Decided on March 7, 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, Kings County (Carol Ruth Feinman, J.), entered August 1, 2014. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

New Millennium Medical Imaging, P.C. (New Millennium) commenced this action against American Transit Ins. Co. (American Transit) to recover first-party no-fault benefits for medical services that had been provided to plaintiff’s assignor as a result of injuries, which, the complaint stated, had been sustained in an automobile accident that had occurred on March 17, 2012. Before New Millennium commenced this action, the insurer, American Transit, had commenced a declaratory judgment action in Supreme Court, New York County, against New Millennium and its assignor, Nicholas Toc, among others, alleging that the providers’ claims had been timely and properly denied on the ground that their assignor had failed to attend duly scheduled independent medical examinations (IMEs). After the providers had failed to appear in the Supreme Court action, American Transit moved in the Supreme Court for an order granting it leave to enter a default declaratory judgment, declaring that, because of the assignor’s nonappearances at the scheduled IMEs, New Millennium and the other providers were not entitled to no-fault coverage “for the motor vehicle accident that occurred on 4/2/2012.” The Supreme Court issued a declaratory judgment, dated September 11, 2013, declaring that American Transit had no duty to pay no-fault claims “with respect to the April 02, 2012 collision.”

Thereafter, American Transit moved in the Civil Court, pursuant to CPLR 3212, for summary judgment dismissing New Millennium’s complaint, contending that the action is barred by virtue of the declaratory judgment. New Millennium opposed the motion. The affirmation of American Transit’s counsel, and a letter submitted by the insurer as an exhibit to the motion, both referred to an accident that had occurred on March 17, 2012. By order entered August 1, 2014, the Civil Court denied American transit’s motion, finding that an issue of fact exists as to whether the Supreme Court judgment applies to the present litigation.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any [*2]material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Res judicata, or claim preclusion, may be invoked where a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which had been raised or could have been raised in the prior litigation (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Albanez v Charles, 134 AD3d 657 [2015]; Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Here, American Transit failed to establish its entitlement to summary judgment, because its own papers presented two different accident dates, March 17, 2012 and April 2, 2012. Thus, a question of fact exists as to whether plaintiff’s claim arose out of the same transaction as was in controversy in the Supreme Court litigation (see Schuylkill Fuel Corp., 250 NY at 306-307; Albanez, 134 AD3d 657; Eagle Surgical Supply, Inc., 40 Misc 3d 139[A], 2013 NY Slip Op 51441[U]). We decline to consider the assignment of benefits form which American Transit proffered to show the date of the accident at issue, as the assignment of benefits form was submitted for the first time in American Transit’s reply papers (see L’Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 [2013]; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]).

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 27, 2013. The order denied plaintiff’s motion to restore the action to the trial calendar.

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

This action by a provider to recover assigned first-party no-fault benefits was “marked off” the trial calendar on April 3, 2013. On April 8, 2013, plaintiff moved to restore the action to the trial calendar pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c). In an affirmation in support of the motion, plaintiff’s counsel stated that the case had been “marked off” when plaintiff’s witness was “unavailable and unable to appear” for trial. Counsel further stated that “the action is ready to resume trial.” In opposition to the motion, defendant’s attorney argued, among other things, that plaintiff’s motion failed to demonstrate that plaintiff is presently ready for trial. The Civil Court denied plaintiff’s motion, stating, erroneously, that more than one year had passed since the case had been marked off without restoration. The court also stated, citing CPLR 3404, that plaintiff had failed to demonstrate “a reasonable excuse, a meritorious claim, lack of intent to abandon [and a] lack of prejudice to [defendant].”

At the outset, we note that, contrary to the determination of the Civil Court, plaintiff’s motion to restore was made within one year after the action had been “marked off” the trial calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]). We further note that CPLR 3404 applies solely to cases in the Supreme or County Courts (see Chavez v 407 Seventh Ave. Corp., 39 AD3d 454 [2007]), not to cases in the Civil Court.

