Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.
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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.
Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Indeed, in support of plaintiff’s cross motion, plaintiff’s counsel virtually conceded that plaintiff had failed to appear for the EUOs. Contrary to plaintiff’s further argument, defendant established that it had properly tolled its time to pay the two claims in question (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
We also reject plaintiff’s contention that defendant’s motion was premature in light of outstanding discovery (see CPLR 3212 [f]). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff did not object to defendant’s reasons for [*2]seeking the EUO during the claims processing stage, plaintiff may not raise such objections in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (cf. CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).
Plaintiff’s remaining arguments are moot and/or lack merit.
Accordingly, the order is affirmed.
Elliot, J.P., Weston and Solomon, JJ., concur.
Decision Date: April 25, 2016
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50649(U))
| Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. |
| 2016 NY Slip Op 50649(U) [51 Misc 3d 141(A)] |
| Decided on April 19, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 19, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1697 Q C
against
Unitrin Direct Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 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 Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.
Although the affidavit of defendant’s claims examiner established prima facie that defendant had not received the claim at issue, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: April 19, 2016
Reported in New York Official Reports at Urban Well Acupuncture, P.C. v Hereford Ins. Co. (2016 NY Slip Op 50606(U))
| Urban Well Acupuncture, P.C. v Hereford Ins. Co. |
| 2016 NY Slip Op 50606(U) [51 Misc 3d 139(A)] |
| Decided on April 18, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 18, 2016
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
571045/15
against
Hereford Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered February 11, 2015, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Per Curiam.
Order (Jose A. Padilla, Jr., J.), entered February 11, 2015, affirmed, with $10 costs.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely denied certain no-fault claims on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule (see Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 41 Misc 3d 134[A], 2013 NY Slip Op 51860[U][App Term, 1st Dept 2013]; Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]), and that the remaining claims were paid by defendant pursuant to a settlement agreement.
In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denials (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]), or the calculation of the fee. Accordingly, defendant’s motion for summary judgment dismissing plaintiff’s claims – which sought the difference between the amount charged for the acupuncture services and payments made to plaintiff pursuant to the fee schedule or settlement agreement, was properly granted.
Plaintiff’s remaining contentions are either without merit or, where plaintiff failed to articulate any specific arguments in its appellate brief, abandoned on appeal (see Mendoza v Akerman Senterfitt LLP, 128 AD3d 480, 483 [2015]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 18, 2016
Reported in New York Official Reports at MDJ Med. PC v Delos Ins. Co. (2016 NY Slip Op 50604(U))
| MDJ Med. PC v Delos Ins. Co. |
| 2016 NY Slip Op 50604(U) [51 Misc 3d 139(A)] |
| Decided on April 18, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 18, 2016
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570965/15
against
Delos Insurance Company and North American Risk Services as Third Party Administrator, Defendants-Appellants.
Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Elizabeth A. Taylor, J.), entered July 8, 2014, which denied their motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Elizabeth A. Taylor, J.), entered July 8, 2014, reversed, with $10 costs, and defendants’ motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.
The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath (EUOs) to plaintiff’s assignor (see American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [2013]), and that the assignor failed to appear at two scheduled EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). Contrary to plaintiff’s specific contention, defendant established that it requested the EUOs within the applicable time frames set forth in the no-fault regulations, by submitting its EUO letters dated February 4, 2011 and March 1, 2011 (see 11 NYCRR 65-3.5[b], 65-3.6[b]; cf. National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [2015]). Moreover, the attorney who was assigned by defendant to take an EUO of plaintiff’s assignor with respect to the subject claim, and “who would have conducted the EUO if the [assignor] had appeared certainly was in a position to state that the [assignor] . . . did not . . . appear in his office on the date[s] indicated” (Hertz Corp., 124 AD3d at 411).
