SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered September 11, 2009. 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 reversed, without costs, and the matter is remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff lacked standing to bring the action because its owner’s license to practice medicine had been suspended. The court declined to consider defendant’s remaining arguments in light of its determination.

On appeal, plaintiff’s sole argument is that it is entitled to wind up its affairs and seek to recover no-fault benefits for the services it rendered to its assignors prior to the revocation of its owner’s license. We agree (see Kipor Medicine, P.C. v GEICO, 28 Misc 3d 129[A], 2010 NY Slip Op 51247[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs., PLLC v Travelers Indem. Co., 26 Misc 3d 69 [App Term, 9th & 10th Jud Dists 2009]). Thus, both plaintiff’s motion for summary judgment should not have been denied and defendant’s cross motion for summary judgment dismissing the complaint should not have been granted on that ground.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint.

Golia, J.P., Weston and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 February 9, 2010. The order, insofar as appealed from, granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide responses to its discovery demands to the extent of conditionally vacating the notice of trial if plaintiff failed to, among other things, provide defendant with W-2 and 1099 forms for named individuals, as well as plaintiff’s federal tax returns and schedules by the time the case “come[s] up for trial.”

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 as granted defendant’s motion to vacate the notice of trial and compel plaintiff to provide responses to its discovery demands to the extent of conditionally vacating the notice of trial if plaintiff failed to, among other things, provide defendant with W-2 and 1099 forms for named individuals, as well as plaintiff’s federal tax returns and schedules by the time the case “come[s] up for trial.”

The notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed. As a result, we find no basis to disturb the Civil Court’s order which granted the branch of defendant’s motion seeking to vacate the notice of trial and strike the matter from the trial calendar to the extent of conditionally striking the notice of trial so plaintiff could provide the discovery which defendant had requested (see Citywide Social Work & Psychological Servs., PLLC v Autoone Ins. Co., 32 Misc 3d 130[A], 2011 NY Slip Op 51308[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 29 Misc 3d 142[A], 2010 NY Slip Op 52162[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant set forth detailed and specific reasons for believing that plaintiff is a professional service corporation which fails to comply with applicable state or local licensing laws and, thus, ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), a defense which is not precluded (Multiquest, P.L.L.C. v Allstate [*2]Ins. Co., 17 Misc 3d 37 [App Term, 2d & 11th Jud Dists 2007]). By obtaining discovery of certain documents, such as plaintiff’s financial and tax records, as well as W-2 or 1099 forms for individuals who provided the services at issue, defendant will be able to ascertain whether plaintiff is ineligible for reimbursement of no-fault benefits (see e.g. CPLR 3101 [a]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]; see also Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co., 32 Misc 3d 139[A], 2011 NY Slip Op 51551[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

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

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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 24, 2010. The order, insofar as appealed from, 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 as denied its motion for summary judgment dismissing the complaint.

The affidavit executed by defendant’s litigation representative was sufficient to establish that defendant’s NF-10 forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were 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]). However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.

As defendant failed to make a prima facie showing of its entitlement to judgment as a [*2]matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 October 15, 2009. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without 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 found that plaintiff and defendant had established their prima facie cases and that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion.

In support of its cross motion, defendant submitted, among other things, affirmed peer review reports, each of which set forth a factual basis and medical rationale for the respective doctor’s determination that there was a lack of medical necessity for the services rendered. In opposition to the cross motion, plaintiff submitted an affirmation from a doctor which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (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]).

Golia, J.P., Weston and Rios, JJ., concur. [*2]
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 13, 2009. The order, insofar as appealed from as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $498.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 is granted.

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 the branch of its motion seeking summary judgment dismissing so much of the complaint as sought to recover upon plaintiff’s claim for $498.

Defendant established that it had timely denied the claim for $498 (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]) on the ground of lack of medical necessity. In support of its motion for summary judgment, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the medical supplies at issue. Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; 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]). Consequently, defendant established its prima facie entitlement to summary judgment (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]; [*2]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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that these documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In opposition, plaintiff submitted only an affirmation from its counsel and failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review 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]). Accordingly, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $498 should have been granted.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered September 25, 2009. 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 reversed, without 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 moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. The Civil Court found that the sole issue for trial was the medical necessity of the services rendered to plaintiff’s assignor. Defendant appeals, as limited by its brief, from so much of the order as denied its motion.

In support of its motion, defendant submitted, among other things, an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the medical services at issue.

In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]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 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]).

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 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 2, 2009. 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 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 as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely denied the claim (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]) on the ground of lack of medical necessity. The papers submitted in support of defendant’s cross motion for summary judgment included an affirmed peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. Consequently, the burden shifted to plaintiff to rebut defendant’s prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]). In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, defendant’s cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated July 15, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion for summary judgment dismissing the complaint.

