Decided on December 14, 2015

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

Decided on December 14, 2015

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

Decided on December 14, 2015

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 14, 2015

APPEARANCES OF COUNSEL

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

Law Office of Printz & Goldstein, Woodbury (Bryan P. Fauci of counsel), for respondent.

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.

Plaintiff’s assignor was injured in a motor vehicle accident while riding in a vehicle which was insured by a New Jersey automobile insurance policy issued by defendant. Thereafter, plaintiff commenced this action to recover, among other things, assigned first-party no-fault benefits for the services it had rendered to its assignor, alleging that its claims were unpaid. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that the dispute had to be resolved by arbitration. In opposition to plaintiff’s motion and in support of the cross motion, defendant addressed only the merits of plaintiff’s motion, made no arguments in support of its cross motion, and did not move to compel arbitration. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendments and endorsements are to be interpreted pursuant to the laws of the state of New Jersey,” New Jersey law applies (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).^[FN*] In Bay Med. P.C., this court held that dispute resolution is not mandatory pursuant to NJ Stat Ann § 39:6A-5.1 (a), as implemented by NJ Admin Code § 11:3-5.1 (a), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute{**50 Misc 3d at 109} resolution upon the initiative of either party to the [*2]dispute (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273, 982 A2d 1, 2-3 [2009]). The insurance policy in question also states that a matter may be submitted to dispute resolution “on the initiative of any party to the dispute.” However, the existence of an option to arbitrate is not a ground for dismissal of a court action; such an option—if exercised by way of a motion to compel arbitration—is a ground to stay the court action (see CPLR 7503 [a]). As defendant has not moved to compel arbitration, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U]; Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Inasmuch as plaintiff failed to establish, in the first instance, the medical necessity of the services rendered (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]) and failed to show that defendant did not properly pay any claim within 60 days after it had been furnished with written notice of the fact of a covered loss and the amount of same (see NJ Stat Ann § 39:6A-5 [g]), under New Jersey law, plaintiff’s motion for summary judgment was properly denied.

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.

Footnotes

Footnote *:Contrary to plaintiff’s contention, the underwriter’s affidavit that defendant submitted in support of its cross motion laid a sufficient foundation to allow consideration of the exhibits annexed to the cross motion.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 26, 2014. The judgment, entered pursuant to an order entered March 12, 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 $3,939.10.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 12, 2014 as granted the branches of plaintiff’s motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon.

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 that the action is premature inasmuch as plaintiff had failed to provide requested additional verification of the claims in question. By order entered March 12, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s unopposed cross motion. Defendant appeals from a judgment entered March 26, 2014 pursuant to the March 12, 2014 order.

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavits of defendant’s claim representative and mail center employee established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its requests and follow-up requests for additional verification of the claims, with the exception of the claim for $121.18, upon which the eighth cause of action of the complaint was based. As to the first through seventh and the ninth causes of action, defendant demonstrated that it had not received the requested verification, and plaintiff did not oppose defendant’s cross motion. Consequently, the 30-day period within which defendant was [*2]required to pay or deny the claims on those causes of action did not begin to run (see 11 NYCRR § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and, thus, the first through seventh and the ninth causes of action are premature.

Accordingly, the judgment is reversed, so much of the order entered March 12, 2014 as granted the branches of plaintiff’s motion seeking summary judgment on the first through seventh and the ninth causes of action of the complaint and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the first through seventh and the ninth causes of action and in favor of plaintiff on the eighth cause of action, following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered April 29, 2014. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

On February 11, 2013, plaintiff commenced this action in the Civil Court, Kings County, to recover from defendant American Transit Ins. Co. (ATIC) assigned first-party no-fault benefits for services plaintiff had provided to its assignor, Emely Cordero, as a result of injuries sustained in a motor vehicle accident on October 23, 2011. Prior to the commencement of this action, ATIC had commenced a declaratory judgment action in the Supreme Court, Bronx County, against Emely Cordero and various providers, including plaintiff herein, alleging that, because Cordero had failed to appear at duly scheduled independent medical examinations, ATIC had no obligation to pay any claims for first-party no-fault benefits which had been submitted to ATIC by the various providers named in that action who had treated Cordero as a result of the October 23, 2011 accident. By order dated May 22, 2013, the Supreme Court (Julia I. Rodriguez, J.) granted ATIC’s motion for entry of a declaratory judgment, on default, declaring that ATIC was not obligated to pay any claims for no-fault benefits submitted by the parties named as defendants in the declaratory judgment action.

In August 2013, plaintiff herein moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint, contending that this action was barred by virtue of the May 22, 2013 order of the Supreme Court. Plaintiff did not oppose defendant’s cross motion. By order entered April 29, 2014, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.

Based upon the May 22, 2013 order of the Supreme Court, this action is barred under the doctrine of res judicata (see Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U] [App Term, 2d, 11th & 13th Jud Dists 2015]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 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, 11th & 13th Jud Dists 2012]). To hold otherwise could result in a [*2]judgment in this action which would destroy or impair rights established by the Supreme Court’s order in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U]). Moreover, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Matter of Allstate Ins. Co. v Williams, 29 AD3d 688 [2006]; Matter of Eagle Ins. Co. v Facey, 272 AD2d 399 [2000]; Vital Meridian Acupuncture, P.C. v Republic W. Ins. Co., 46 Misc 3d 147[A], 2015 NY Slip Op 50222[U]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U]).