Pursuant to Uniform Rules for New York City Civil Court (22 NYCRR) § 208.14 (c), when an action has been stricken from the calendar and a party moves within a year to restore the action to the calendar, that motion “must be supported by affidavit by a person having firsthand knowledge, satisfactorily explaining the reasons for the action having been stricken and showing that it is presently ready for trial.” Here, plaintiff’s counsel’s bare assertion, that the action had been stricken because plaintiff’s witness had been “unavailable,” was conclusory, since it failed to provide any indication as to who the witness was or any reason as to why the witness was unavailable. As plaintiff failed to proffer a satisfactory explanation for the action having been stricken from the calendar (see Uniform Rules for NY City Civ Ct [22 NYCRR] § 208.14 [c]), plaintiff’s motion was properly denied. In view of the foregoing, we do not reach the parties’ remaining contentions.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered December 12, 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 of the Civil Court which denied his motion for summar judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. Even if plaintiff had made a prima facie case, an issue we do not decide, his motion for summary judgment was properly denied. The papers submitted by defendant in opposition to plaintiff’s motion for summary judgment were sufficient to establish that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim form, which denied the claim on the ground of plaintiff’s assignor’s fraudulent procurement of the insurance policy in question by virtue of her misrepresentation of her place of residence in order to obtain insurance at a lower premium. Furthermore, defendant’s papers demonstrated that there is, at least, a triable issue of fact as to whether the assignor had provided a fraudulent address when she obtained the insurance policy.

With respect to defendant’s cross motion, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). No-fault benefits may be denied to an insured where an insurer submits evidence in admissible form showing that the insured had fraudulently procured the insurance policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]; New Millennium Psychological Servs., P.C. v Commerce Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52286[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Upon the record before us, we find [*2]that defendant failed to establish as a matter of law that plaintiff’s assignor had made material misrepresentations in order to obtain insurance at reduced premiums (see Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co., 47 Misc 3d 147[A], 2015 NY Slip Op 50756[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co., 44 Misc 3d 142[A], 2014 NY Slip Op 51322[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 25 Misc 3d 30 [App Term, 1st Dept 2009]).

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

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 26, 2016

APPEARANCES OF COUNSEL

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

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 of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

As a preliminary matter, because plaintiff failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. {**51 Misc 3d at 68} 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]), plaintiff failed to demonstrate its prima facie entitlement to summary judgment.

Defendant cross-moved for summary judgment, arguing that one ground upon which it had timely denied plaintiff’s claims was that no one on plaintiff’s behalf had complied with 11 NYCRR 65-1.1, which states that written notice of an accident must be “given” to the insurer “as soon as reasonably practicable, but in no event more than 30 days after the date of the accident” (11 NYCRR 65-1.1 [d]; see also Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007] [a claimant must “submit a notice of claim to the insurer as soon as practicable and no later than 30 days after an accident”]). The affidavit of defendant’s no-fault claims manager, submitted in support of defendant’s cross motion, stated that defendant had first learned of the October 14, 2010 accident when it received an NF-2 form on November 15, 2010, thereby demonstrating that defendant had not received written notice of the accident within 30 days after it had occurred.

Plaintiff argues that mailing written notice of the accident to the insurer on or before the 30th day after the accident will satisfy the 30-day notice requirement of 11 NYCRR 65-1.1. We [*2]agree. We note that 11 NYCRR 65-1.1 does not define what it means for a written notice to be “given,” and the Court of Appeals did not elaborate when it stated that a claimant must “submit” a notice of claim (Hospital for Joint Diseases, 9 NY3d at 317). However, 11 NYCRR 65-3.4 (b) requires no-fault insurers to “forward to the applicant the prescribed application for motor vehicle no-fault benefits (NYS form [NF-2]) accompanied by the prescribed cover letter (NYS form [NF-1]),” and the prescribed cover letter included in Appendix 13 to Regulation 68 states that the NF-2 application for no-fault benefits (which satisfies the written notice requirement [see 11 NYCRR 65-3.3 (d)]) “must be sent to [the insurer] within 30 days of the accident date if your original notice to [the insurer] was not in writing.” We hold that mailing the written notice of claim to the insurer within 30 days of the accident satisfies the requirement that written notice be “sent” to the insurer, as instructed by the prescribed cover letter, and that written notice be “given” to the insurer, as required by 11 NYCRR 65-1.1.

