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Supreme Court, Appellate Term, First Department, March 12, 2013

APPEARANCES OF COUNSEL

Picciano & Scahill, P.C., Westbury (Albert J. Galatan of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City (Steven J. Neuwirth of counsel), for respondent.

{**39 Misc 3d at 16} OPINION OF THE COURT

Per Curiam.

Order, entered April 17, 2012, affirmed, without costs.

A related Supreme Court action brought by the defendant insurer against various medical providers resulted in a declaration that defendant was entitled to deny all no-fault claims arising from injuries allegedly sustained by plaintiff’s assignor (Cuffie) in the underlying July 2, 2008 motor vehicle accident. Since the plaintiff medical supplies provider was not a party to the declaratory judgment action it is not bound by Supreme Court’s determination, as it did not have a full and fair opportunity to contest the issues in that proceeding (see Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). Although plaintiff’s assignor was a named party in the prior action, plaintiff cannot be deemed to be in privity with its assignor, since the declaratory judgment action was commenced after the assignment (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]).

Schoenfeld, J. (concurring). In light of the Court of Appeals’ holding in Gramatan Home Invs. Corp. v Lopez (46 NY2d 481 [1979]), I join my colleagues in voting to affirm the order denying summary judgment to the defendant insurer. Considerations of due process prohibit binding a party to the result of an action in which that party has not been given an opportunity to be heard. I write separately to [*2]acknowledge that the outcome reached today does not serve to promote the purposes of this State’s No-Fault Law to provide a less costly, more efficient automobile accident reparation system and to ease court congestion (see Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]).

As (now retired) Justice Golia properly recognized in closely analogous circumstances, no-fault actions do not fit squarely within the Gramatan rule, given “the unique nature and reality of the assignment of claims for first-party benefits under the Insurance{**39 Misc 3d at 17} Law and the no-fault regulations of this State” (Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67, 69 [2010 dissenting op]). That being so, and in view of the prior Supreme Court judgment declaring that plaintiff’s assignor and the assignee providers named as defendants in that action “are not entitled to first-party benefits” stemming from the subject motor vehicle accident due to the assignor’s “material misrepresentations in the procurement of the insurance policy,” it is not unreasonable to say that the denial of summary judgment dismissing this assignee provider’s claim tends to exalt form over substance, delaying the seemingly inevitable dismissal of the claim until after trial. Nonetheless, on balance, I feel compelled to adhere to the rule set forth in Gramatan without a signal to the contrary from a higher appellate authority. Lastly, and parenthetically, it is noted that in the event the plaintiff assignee does not ultimately succeed against defendant on the no-fault claim, plaintiff could seek redress against the assignor under the clear terms of the assignment of benefits form.

Lowe, III, P.J., and Torres, J., concur; Schoenfeld, J., concurs in a separate opinion.

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 (Carmen R. Velasquez, J.), entered March 1, 2011, deemed from a judgment of the same court entered March 30, 2011 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 1, 2011 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,259.69.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims for reimbursement of assigned first-party no-fault benefits since plaintiff’s assignor had, prior to this action, elected to arbitrate claims for no-fault benefits which he had not assigned and which arose out of the same accident as was involved in the instant action. Consequently, defendant argued that arbitration was the only proper forum for plaintiff to seek recovery of its assigned no-fault claims. Plaintiff opposed defendant’s motion, contending that it was not precluded from litigating the instant action since its assignor had assigned his no-fault benefits to it prior to the commencement of the arbitration of the assignor’s claims and since the plaintiff herein was not a party to that arbitration. Plaintiff also cross-moved for summary judgment. By order entered March 1, 2011, the Civil Court denied defendant’s motion, finding that the motion papers established that the assignment of benefits predated the assignor’s election to arbitrate and that, therefore, the Roggio case was not applicable, and granted plaintiff’s cross motion. Defendant appeals from the March 1, 2011 order. A judgment was subsequently entered awarding plaintiff the principal sum of $2,259.69, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The Civil Court properly denied defendant’s motion. As the Civil Court correctly noted, [*2]since plaintiff’s assignor had executed the assignment of benefits to plaintiff prior to his commencement of his own arbitration, the holding in Roggio (66 NY2d 260) does not apply here and, thus, plaintiff was not precluded from litigating the claims at issue in this action (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]).

However, the Civil Court should have denied plaintiff’s cross motion for summary judgment. Plaintiff failed to establish its prima facie entitlement to summary judgment since the affidavit of plaintiff’s billing supervisor, which was missing several paragraphs, was insufficient to establish that the documents annexed to plaintiff’s motion papers constituted proof of the fact and the amount of loss sustained (see CPLR 4518 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 31 Misc 3d 21 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed, so much of the order entered March 1, 2011 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.

