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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 7, 2011. The judgment, entered pursuant to a decision of the same court dated October 14, 2010, insofar as appealed from, after a nonjury trial, dismissed the complaint except for so much thereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated October 14, 2010 is deemed a premature notice of appeal from the judgment entered February 7, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of defendant on most of plaintiff’s claims, and a judgment was entered dismissing the complaint except for so muchthereof as sought to recover the principal sum of $330 for a massager and a Thermophore.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff raises only evidentiary objections.

Contrary to plaintiff’s arguments, the Civil Court properly overruled plaintiff’s hearsay objection to defendant’s doctor’s testimony as to the issue of medical necessity (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2012] Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contentions lack merit (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013] see also Eagle Surgical Supply, Inc. v GEICO Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50854[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014

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

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated November 13, 2012. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to the determination of the District Court, the affidavit submitted by defendant in support of its motion for summary judgment established 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 forms, which denied the two claims at issue on the ground of lack of medical necessity. The conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided (see Zuckerman v City of New York, 49 NY2d 557 [1980] Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Defendant’s remaining contention lacks merit.

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

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 27, 2014

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 (Dawn Jimenez Salta, J.), entered February 6, 2012. The order granted defendant’s motion to dismiss 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, the record indicates that, subsequent to the provision of acupuncture services by plaintiff to its assignor, defendant Kemper Insurance Company (Kemper) commenced a declaratory judgment action in the Supreme Court, New York County, against plaintiff, 12 other providers and the injured assignor, alleging that the providers had breached the terms of the insurance policy by failing to appear for scheduled examinations under oath. On September 4, 2009, several months after the declaratory judgment action had been filed, plaintiff commenced the present action in the Civil Court. In a judgment entered on default on June 22, 2010, the Supreme Court declared that plaintiff and the other named providers were not entitled to recover no-fault benefits arising out of the accident in question. Kemper thereafter moved in the Civil Court to dismiss plaintiff’s complaint, contending that the instant action is barred by virtue of the declaratory judgment. Plaintiff appeals from an order of the Civil Court which granted Kemper’s motion and dismissed the action.

In light of the declaratory judgment, the present action 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, 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] SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929] S.Z. Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur. [*2]
Decision Date: January 10, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered March 15, 2011, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Order (Fernando Tapia, J.), entered March 15, 2011, reversed, with $10 costs, and matter remanded for a new trial.

Plaintiff sues to recover first-party no-fault benefits for chiropractic services rendered to the insured assignor in the form of manipulation under anesthesia (MUA). At the commencement of trial, the parties stipulated in open court to “the credentials [and] the expertise” of defendant’s chiropractor, Dr. Kevin Portnoy, D.C. However, during Dr. Portnoy’s redirect testimony, the trial court precluded the witness from testifying as an expert on MUA procedures based on his acknowledgment that he was not certified to perform MUA. The Court thereupon directed a verdict in favor of plaintiff.

On defendant’s appeal, we reverse and order a new trial. Based upon the parties’ open court stipulation, Dr. Portnoy was qualified as a chiropractic expert. Thus, he need not have been certified as an MUA specialist to offer an opinion as to the medical necessity of the MUA procedures here at issue (see Matter of Solano v City of Mount Vernon, 108 AD3d 676, 677 [2013]). His lack of certification in this area goes to the weight to be accorded his testimony, not its admissibility (see Borawski v Huang, 34 AD3d 409, 410 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 24, 2013

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

Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated April 16, 2012. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through sixth and ninth and tenth causes of action of the complaint are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order as denied its motion for summary judgment dismissing the complaint.

With respect to the first through sixth and ninth and tenth causes of action of the complaint, we find that the affidavits submitted by defendant established that the examination under oath (EUO) notices had been timely sent to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]), and that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The District Court correctly found that defendant demonstrated that the claims underlying these causes of action had been timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) based on plaintiff’s nonappearance at the EUOs. In light of the foregoing, since plaintiff’s appearance at the EUOs “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), the burden shifted to plaintiff to rebut defendant’s prima facie showing. However, as the District Court found, plaintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]), defendant is entitled to summary judgment dismissing the first through sixth and ninth and tenth causes of [*2]action.

With respect to the seventh and eighth causes of action, while it is undisputed that defendant paid the claim underlying these causes of action, defendant failed to establish that its payment was timely. Consequently, the branches of defendant’s motion seeking dismissal of these causes of action were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through sixth and ninth and tenth causes of action of the complaint are granted.

Marano, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: December 20, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered on or about July 19, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered July 19, 2012, affirmed, with $10 costs.

We agree that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the diagnostic tests underlying plaintiff’s first-party no-fault claim.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 13, 2013

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 (Pamela L. Fisher, J.), entered January 5, 2012. The order granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, which had been determined by an order of the same court entered February 15, 2011, and, upon renewal, in effect, vacated the February 15, 2011 order and thereupon granted defendant’s motion to dismiss the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue and renew its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8). The prior motion, which sought dismissal on the ground that the Civil Court lacked personal jurisdiction over defendant, had been denied by order entered February 15, 2011 with leave to renew upon proper papers, as a certificate of conformity had been lacking. In support of its motion for leave to reargue and renew, defendant submitted a certificate of conformity, which accompanied an affidavit of defendant’s litigation specialist. The litigation specialist alleged, among other things, that defendant maintained offices in Atlanta, Georgia and that defendant is not authorized to conduct business in New York. He further stated that defendant does not issue or deliver contracts of insurance to New York State residents or corporations authorized to do business in New York and has never had any employees either located in or working to solicit business in New York. Plaintiff argued in opposition that the certificate of conformity was inadmissible and that defendant had failed to establish that the court lacked personal jurisdiction over defendant. Plaintiff additionally asserted that it was entitled to discovery to determine whether there was proper jurisdiction. Plaintiff appeals from an order of the Civil Court entered January 5, 2012 which granted the branch of defendant’s motion seeking leave to renew its prior motion to dismiss the complaint, and, upon renewal, in effect, vacated the prior order entered February 15, 2011 and thereupon granted defendant’s motion to dismiss the complaint.

