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 (Robin Kelly Sheares, J.), entered October 12, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion to compel discovery.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff had failed to comply with discovery demands (see CPLR 3212 [f]), and cross-moved, pursuant to CPLR 3126, to compel plaintiff to respond to discovery demands and, pursuant to CPLR 3101 and 3106, to compel plaintiff and its treating physician to appear for examinations before trial. The Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion, finding that in light of plaintiff’s submissions to defendant, including the treating physician’s W-2 form, there was no basis to conclude that additional discovery would lead to relevant evidence.
Contrary to defendant’s assertion on appeal, plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 [*2]AD3d 1168 [2010]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Defendant failed to establish that it had timely denied the claim and, thus, it is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]), including the defense upon which it now relies, that plaintiff’s treating physician was an independent contractor and not an employee of plaintiff (see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 535 [2012]). Moreover, even if defendant had timely denied the claim, it would be precluded from asserting an independent contractor defense by virtue of defendant’s failure to specify this ground for denial in its denial of claim form (see id.; see also Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). Consequently, defendant failed to show that facts essential to justify opposition may exist but cannot be stated and, thus, did not establish any basis to deny plaintiff’s motion pursuant to CPLR 3212 (f).

Accordingly, the order is affirmed, albeit for reasons other than those stated by the Civil Court.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 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 (Nancy M. Bannon, J.), entered May 6, 2011. The order, insofar as appealed from, granted defendant’s motion pursuant to CPLR 3126 to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 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 Civil Court as granted defendant’s motion to dismiss the complaint pursuant to CPLR 3126.

In support of its motion, defendant set forth detailed and specific reasons for its belief that plaintiff may be ineligible to recover assigned first-party no-fault benefits as a fraudulently incorporated professional corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), and established that it had sought disclosure related to that defense. Defendant further established that plaintiff had failed to comply with a so- ordered stipulation and two court orders wherein plaintiff had been directed to provide the disclosure. ” The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court’ ” (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012] and Giano [*2]v Ioannou, 78 AD3d 768, 770 [2010], quoting Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]; see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the present case, plaintiff’s willful and contumacious conduct can be inferred from its repeated refusal to fully comply with defendant’s discovery requests, even after agreeing to do so by so-ordered stipulation and being directed to do so by court orders, and the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]). We note that plaintiff’s motion to stay discovery was untimely. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 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 April 18, 2011. 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. The court found that defendant had demonstrated that there was a lack of coverage due to the exhaustion of the limits of the applicable insurance policy.

Defendant sufficiently established that the relevant policy is a Delaware insurance policy, which was issued to a Delaware resident for an automobile registered in Delaware. Furthermore, the NF-2 form, which was signed by plaintiff’s assignor and proffered by defendant as an exhibit, revealed that the accident had occurred in Delaware. In view of Delaware’s significant contacts with the contract (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), the application of Delaware law to the substantive issues is proper (see Matter of Allstate Ins. Co. [*2][Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]). Delaware law requires minimum compensation for, among other things, medical expenses in the amount of $15,000 for one person in any one accident (see 21 Del. C. § 2118 [a] [2] [b]; 21 Del. C. § 2902 [b] [2]; Wygant v Geico Gen., 27 A3d 553 [2011] [table; text at 2011 WL 3586488 Del Sup Ct 2011]). While a Delaware policy may provide for higher limits of compensation (see 18 Del. Admin. Code 603-6.2), the policy in question provided for a $15,000 coverage limit for each person for bodily injury. “We bind parties to the plain meaning of clear and unequivocal language in insurance contracts lest we create a new contract with rights, liabilities, and duties to which the parties did not assent” (Wygant v Geico Gen., 27 A3d 553 [table; text at 2011 WL 3586488, at *1).

As defendant has made a prima facie showing, through the affidavits of its claims and underwriting employees, and through the submission of documentary evidence, that the policy had a $15,000 medical expenses coverage limit and that it had been exhausted (see New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]), defendant established its prima facie entitlement to judgment as a matter of law. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion. The parties’ remaining contentions either lack merit or are not properly before this court because they are raised for the first time on appeal.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013

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 (Carmen R. Velasquez, J.), entered November 8, 2010. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment 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. After the trial, the Civil Court found that defendant’s doctor’s testimony had demonstrated that the supplies in question were not medically necessary and that plaintiff had failed to rebut this showing. Subsequently, a judgment was entered dismissing the complaint.

On appeal, plaintiff does not challenge the substance of defendant’s expert witness’s testimony. Instead, plaintiff objects to the admission of the peer review reports and the underlying medical records. At a trial on the issue of medical necessity, a peer review report is not admissible to prove the lack of medical necessity. Rather, that issue is to be resolved based upon the testimony given by the medical experts (see A-Quality Med. Supply v GEICO Gen. Ins. [*2]Co., 39 Misc 3d 24 [App Term, 2d, 11th & 13th Jud Dists 2013]). In the case at bar, defendant properly established the lack of medical necessity at trial through the testimony of its expert witness. Thus, plaintiff’s contention that reversal is warranted because the court admitted the peer review report into evidence lacks merit.