In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the [*2]assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 18, 2016
Reported in New York Official Reports at Lotus Acupuncture PC v Unitrin Advantage Ins. Co. (2016 NY Slip Op 50603(U))
| Lotus Acupuncture PC v Unitrin Advantage Ins. Co. |
| 2016 NY Slip Op 50603(U) [51 Misc 3d 139(A)] |
| Decided on April 18, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 18, 2016
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570359/15
against
Unitrin Advantage Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.) dated April 4, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Debra Rose Samuels, J.) dated April 4, 2014, 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., 136 AD3d 722 [2016]), and that the peer review reports of defendant’s acupuncturist 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 peer review report pertaining to acupuncture services rendered November 19, 2007 through November 29, 2007, failed to make a prima facie showing that the services rendered during this time frame were not medically necessary. The peer reviewer’s assertion, in effect, that the documentation submitted for his review lacked “supportive information” was insufficient to sustain defendant’s burden of eliminating all triable issues as to medical necessity (see Amherst Med. Supply, LLC v New York Cent. Mut. Fire Ins. Co., 39 Misc 3d 135[A], 2013 NY Slip Op 50586[U][App Term, 1st Dept 2013]). Moreover, inasmuch as the peer reviewer did not address plaintiff’s claim for services rendered January 2, 2008, and “stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatment,” his report cannot properly form the basis for denial of this claim (see Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 44 Misc 3d 144[A], [*2]2014 NY Slip Op 51407[U][App Term, 1st Dept. 2014]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 18, 2016
Reported in New York Official Reports at Lancer Acupuncture, P.C. v Amica Mut. Ins. Co. (2016 NY Slip Op 50537(U))
| Lancer Acupuncture, P.C. v Amica Mut. Ins. Co. |
| 2016 NY Slip Op 50537(U) [51 Misc 3d 134(A)] |
| Decided on April 13, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 13, 2016
PRESENT: Lowe, III, P.J., Schoenfeld, Ling-Cohan, JJ.
570895/15
against
Amica Mutual Ins. Co., Defendant-Respondent.
Plaintiff, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered April 16, 2015, which, upon reargument, adhered to its prior order granting defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Gerald Lebovits, J.), entered April 16, 2015, modified by reinstating plaintiff’s claim for first-party no-fault benefits billed under CPT code 99302; as modified, order affirmed, with $10 costs.
Defendant’s documentary submissions failed to eliminate all triable issues as to whether it properly denied plaintiff’s no-fault claim for $54.74, billed under CPT code 99203 (initial evaluation), thus precluding summary judgment dismissing this claim (see Easy Care Acupuncture, P.C. v Nationwide Gen. Ins. Co., 50 Misc 3d 127[A], 2015 NY Slip Op 51849[U][App Term, 1st Dept. 2015]).
In the absence of any prejudice, Civil Court properly exercised its discretion under CPLR 2001, to allow defendant to correct the defect in form of the IME report of its acupuncturist/chiropractor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 13, 2016
Reported in New York Official Reports at Flushing Traditional Acupuncture, P.C. v Auto Club Ins. Assn., AAA Mich. (2016 NY Slip Op 26125)
| Flushing Traditional Acupuncture, P.C. v Auto Club Ins. Assn., AAA Mich. |
| 2016 NY Slip Op 26125 [51 Misc 3d 70] |
| Accepted for Miscellaneous Reports Publication |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 22, 2016 |
[*1]
| Flushing Traditional Acupuncture, P.C., as Assignee of Harry Brenton, Appellant, v Auto Club Insurance Association, AAA Michigan, Respondent. |
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.
{**51 Misc 3d at 71} OPINION OF THE COURT
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.
Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v American Commerce Ins. Co. (2016 NY Slip Op 50596(U))
| Charles Deng Acupuncture, P.C. v American Commerce Ins. Co. |
| 2016 NY Slip Op 50596(U) [51 Misc 3d 139(A)] |
| Decided on April 8, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 8, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-2050 Q C
against
American Commerce Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 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 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.
Plaintiff raises no issue with respect to defendant’s showing that the policy in question is a Massachusetts insurance policy. On the record before us, the 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]; Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]). Massachusetts law requires minimum compensation for personal injury protection benefits in the amount of $8,000 for one person in any one accident (see Mass Gen Laws Ann ch. 90, § 34A) and provides for optional medical payments under an insurance policy “to a limit of at least” $5,000 for one person in any one accident (see Mass Gen Laws Ann ch. 175, § 113C). Defendant made a prima facie showing, through the affidavits of its employees and through the submission of evidence in admissible form, including the insurance policy at issue and defendant’s payment log, that the policy provided for a limit of $13,000 in medical expenses coverage. Plaintiff’s own submission, the affidavit of its owner, showed that plaintiff had mailed the claim, which comprised the first cause of action, to defendant after the policy limit had been exhausted (see New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]). The record further demonstrates that defendant established, prima facie, that it had paid the claims which comprised the second and third causes of action. Plaintiff failed to raise a triable issue of fact in opposition, and its remaining arguments are without merit or were not preserved for appellate review. Consequently, plaintiff’s motion for summary judgment was properly denied and defendant’s cross motion for summary judgment dismissing the complaint was properly granted.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: April 08, 2016
Reported in New York Official Reports at Beal-Medea Prods., Inc. v Geico Gen. Ins. Co. (2016 NY Slip Op 50594(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Geico General Ins. Co., Respondent.
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.
Decision Date: April 08, 2016
Reported in New York Official Reports at Small v Metropolitan Prop. & Cas. Ins. Co. (2016 NY Slip Op 50557(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Metropolitan Property & Casualty Insurance Company, Respondent.
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.
Decision Date: April 06, 2016