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375, 381 n 5 [2007]). Here, defendant made a prima facie showing that personal jurisdiction had not been obtained [*2]over it based on any of the acts set forth in the Civil Court’s long-arm jurisdiction statute (CCA 404 [a]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish that defendant either transacted business, contracted to supply goods or services, committed a tortious act, or used or possessed any real property within the City of New York (CCA 404 [a]; see Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc., 36 Misc 3d 150[A], 2012 NY Slip Op 51663[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). The affirmation of plaintiff’s attorney offered in opposition to defendant’s motion failed to demonstrate that he possessed personal knowledge of the facts to show that some basis for jurisdiction existed. Furthermore, plaintiff did not establish that it was entitled to discovery to determine whether there was proper jurisdiction (see CPLR 3211 [f]; Viviane Etienne Med. Care., P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since plaintiff failed to show that defendant had contacts with the City of New York, the Civil Court properly dismissed the complaint.

Accordingly, the order is affirmed.

Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 12, 2013

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

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 26, 2011. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the District Court as denied its motion for summary judgment.

The record shows that the District Court considered both defendant’s proof that defendant had not received requested verification from plaintiff and an affidavit from plaintiff which asserts that material responsive to the verification request had been sent to defendant. Thus, plaintiff failed to establish the absence of a material issue of fact. As a result, the District Court properly determined that plaintiff was not entitled to summary judgment. We decline defendant’s request to search the record and award it summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is affirmed.Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: December 12, 2013

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 (William A. Viscovich, J.), entered March 1, 2012, deemed from a judgment of the same court entered March 29, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 2012 order granting defendant’s motion to dismiss the complaint for failure to state a cause of action, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied.

In this action to recover first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]). The complaint alleged that defendant had issued an insurance policy which covered plaintiff’s vehicle and provided for payment of no-fault benefits. The complaint set forth the number of the applicable policy and stated that plaintiff had timely notified defendant of the accident, but defendant had failed to pay the bills. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), arguing that the complaint was insufficient to state a claim of indebtedness, and plaintiff opposed the motion. By order entered March 1, 2012, the Civil Court granted defendant’s motion. Plaintiff’s appeal from the order is deemed to be from a judgment, which was subsequently entered, dismissing the complaint (see CPLR 5501 [c]).

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The allegations contained in the complaint should be accepted as true and the court must determine whether such facts fit any cognizable legal theory (see Morales v Copy Right, Inc., 28 AD3d 440 [2006]; Golden Gate Rehabilitation & Health Care Ctr., LLC v Giordano, 22 Misc 3d 136[A], 2009 NY Slip Op 50292[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Upon a review of the complaint in this case, we find that, contrary to the determination of the Civil Court, the complaint stated a cognizable cause of action and was sufficient to give defendant notice of the transactions intended to be proved.

Accordingly, the judgment is reversed, the order entered March 1, 2012 granting defendant’s motion to dismiss the complaint is vacated and defendant’s motion is denied. [*2]

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 11, 2013

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 (Pamela L. Fisher, J.), entered July 8, 2011. The order denied defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to dismiss the complaint is granted.

Plaintiff commenced this action in April 2006 to recover assigned first-party no-fault benefits. Defendant defaulted. More than a year later, plaintiff moved for leave to enter a default judgment. By order dated July 13, 2007, the Civil Court granted plaintiff’s motion on defendant’s default. Subsequently, defendant moved pursuant to CPLR 5015 (a) (3), in effect, to vacate the July 13, 2007 order and the default judgment and to dismiss the complaint pursuant to CPLR 3215 (c). The Civil Court denied the motion and defendant appeals.

Where, as here, a plaintiff fails to initiate proceedings for the entry of judgment within one year after a default, the plaintiff is obligated to offer a reasonable excuse for its delay in moving for leave to enter a default judgment, and must demonstrate that
it has a meritorious cause of action. In the event the plaintiff fails to meet its burden, the court, upon its own initiative or on motion, “shall dismiss the complaint as abandoned” (CPLR 3215 [c]; see e.g. County of Nassau v Chmela, 45 AD3d 722 [2007]; Jones v Corley, 35 AD3d 381 [2006]; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625 [2005]). As plaintiff failed to offer any excuse for its delay in moving for leave to enter a default judgment, the dismissal of the complaint was required pursuant to CPLR 3215 (c), and it was improper for the court to have granted plaintiff’s motion.

While defendant failed to demonstrate that the default judgment should have been vacated pursuant to CPLR 5015 (a) (3), under the circumstances presented, we exercise our inherent discretionary power to vacate judgments in situations that warrant vacatur but were not specifically codified in CPLR 5015 (a).

Accordingly, the order is reversed, and defendant’s motion, in effect, to vacate a default judgment and the underlying order granting plaintiff’s motion to enter a default judgment, and to [*2]dismiss the complaint is granted.

Rios, J.P., Pesce and Solomon, JJ, concur.
Decision Date: December 11, 2013