Weston, J.P., Aliotta and Solomon, JJ., concur.
Decision Date: March 05, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Donald A. Miles, J.), entered July 20, 2011, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Donald A. Miles, J.), entered July 20, 2011, modified to dismiss plaintiff’s first through sixth, and ninth trough twelfth causes of action; as modified, order affirmed, without costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the no-fault claims set forth in the first through sixth, and ninth through twelfth causes of action, by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: March 01, 2013

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), entered December 10, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Ben R. Barbato, J.), entered December 10, 2010, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claim based on a chiropractor’s sworn peer review report, which set forth a factual basis and medical rationale for the chiropractor’s stated conclusion that the underlying MRI tests lacked medical necessity. In opposition, plaintiff failed to raise a triable issue. The unsworn letter report submitted by plaintiff from the assignor’s treating chiropractor was without probative value (see CPLR 2106; Pierson v Edwards, 77 AD3d 642 [2010]), and, even if considered, the conclusory findings set forth therein were insufficient to withstand summary judgment (see CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 21, 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 (Peter Paul Sweeney, J.), entered November 1, 2010, deemed from a judgment of the same court entered December 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 1, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered November 2, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

We find that, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its [*2]motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). However, plaintiff correctly argues that defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Defendant’s cross motion papers failed to establish that its time to pay or deny plaintiff’s claim had been tolled, as defendant did not demonstrate, as a matter of law, that the letters scheduling the independent medical examination of plaintiff’s assignor 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]).

Accordingly, the judgment is reversed, so much of the order entered November 2, 2010 as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated and defendant’s cross motion is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 20, 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 (Katherine A. Levine, J.), entered May 16, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and, upon denying plaintiff’s motion for summary judgment, found that plaintiff had established its prima facie case.

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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and the cross motion, but found that plaintiff had established its prima facie case; that defendant had demonstrated that it had timely and properly denied plaintiff’s claim; and that the sole issue for trial was the medical necessity of the supplies provided to plaintiff’s assignor. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint and as found that plaintiff had [*2]established its prima facie case.

In support of its cross motion, defendant submitted, among other things, affidavits and peer review reports by its chiropractors which set forth a factual basis and medical rationale for the chiropractors’ determinations that there was a lack of medical necessity for the supplies at issue. Defendant’s prima facie showing that the supplies were not medically necessary was unrebutted by plaintiff.

As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is 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 & 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 Solomon, JJ., concur.
Decision Date: February 19, 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 13, 2011. The order, insofar as appealed from as limited by the brief, in effect, 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, in effect, denied the motions but found that plaintiff had established its prima facie entitlement to summary judgment, that defendant had “established timely and proper mailing of its denial(s),” and that “[t]he sole issue for trial is the defense of lack of medical necessity.” Defendant appeals, as limited by its brief, from so much of the order as, in effect, denied its cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmed medical report by the doctor who had performed the independent medical examination (IME) on defendant’s behalf, which set forth a factual basis and medical rationale for the doctor’s determination that there was [*2]a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, defendant’s cross motion for summary judgment dismissing the complaint is 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 & 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]).

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 Solomon, JJ., concur.
Decision Date: February 19, 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 (Devin P. Cohen, J.), entered April 4, 2011. The order, insofar as appealed from, granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action. The appeal is deemed to be from a judgment of the same court entered May 5, 2011 awarding plaintiff the principal sum of $1,368 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, with $30 costs, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the bills at issue had been timely denied based upon plaintiff’s assignor’s failure to appear for independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the first cause of action [*2]and granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action. The court implicitly found that defendant had demonstrated that it had timely and properly mailed initial and follow-up IME scheduling letters and that plaintiff’s assignor had not appeared for the scheduled IMEs. However, as to the second and third causes of action, the court found that defendant’s denials were untimely because they had been mailed more than 45 days after plaintiff’s assignor had violated a policy condition by failing to appear for the second scheduled IME. On appeal, defendant argues that the branches of its motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Defendant demonstrated that it had timely mailed both initial and follow-up IME requests and initial and follow-up requests for written verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]), thereby tolling its time to pay or deny the claims at issue. While plaintiff’s assignor failed to appear for IMEs on January 16, 2009 and February 2, 2009, defendant did not receive the requested written verification until February 19, 2009. As defendant denied the claims within 30 days of its receipt of the requested written verification (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]), the claims at issue were timely denied on the ground that plaintiff’s assignor had failed to appear for properly scheduled IMEs, regardless of the fact that the last nonappearance had occurred more than 45 days prior to the issuance of the denial (see Atlantic Radiology Imaging, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 154[A], 2012 NY Slip Op 51725[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), defendant was not precluded from raising the defense, and, as plaintiff failed to raise a triable issue of fact, the branches of defendant’s motion seeking summary judgment dismissing the second and third causes of action should have been granted.

Accordingly, the judgment is reversed, so much of the April 4, 2011 order as granted the branches of plaintiff’s cross motion seeking summary judgment on the second and third causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing those causes of action is vacated, those branches of defendant’s motion are granted and those branches of plaintiff’s cross motion are denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Terrence C. O’Connor, J.), entered May 27, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

The affidavits submitted by defendant established that defendant had 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]) its initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). The mere denial by plaintiff’s [*2]office manager of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Triangle R, Inc. v Clarendon Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52159[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s motion for summary judgment dismissing the complaint should have been granted, as defendant’s time to pay or deny the claims had not begun to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; 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]).

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

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 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 (Dawn Jiminez Salta, J.), entered March 30, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment is denied; as so modified, 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 granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s argument on appeal, defendant’s denial of claim forms were sufficient to preserve defendant’s fee schedule defense (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, there are triable issues of fact as to whether defendant has fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Consequently, on this record, summary judgment in favor of defendant is not warranted (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant’s motion for summary [*2]judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013