Here, defendant did not demonstrate, prima facie, that timely written notice of the accident had not been mailed to it. Rather, the 30th day after the accident fell on a Saturday,{**51 Misc 3d at 69} November 13, 2010, making Monday, November 15, 2010 the date on which defendant alleges it first received an NF-2 form, the last date by which written notice of the accident could be timely mailed (see General Construction Law §§ 25, 25-a; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]; see also General Construction Law § 20 [providing, in pertinent part, that “(t)he day from which any specified period of time is reckoned shall be excluded in making the reckoning”]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

Metropolitan Diagnostic Medical Care, P.C. (Metropolitan) commenced this action in the Civil Court on March 14, 2012 to recover first-party no-fault benefits for services provided to its assignor as a result of injuries that had been sustained in a motor vehicle accident. American Commerce Insurance Company (ACIC) answered the complaint, asserting, among other things, that Metropolitan’s action is barred by the doctrines of collateral estoppel and res judicata. Approximately one week before Metropolitan commenced its Civil Court action, ACIC had commenced a declaratory judgment action in Supreme Court, New York County, against Metropolitan and its assignor, Kester Alleyne, among others, alleging that Alleyne had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, ACIC is not obligated to pay any claims for first-party no-fault benefits submitted by Metropolitan as assignee of Alleyne arising from the accident in question. ACIC subsequently moved in Supreme Court for an order, pursuant to CPLR 3215, granting ACIC a default judgment. By “order and judgment” entered February 7, 2013, the Supreme Court awarded ACIC a declaratory judgment on default, declaring that ACIC had no obligation to pay Metropolitan or its assignor for any claims for no-fault benefits under the claim number at issue.

Thereafter, ACIC moved in the Civil Court for, among other things, summary judgment dismissing the complaint on the ground that Metropolitan’s cause of action is barred under the doctrines of res judicata and collateral estoppel. In opposition to the motion, Metropolitan submitted an affirmation by its counsel, who argued, among other things, that Metropolitan had been unaware of the Supreme Court action when it had commenced this action in the Civil Court, and that ACIC’s answer in the Civil Court had failed to assert the pendency of the declaratory judgment action as an affirmative defense. By order entered January 24, 2014, the Civil Court granted the branch of ACIC’s motion seeking summary judgment dismissing the complaint.

In light of the “order and judgment” in the declaratory judgment action, the present action [*2]is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). We note that, contrary to Metropolitan’s contention, defendant’s answer in the Civil Court, which answer had been filed after the Supreme Court declaratory judgment action had been commenced but before the default “order and judgment” had been entered, asserted that another action was “pending between the same parties for the same cause of action in a different court.” We also find no merit in the particular equitable estoppel argument raised by Metropolitan on appeal. Metropolitan’s remaining arguments similarly lack merit.

Accordingly, the order is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered March 27, 2014. The order denied plaintiff’s motion to vacate a prior order of the same court (Pamela L. Fisher, J.) entered November 21, 2012, which granted, on default, defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered March 27, 2014 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 of lack of medical necessity for the services at issue. Although the parties entered into a stipulation adjourning defendant’s motion and setting forth dates for the submission of opposition and reply papers, plaintiff did not oppose defendant’s motion. By order entered November 21, 2012, the Civil Court granted defendant’s motion “with no opposition” and dismissed the complaint with prejudice. Defendant served the order with notice of entry on November 29, 2012. Thereafter, on June 7, 2013, plaintiff, asserting law office failure, moved to vacate the November 21, 2012 order, and, upon vacatur, to deny defendant’s motion for summary judgment. Defendant opposed plaintiff’s motion. Plaintiff appeals from an order of the Civil Court entered March 27, 2014 denying plaintiff’s motion.

