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 (Maureen A. Healy, J.), entered August 20, 2010, deemed from a judgment of the same court entered September 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 20, 2010 order granting defendant’s motion for summary judgment and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $10 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 its cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s sole contention, defendant’s denial of claim forms and the accompanying explanation of benefit forms were sufficient to apprise plaintiff that defendant was partially paying and partially denying its bills on the ground that the unpaid portion exceeded the amount permitted by the workers’ compensation fee schedule. Accordingly, the order is affirmed (see generally Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012

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 March 10, 2010, deemed from a judgment of the same court entered May 25, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 10, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $10 costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered March 10, 2010, granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its motion, defendant submitted affidavits from the president of the company retained by defendant to schedule independent medical examinations (IMEs). The affidavits established that the IME scheduling letters had been timely mailed pursuant to the company’s standard office practices and procedures (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 submitted affirmations from the orthopedist who was to perform the IMEs, which established that plaintiff’s assignors had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, an affidavit executed by defendant’s claims examiner demonstrated that the denial of claim forms, which denied plaintiff’s claims based on plaintiff’s assignors’ nonappearance at 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). Since the appearance of an assignor at a duly scheduled IME is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), defendant’s motion for summary judgment dismissing the complaint was properly granted. Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 25, 2012

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 (Jodi Orlow, J.), entered May 17, 2010, deemed from a judgment of the same court entered June 14, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 17, 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 affirmed, with $10 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 its 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]).

Contrary to plaintiff’s contention, the affirmed peer review reports annexed to defendant’s cross motion each set forth a factual basis and medical rationale for the doctors’ determination that there was a lack of medical necessity for the services rendered to plaintiff’s assignors. As plaintiff’s remaining contentions either lack merit or are academic, the judgment is affirmed (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]).

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012

[*1]

Supreme Court, Appellate Term, First Department, April 13, 2012

APPEARANCES OF COUNSEL

Jaffe & Koumourdas, LLP, New York City (Ariel S. Lichterman of counsel), for appellant. Gina Gleicher and Leon Kucherovsky, New York City, for respondent.

{**35 Misc 3d at 67} OPINION OF THE COURT

Per Curiam.

Order entered April 9, 2010, modified by granting defendant’s motion to the extent of reducing the amount of the judgment entered against it to the aggregate sum of $1,251; as modified, order affirmed, without costs.

The parties agree that the underlying no-fault first-party action was validly settled, but join issue as to the intended amount of the settlement. The facts leading up to the settlement are undisputed and may be briefly stated as follows: Plaintiff, through counsel, drafted and presented a proposed settlement agreement, dated October 21, 2008, which set forth all material terms of the settlement and provided, in paragraph 4, that “[t]his case is not settled unless this stipulation is signed by a representative of defendant and faxed back to [plaintiff’s attorney].” Upon receipt of plaintiff’s proposal, defense counsel made and initialed several handwritten changes to paragraph 2 of the document—addressing the consequences of a payment default on defendant’s part—with the changes designed to extend the time allotted to defendant to comply with the agreement’s payment terms and, more importantly here, to reduce defendant’s payment obligations in the event it failed to comply. So far as shown, plaintiff voiced no objection to the modifications proposed by defendant nor took any other action in the case for a full six months after defense counsel marked up and returned the stipulation, until March 2009, when plaintiff entered judgment in accordance with the original terms of the stipulation favorable to it.

Given the particular facts and circumstances of this case, and since plaintiff itself acknowledges that the parties’ correspondence yielded an enforceable settlement agreement, we conclude that plaintiff, through “acquiescent conduct” (Eldor Contr. Corp. v County of Nassau, 272 AD2d 509, 509 [2000])—including its election to forgo any further litigation activity on its no-fault claim—accepted and is bound by the stipulation’s revised terms (see Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d 720, 722 [2011]). Accordingly, the amount of the consent [*2]judgment issued below must be reduced to the stipulated principal sum of $950, together with the stipulated attorney’s fees ($196) and costs ($105) due plaintiff.

We note finally that the judgment at issue “is not a default judgment as that term is used in pleading and practice, and [the{**35 Misc 3d at 68} motion court’s] application of law relating to vacating default judgments was erroneous” (Furgang v Epstein, 106 AD2d 609, 610 [1984]).

Torres, J.P., Shulman and Hunter, Jr., JJ., concur.

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 May 12, 2011. The order denied plaintiff’s motion to vacate an order of the same court dated March 4, 2011 granting defendant Robert J. Young’s oral application to open his default and for leave to serve and file an answer.

ORDERED that the order is reversed, without costs, plaintiff’s motion to vacate the March 4, 2011 order granting defendant Robert J. Young’s oral application to open his default and for leave to serve and file an answer is granted, and defendant Robert J. Young’s oral application is denied without prejudice to renewal upon proper motion papers.