The remainder of plaintiff’s contentions similarly lack merit (see Park Slope Med. & Surg. Supply, Inc. v Travelers, 37 Misc 3d 19, 22-23 [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]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 27, 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 (Robin S. Garson, J.), entered June 22, 2011. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment.

For the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. (39 Misc 3d 136[A], 2013 NY Slip Op 50595[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 25, 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 (Robin Kelly Sheares, J.), dated June 3, 2011. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment.

For the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. (39 Misc 3d 136[A], 2013 NY Slip Op 50595[U] [App Term, 2d, 11th & 13th Jud Dists 2013]), the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 25, 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 (Nancy M. Bannon, J.), entered May 13, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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

Defendant’s cross motion papers established that defendant had timely denied the claim at issue (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]) based on a lack of medical necessity. In addition, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. As defendant’s showing that the services were not medically necessary was not rebutted by plaintiff, defendant’s cross motion should have been granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & [*2]13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). In light of the foregoing, we reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 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 (Leslie J. Purificacion, J.), entered June 9, 2011. 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.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant submitted an affidavit by an employee of the entity which had scheduled, on behalf of defendant, the independent medical examinations (IMEs) involved herein. The affidavit 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 [*2][App Term, 2d & 11th Jud Dists 2007]). In addition, the affidavits submitted by defendant demonstrated that its denial of claim forms, which denied the claims in question based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affirmation by its examining physician and affidavits by its examining chiropractor, psychologist and acupuncturist, respectively, each of which stated that plaintiff’s assignor had failed to appear for the scheduled IMEs. As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Inasmuch as, in opposition to the motion, plaintiff submitted only an affirmation of counsel, which affirmation failed to raise a triable issue of fact, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.

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

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 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 (Carolyn E. Wade, J.), entered April 11, 2011. 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied plaintiff’s claims based upon plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

Contrary to plaintiff’s sole argument on appeal with respect to defendant’s cross motion, defendant properly demonstrated that it had mailed the EUO scheduling letters and denials at issue (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]). As plaintiff raises no other argument with respect to the granting of [*2]defendant’s cross motion, the order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 17, 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 (Rudolph E. Greco, Jr., J.), entered April 7, 2010. The order, insofar as appealed from, (1) upon, in effect, granting the branches of defendant’s motion seeking leave to reargue or, in the alternative, to renew its prior motion to vacate an order of the same court (William A. Viscovich, J.) entered December 19, 2008, which had granted plaintiff’s unopposed motion for leave to enter a default judgment, adhered to the prior determination denying such vacatur, and (2) upon, in effect, granting the branch of defendant’s motion seeking leave to reargue its prior motion to dismiss the complaint pursuant to CPLR 3211 (a) (8), adhered to the prior determination denying the motion.

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 obtained leave to enter a default judgment against defendant pursuant to an order of the Civil Court (William A. Viscovich, J.) entered December 19, 2008. Defendant then moved pursuant to CPLR 5015 (a) (1) to vacate the order and permit it to defend the action. Two months later, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8). In support of the [*2]latter motion, defendant alleged, among other things, that plaintiff had failed to serve process upon defendant and, instead, had mistakenly served defendant’s third-party claims administrator. By order entered February 2, 2010, the Civil Court (Rudolph E. Greco, Jr., J.) denied both of defendant’s motions.

Thereafter, defendant moved for 1) leave to reargue or, in the alternative, to renew its prior motion to vacate the December 19, 2008 order and, upon reargument or, in the alternative, renewal, to vacate said order, and 2) leave to reargue its prior motion to dismiss the complaint and, upon reargument, to dismiss the complaint.

By order entered April 7, 2010, the Civil Court (Rudolph E. Greco, Jr., J.), upon, in effect, granting defendant leave to reargue and renew its prior motion to vacate the December 19, 2008 order, adhered to its prior determination denying such vacatur. Additionally, the court, upon, in effect, granting defendant leave to reargue its prior motion to dismiss the complaint, adhered to its prior determination denying the motion.

The Civil Court properly denied the branch of defendant’s motion seeking, upon reargument, to dismiss the complaint. A defendant’s voluntary participation in litigation in which the lack of jurisdiction could be, but was not, raised constitutes a submission to the jurisdiction of the courts (see generally Gager v White, 53 NY2d 475, 488 [1981]; Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In the instant case, defendant submitted to the jurisdiction of the court when, in its initial motion, it sought to vacate the December 19, 2008 order, and permit it to “defend this action on the merits,” rather than seeking to dismiss the complaint for lack of jurisdiction (see Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U]).

The Civil Court also properly denied the branch of defendant’s motion seeking, upon reargument, to vacate the December 19, 2008 order pursuant to CPLR 5015 (a) (1). A movant seeking to vacate a default based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]; Lane v Smith, 84 AD3d 746 [2011]; Solomon v Ramlall, 18 AD3d 461 [2005]). Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence (see A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]).

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

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: June 17, 2013