Plaintiff concedes that defendant timely mailed the denial of claim forms, which denied the claims on the ground of lack of medical necessity as well as on the alternative ground that the amounts billed for were in excess of the fee schedules. The record establishes that the affirmed peer review report submitted in support of defendant’s motion set forth a sufficient factual basis and medical rationale to demonstrate a lack of medical necessity for the services rendered (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]). As a result, the burden shifted to plaintiff to rebut defendant’s showing.

Since plaintiff, in opposition to defendant’s motion, failed to submit any medical evidence sufficient to raise a triable issue of fact as to medical necessity, defendant was entitled to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52061[U] [App Term, 9th & 10th Jud Dists 2010]; Speciality Surgical Servs. v Travelers Ins. Co. 27 Misc 3d 134[A], 2010 NY Slip Op 50715[U] [App Term, 9th & 10th Jud Dists 2010]; 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted. [*2]

Nicolai, P.J., Molia and Iannaccci, JJ., concur.
Decision Date: January 17, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), dated June 24, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied its unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

In support of its motion, defendant submitted an affidavit of an employee of its claims division, which demonstrated that defendant had timely denied the claims on the ground of lack of medical necessity (see 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]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Contrary to the conclusion of the District Court, the affidavit of defendant’s chiropractor and his independent medical examination (IME) report set forth a sufficient medical rationale and factual basis to demonstrate a lack of medical necessity for the equipment provided to plaintiff’s assignor (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]; B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50144[U] [App Term, 9th & 10th Jud Dists 2010]), so as to shift the burden to plaintiff to rebut defendant’s prima facie showing.

As plaintiff did not submit papers opposing defendant’s motion, defendant’s motion should have been granted. Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 17, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Tricia M. Ferrell, J.), dated October 29, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 29, 2009 order granting plaintiffs’ motion for leave to renew their prior motion for summary judgment, which motion was denied by an order of the same court dated July 21, 2008, and, in effect, for leave to renew their opposition to defendant’s prior cross motion for summary judgment dismissing the complaint, which cross motion was granted by the July 21, 2008 order, and, upon renewal, granting plaintiffs’ motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiffs the principal sum of $11,310.74.

ORDERED that the judgment is reversed, without costs, the order dated October 29, 2009 is vacated, plaintiffs’ motion for leave to renew is denied, and the order dated July 21, 2008 is reinstated.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order dated July 21, 2008, the District Court denied plaintiffs’ motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that the matter should be referred to the Board for its determination of the issue of whether plaintiffs’ assignor was in the course of his employment at the time of the accident. [*2]

Thereafter, plaintiffs moved for leave to renew their prior motion on the ground that, at the time of the prior order, the District Court had been unaware that the Board would be unable to hear the matter since plaintiffs’ assignor had failed to file a claim with the Board. In support of their motion, plaintiffs offered a copy of their counsel’s letter to the Board which requested that the Board schedule a hearing regarding the issue of their assignor’s employment. Plaintiffs also annexed a letter from the Board which purportedly responded to counsel’s letter but in fact did not do so, and instead referred to a different letter sent by counsel.

Defendant opposed plaintiffs’ motion, urging the court to deny the motion because it was not “based upon new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there . . . [was] a change in the law that would change the prior determination” (CPLR 2221 [e] [2]) and because the motion did not “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]).

By order dated October 29, 2009, the District Court granted plaintiffs’ motion for leave to renew and, upon renewal, in effect vacated the July 21, 2008 order, granted plaintiffs’ motion for summary judgment, and implicitly denied defendant’s cross motion for summary judgment. A judgment in the principal sum of $11,310.74 was subsequently entered. Defendant’s appeal from the order is deemed to be from the judgment (CPLR 5501 [c]).

“A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion” (Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR 2221 [e]; Keyland Mech. Corp. v 529 Empire Realty Corp., 48 AD3d 755 [2008]). Such a motion ” is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'” (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]). The District Court granted leave to renew based on plaintiffs’ purported “new facts.” However, the “new facts” offered in support of renewal were in the form of a letter from plaintiffs’ counsel to the Board, requesting that the Board schedule a hearing pursuant to the District Court’s July 21, 2008 order, and a letter from the Board’s General Counsel to plaintiffs’ counsel which was not responsive to plaintiffs’ counsel’s letter, did not refer to the instant case, and, in fact, referred to a different letter from plaintiffs’ counsel. There was nothing in plaintiffs’ submissions to indicate any personal knowledge that a proper application for workers’ compensation benefits had been made by plaintiffs’ assignor, or that the Board had actually rejected such application. Accordingly, leave to renew should have been denied, and the District Court improvidently exercised its discretion in granting plaintiffs’ motion.

We note that, contrary to the conclusion of the District Court, it is the Board which has primary jurisdiction to resolve the question of coverage (see Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Accordingly, the judgment is reversed, the October 29, 2009 order is vacated, plaintiffs’ motion for leave to renew is denied and the order dated July 21, 2008 is reinstated.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 17, 2012