On April 8, 2009, plaintiff’s insured’s motor vehicle was hit in the rear by a motor vehicle allegedly owned and operated by defendants. As a result of the accident, plaintiff paid its insured $2,000 in excess no-fault benefits. Thereafter, plaintiff commenced this subrogation action against defendants. Upon defendants’ default in answering or appearing, an inquest was scheduled. Defendant Robert J. Young appeared at the inquest and orally sought to open his default and to serve and file an answer. By order dated March 4, 2011, the District Court granted the oral application, and defendant Robert J. Young filed a verified answer in which he stated that he was the “wrong person.” Thereafter, plaintiff moved to vacate the March 4, 2011 order or, in the alternative, for summary judgment. Plaintiff’s unopposed motion was denied by the District Court by order dated May 12, 2011, from which plaintiff appeals.

In order to open his default pursuant to CPLR 5501 (a) (1), defendant Robert J. Young was required to establish a reasonable excuse for his default in answering as well as the existence of a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]), and such application should have been supported by motion papers on notice to plaintiff (see CPLR 2214). Consequently, the District Court should not have entertained defendant Robert J. Young’s oral application to open his default and to serve and file an answer. [*2]Accordingly, the May 12, 2011 order is reversed, plaintiff’s motion to vacate the March 4, 2011 order is granted, and defendant Robert J. Young’s oral application is denied without prejudice to renewal upon proper motion papers.
Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 10, 2012

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated February 24, 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 modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court properly denied plaintiff’s motion for summary judgment on the ground
that plaintiff had not demonstrated its prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

However, the District Court should have denied defendant’s cross motion for summary judgment dismissing the complaint as well. Defendant failed to submit any evidence from which the circumstances of the accident could be ascertained, and its proof was therefore insufficient to demonstrate that plaintiff’s assignor’s alleged intoxicated condition was a proximate cause of the accident (see Insurance Law § 5103 [b] [2]; Insurance Department Regulations [11 NYCRR] § 65-3.14 [b] [1]; Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737 [2010]; Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]).

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

Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 10, 2012

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

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated November 24, 2010. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is reversed, without 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 denying its motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). The affidavit by plaintiff’s billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (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 the basis for defendant’s denials, i.e., that “written proof of claim was provided more than 45 days after the date these services were rendered” was “without merit as a matter of law.” Contrary to defendant’s contention, it is not the date of defendant’s receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff’s submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 [“the eligible injured person or that person’s assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered”]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).

As plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr., 78 AD3d 1168), the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since defendant failed to do so, plaintiff should have been awarded summary judgment. Accordingly, 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 (a) and the regulations promulgated thereunder.

Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 10, 2012

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 (Cheree A. Buggs, J.), entered January 21, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment on its claim for $150 for services rendered on September 6, 2007. So much of the appeal as is from the portions of the order that denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s claim for $150 for services rendered on September 6, 2007 and granted the branch of plaintiff’s cross motion seeking summary judgment with respect to that claim is deemed from a judgment of the same court entered March 9, 2010 awarding plaintiff the principal sum of $150 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s cross motion seeking summary judgment with respect to plaintiff’s claim for $150 for services rendered on September 6, 2007 is vacated, and said branch of plaintiff’s cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for services rendered from October 5, 2007 through February 21, 2008 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment upon its claim for $150 for services rendered on September 6, 2007. A judgment was subsequently entered, from which the appeal, in part, is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, there is a triable issue of fact with respect to the timeliness of plaintiff’s submission of the claim seeking reimbursement in the sum of $150 for services rendered on September 6, 2007 (see Insurance Department Regulations [11 NYCRR] § 65-1.1; New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822 [2007]). Consequently, neither party was entitled to summary judgment on this claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

With respect to the remaining claims at issue, in support of its motion for summary judgment, defendant submitted, among other things, sworn and affirmed peer review reports, which set forth a factual basis and medical rationale for the opinions that there was a lack of medical necessity for the services set forth in these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [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]). Plaintiff failed to rebut defendant’s prima facie showing of a lack of medical necessity.

In light of the foregoing and the Civil Court’s finding that defendant timely denied the claims, a finding which plaintiff does not dispute, the branches of defendant’s motion seeking summary judgment on the claims for services provided from October 5, 2007 through February 21, 2008 should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 10, 2012

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 4, 2012

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**35 Misc 3d at 51} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on condition that, within 60 days, defendant serve and file the moving affidavit of Marcy Gonzalez, accompanied by a certificate of conformity in compliance with CPLR 2309 (c).

Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant’s procedures for mailing EUO scheduling letters and denial of claim forms (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]). In opposition to defendant’s motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant’s claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff’s remaining contentions lack merit.{**35 Misc 3d at 52} [*2]

Accordingly, the order conditionally granting defendant’s motion for summary judgment is affirmed.

We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.

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

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 1, 2010. The order, insofar as appealed from, denied plaintiffs’ motion for summary judgment.

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

In this action by providers to recover assigned first-party no-fault benefits, the District Court properly denied plaintiffs’ motion for summary judgment on the ground that plaintiffs had not demonstrated their prima facie entitlement to judgment as a matter of law (see New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co., 33 Misc 3d 130[A], 2011 NY Slip Op 51863[U] [App Term, 9th & 10th Jud Dists 2011]).

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

LaCava, J.P., Molia and Iannacci, JJ., concur.
Decision Date: April 02, 2012