Accordingly, the order of the Civil Court is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Decided on December 2, 2015

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 (Ulysses Bernard Leverett, J.), entered February 20, 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 the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remaining causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s third cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (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 this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the remaining causes of action on that ground, defendant was entitled to summary judgment dismissing the remaining causes of action. In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled EUOs, which alleged nonappearance was another basis for the denial of these claims.

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action is denied.

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

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Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 2, 2015

APPEARANCES OF COUNSEL

Gary Tsirelman P.C., Brooklyn (David M. Gottlieb of counsel), for appellant.

Law Office of Printz & Goldstein, Woodbury (Lawrence J. Chanice of counsel), for respondent.

Ordered that the order is reversed, without costs, and plaintiff’s motion to restore the action to the trial calendar is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on May 19, 2008. A notation on the New York State Unified Court System eCourts public website indicates that the matter was “settled” on March 9, 2009. Approximately 31/2 years later, plaintiff, asserting that the case was mistakenly marked “settled,” moved to restore the action to the trial calendar and for an order exempting plaintiff from filing another notice of trial. Defendant opposed plaintiff’s motion and cross-moved to dismiss the complaint based upon plaintiff’s failure to proffer a reasonable excuse for not timely moving to restore the case. Plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion as untimely, finding that restoration of the case would prejudice defendant.

In support of plaintiff’s motion, its attorney stated that her review of the file shows that there had been no settlement, whereas defendant’s attorney asserts that the case was dismissed because the same causes of action had been settled with previous counsel. While the eCourts website, of which we may take judicial notice (see Matter of Cento Props. Co. v Assessor, 71 AD3d 1015 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]), states that this matter was settled on March 9, 2009, such a notation on the website “does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104” (Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2006]; see Johnson v Four G’s Truck Rental, 244 AD2d 319 [1997]). Furthermore, as there is no indication that the{**50 Misc 3d at 106} purported settlement was reduced to a writing and signed by the parties, or made in open court, an enforceable settlement agreement cannot be determined from the record before us (see CPLR 2104; Stuart Realty Co. v Rye Country Store, 296 AD2d 455 [2002]). Since there is no proof that an enforceable settlement was ever reached, plaintiff’s motion should have been granted. We note that, contrary to the determination of the Civil Court, plaintiff was not obligated to demonstrate in its motion, among other things, lack of prejudice to defendant, since the case had been marked “settled” (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413[*2][2004]), whether or not erroneously. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and plaintiff’s motion to restore the action to the trial calendar is granted.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.; op 39 Misc 3d 1216[A], 2013 NY Slip Op 50633[U]), entered March 7, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

On June 28, 2008, plaintiff’s assignor was injured in an automobile accident. On July 14, 2008, plaintiff’s assignor assigned her right to be reimbursed for first-party no-fault benefits to plaintiff. On September 29, 2008, defendant received a claim from plaintiff for services rendered to plaintiff’s assignor between August 13, 2008 and September 9, 2008. By letter dated October 6, 2008, defendant notified plaintiff that the claim was delayed pending an examination under oath (EUO) of plaintiff’s assignor, which had previously been scheduled for October 8, 2008. On October 27, 2008, defendant received another claim from plaintiff for services rendered to plaintiff’s assignor between September 8, 2008 and October 7, 2008. On October 27, 2008, defendant notified plaintiff that the claim was delayed pending an EUO of plaintiff’s assignor scheduled for November 7, 2008. Defendant also requested other documentary verification. By letter dated December 23, 2008, defendant sent a letter to plaintiff’s assignor advising her that defendant had voided ab initio the automobile insurance policy which she had obtained due to her having made material misrepresentations as to where the vehicle would be kept. On December 29, 2008, defendant denied both of the claims which are at issue in this action on the ground there was no coverage because, by the December 23, 2008 letter, defendant had rescinded the policy ab initio. On or about February 17, 2009, defendant commenced an action in Virginia against the assignor to void the insurance policy ab initio due to the assignor’s material misrepresentations. On August 18, 2009, the assignor and defendant agreed to the entry of a “dismissal order” in the Virginia action which voided the insurance policy ab initio.

On July 29, 2010, plaintiff commenced this action to recover assigned first-party no-fault benefits upon the claims which plaintiff had submitted and defendant had received. Subsequently, defendant moved for summary judgment dismissing the complaint based upon the Virginia court’s August 18, 2009 order rescinding plaintiff’s assignor’s underlying automobile insurance policy. By order entered March 7, 2013, the Civil Court granted defendant’s motion.

In support of its motion, defendant submitted, among other things, the February 2009 complaint in the Virginia action and a copy of the “dismissal order” in the Virginia action, dated August 18, 2009, signed by counsel for both parties, which declared the subject insurance policy to be void ab initio.

On appeal, plaintiff argues that the Virginia “dismissal order” should not have been considered by the Civil Court, as the order was not certified. Plaintiff further argues that, in any event, it is not bound by the order, since it was neither a party to, nor in privity with a party to, the Virginia action.

We agree with plaintiff’s contention that, since it was not a party to the Virginia action, it is not bound by the “dismissal order” rendered therein, as it did not have a full and fair opportunity to defend its interests in that action. Although plaintiff’s assignor was a party to the Virginia action, defendant failed to show that plaintiff was in privity with the assignor at the time the Virginia action was commenced (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Quality Psychological Servs. v Infinity Prop. & Cas. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50645[U] [App Term, 1st Dept 2015]; see also Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant was not entitled to judgment as a matter of law.

We reach no other issue.

Accordingly, the order of the Civil Court is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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