuse for her multi-year delay, and as plaintiff has failed to demonstrate that the Civil Court overlooked or misapprehended any matter of fact or law (see CPLR 2221 [d] [2]), the Civil Court properly adhered to its prior determination.

We also find that the Civil Court properly granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3216 (e) (see Picot v City of New York, 50 AD3d 757 [2008]; Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124 [2007]; Missos v General Motors Corp., 30 [*2]AD3d 303 [2006]).

Accordingly, the order entered December 6, 2013, insofar as appealed from, is affirmed.

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

Decided on March 28, 2016

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Nancy M. Bannon, J.) entered August 22, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Nancy M. Bannon, J.) entered August 22, 2013, reversed, with $10 costs, defendant’s motion denied, and the complaint reinstated.

The defendant-insurer’s motion for summary judgment dismissing this first-party no-fault action should have been denied. Initially, we note that Civil Court correctly determined that defendant’s documentary submissions were sufficient to establish, prima facie, that its denial of claim forms were timely and properly mailed (see Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169 [2014]; AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., ____ AD3d_____, 2016 NY Slip Op 00916 [2016]), and that the peer review reports of defendant’s chiropractor were in admissible form (see Furtow v Jenstro Enters., Inc., 75 AD3d 494, 495 [2010]; Collins v AA Trucking Renting Corp., 209 AD2d 363 [1994]).However, the copy of the November 4, 2011 peer review report, ostensibly submitted by defendant to establish the lack of medical necessity for the medical supplies underlying plaintiff’s claims in the amounts of $481.55 and $540.94, was incomplete, since certain pages of the report were missing, and was thus insufficient to establish the defense of lack of medical necessity.

The October 25, 2011 peer review report submitted by defendant made a prima facie showing that the medical supplies underlying plaintiff’s claims in the amounts of $1,107.70 and $1,150 were not medically necessary. However, the medical affidavit submitted by plaintiff, which specified the assignor’s medical conditions and described the intended benefits of each of the medical supplies at issue, was sufficient to raise a triable issue of fact as to medical necessity [*2](see AutoOne Ins./General Assurance v Eastern Island Med. Care, P.C., supra; Amherst Med. Supply, LLC v A. Cent. Ins. Co., 41 Misc 3d 133[A], 2013 NY Slip Op 51800[U][App Term, 1st Dept. 2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on March 23, 2016

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered December 17, 2013. 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 which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

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, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff’s contention, plaintiff failed to establish a prima facie case, and the burden never shifted to defendant.

Defendant, in support of its cross motion, failed to demonstrate that it is not precluded from asserting the defense of fraudulent procurement of the policy, as defendant failed to establish that it had timely denied plaintiff’s claim (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, 11th & 13th Jud Dists 2015]). Thus, defendant is not entitled to summary judgment on that ground. To the extent defendant also sought summary judgment on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s proffered evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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