The Civil Court did not improvidently exercise its discretion in denying plaintiff’s motion, in view of the almost seven-month delay in moving to vacate the order and plaintiff’s failure to establish a reasonable excuse for its default (see CPLR 5015 [a]). A claim of law office failure may be accepted as a reasonable excuse (see CPLR 2005) where the claim is supported by a “detailed and credible” explanation of the default (Henry v Kuveke, 9 AD3d 476, 479 [2004]; see State Farm Mut. Auto. Ins. Co. v Preferred Trucking Serv. Corp., 42 Misc 3d 88, 90 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Queens-Roosevelt Med. Rehab., P.C. v Alea Care of Gab Robins Ins. Co., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff’s claim of law office failure was conclusory and unsubstantiated, and, under the circumstances presented, did not constitute a reasonable excuse for the default (see Herrera v MTA Bus Co., 100 AD3d 962 [2012]; State Farm Mut. Auto. Ins. Co., 42 Misc 3d at 90; Queens-Roosevelt Med. Rehab., P.C., 43 Misc 3d 142[A], 2014 NY Slip Op 50867[U]). Consequently, it is unnecessary to determine whether plaintiff demonstrated the existence of a potentially meritorious opposition to defendant’s [*2]summary judgment motion (see Herrera, 100 AD3d at 963; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2011]).

Accordingly, the order is affirmed.

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

Decided on February 22, 2016

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

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), entered September 8, 2008. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff’s motion for summary judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued, among other things, that plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law. The District Court denied plaintiff’s motion, finding that the affidavit of plaintiff’s president and medical biller was insufficient to establish that plaintiff’s claim forms were admissible as business records. An appeal by plaintiff ensued, and by decision and order entered October 6, 2009, this court affirmed the order of the District Court. Thereafter, plaintiff moved for leave to renew its motion based upon a change in the law with respect to the requirements for the establishment by a plaintiff provider of its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]). We note that, while plaintiff did not make its motion until 2014, the motion is not untimely since a final judgment has not been entered (see Dinallo v DAL Elec., 60 AD3d 620 [2009]; Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]).

It is now settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits [is] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). Contrary to the determination of the District Court, plaintiff was not required to establish, as part of its prima facie case, that its claim forms were admissible for the truth of the matters asserted therein pursuant to CPLR 4518 (see Viviane Etienne Med. Care, P.C., 25 NY3d 498). A review of the record before us shows that plaintiff made its prima facie showing and, in opposition, defendant failed to raise a triable issue of fact. With respect to the $802 claim submitted by plaintiff as assignee of Darwin Jimenez, defendant failed to establish that its follow-up notice scheduling an examination under oath (EUO) had been timely mailed (see 11 NYCRR 65-3.6 [*2][b]). Furthermore, with respect to the $1,277 and $995 claims submitted by plaintiff as assignee of Gilberto Estevez, while defendant’s papers reflect that Estevez appeared for an EUO on July 30, 2003, defendant’s own submissions showed that defendant did not deny those claims until October 1, 2003.

Consequently, defendant failed to demonstrate that it had tolled the time to pay or deny plaintiff’s claims, and, thus, that it is not precluded from raising its proffered defenses (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), that Jimenez had failed to appear for an EUO, and that the EUO testimony of Estevez had failed to establish proof of the $1,277 and $995 claims.

Accordingly, the order is reversed and plaintiff’s motion for summary judgment is granted.

The decision and order of this court entered herein on October 6, 2009 (25 Misc 3d 128[A], 2009 NY Slip Op 52068[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]) are hereby recalled and vacated (see motion decided simultaneously herewith).

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

Decided on February 18, 2016