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 (Robin S. Garson, J.), entered May 28, 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, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court made a finding, pursuant to CPLR 3212 (g), that defendant’s NF-10 denial of claim forms were timely, but denied defendant’s cross motion on the ground that the peer review report annexed to defendant’s cross motion did not establish a lack of medical necessity for the services rendered.

In support of its cross motion, defendant submitted, among other things, an affirmed peer review report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services rendered. Defendant’s showing of a lack of medical necessity was not rebutted by plaintiff. In view of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial of claim forms were timely, a finding which plaintiff does not challenge, defendant’s cross motion for summary judgment dismissing the complaint 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]).

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., Golia and Steinhardt, JJ., concur.
Decision Date: August 05, 2011

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 December 1, 2009. The order granted a motion by defendant for the entry of a satisfaction of a default judgment to the extent of vacating the default judgment and deeming the action settled pursuant to a stipulation of settlement entered into by the parties, and denied plaintiff’s cross motion to vacate the stipulation of settlement.

ORDERED that the order is modified by striking the provision vacating the default judgment and by providing that defendant’s motion for an order directing entry of a satisfaction of the judgment pursuant to CPLR 5021 is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties entered into a stipulation of settlement following the entry of a default judgment against defendant. After defendant paid plaintiff the amount called for in the stipulation of settlement, defendant moved to compel plaintiff to execute and file a satisfaction of judgment pursuant to CPLR 5020 or, in the alternative, for the court to direct the clerk to make an entry that the judgment had been satisfied pursuant to CPLR 5021. Plaintiff opposed the motion and cross-moved to vacate the stipulation of settlement, alleging that it had been entered into by mistake or through fraudulent inducement. The Civil Court granted defendant’s motion to the extent of vacating the default judgment and deeming the action settled. The court also denied plaintiff’s cross motion, holding that the stipulation had been signed by the principal owner of plaintiff’s [*2]firm and that the checks which defendant had issued in payment of the amount called for in the settlement had been cashed by plaintiff’s firm. Plaintiff appeals, contending that the stipulation of settlement should have been vacated and, in any event, that there was no basis for the Civil Court to have vacated the default judgment, as this relief was never requested by defendant.

Stipulations of settlement are favored by the courts and not lightly cast aside (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Matter of Galasso, 35 NY2d 319, 321 [1974]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d 875 [2008]). Pursuant to CPLR 2104, when a stipulation is reduced to a writing and signed by a party or its attorney, it is binding upon that party. Furthermore, strict enforcement of a stipulation of settlement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and the integrity of the litigation process (see Hallock v State of New York, 64 NY2d at 230; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876). Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation (see Hallock v State of New York, 64 NY2d at 230; Matter of Frutiger, 29 NY2d 143, 149-150 [1971]; Racanelli Constr. Co., Inc. v Tadco Constr. Corp., 50 AD3d at 876; Nigro v Nigro, 44 AD3d 831 [2007]; Davidson v Metropolitan Tr. Auth., 44 AD3d 819 [2007]).

Contrary to plaintiff’s contentions, plaintiff did not establish that the stipulation of settlement had been entered into through mutual mistake, nor has there been a sufficient showing that there existed a unilateral mistake on the part of plaintiff of a nature that would warrant the vacatur of the stipulation (see Matter of Marquez, 299 AD2d 551 [2002]). Moreover, we do not find that there has been a sufficient showing to demonstrate that defendant fraudulently induced plaintiff to enter into the stipulation of settlement (see Matter of Kaplan, 141 AD2d 545 [1988]). We, however, agree with plaintiff that neither the stipulation nor defendant’s motion called for the vacatur of the default judgment. Accordingly, the order is modified by striking the provision thereof vacating the default judgment and by providing that defendant’s motion for an order directing entry of a satisfaction of the judgment pursuant to CPLR 5021 is granted. Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011

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 September 30, 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 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 held that there is an issue of fact with respect to the medical necessity of the services rendered to plaintiff’s assignor because defendant had not annexed the medical records upon which the peer review relied and defendant had failed to establish a foundation for the admission of the records. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed the denial of claim form (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]), which denied the claim at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, a 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. Contrary to the determination of the Civil Court, there was no need for defendant to annex the medical records examined by the peer review doctor (cf. Matter of State of New York v Wilkes, 77 AD3d 1451 [2010]). Furthermore, [*2]since the purpose of the peer review report submitted by defendant was not to attempt to prove that plaintiff’s assignor was injured as documented in his medical records, or that she was treated as set forth in those records, but to establish that, assuming the facts set forth therein were true, the treatment allegedly provided by plaintiff was not medically necessary, defendant was not required to demonstrate that the records fell within an exception to the rule against hearsay (see id.; 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]; 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]). Defendant’s showing that the services rendered to plaintiff’s assignor were not medically necessary was unrebutted by plaintiff. Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

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

Rios, J., concurs in a separate memorandum.

Rios, J., concurs in the following memorandum:

Contrary to the finding of the majority, in my opinion, the affidavit of defendant’s representative failed to describe on personal knowledge the mailing procedure employed at GEICO by the mailroom employees.

The affidavit alleges in conclusory terms that the envelopes containing the denials are placed in a mail bin for collection by mailroom employees and that they are:
“routinely collected by GEICO’s mail department personnel at least twice daily and delivered to the GEICO mailroom, located within the building at the Woodbury location. These envelopes are postmarked with that day’s date by a GEICO mailroom employee. Proper postage due is also affixed by GEICO’s mail personnel through a United States Post Office authorized postage machine. On that same day, a GEICO mailroom employee brings these postmarked, postage paid envelopes to the United States Post Office, Woodbury location, at 217 Woodbury Road, Woodbury, New York, 11797. This GEICO employee then personally relinquishes these envelopes to a United States Postal Service employee.”

In my view, the affidavit fails to establish a procedure sufficient to demonstrate that the mailing is forwarded to the claimant, especially where no certificate of bulk mailing from the postal service is offered (see Residential Holding Corp. v Scottsdale Ins. Co.,286 AD2d 679 [2001]; Hospital For Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]).

Notwithstanding the apparent flaw in defendant’s proof, the majority points to the holding in St. Vincent’s Hosp. of Richmond v Government Employees Ins. Co. (50 AD3d 1123 [2008]), [*3]which held that a similar affidavit established a general office procedure sufficient to ensure that documents were properly addressed and mailed. In St. Vincent’s, the appellate court credited a statement by the insurer’s representative that
“the contents of this mail pick-up bin are collected by GEICO’s mail department personnel . . . Within 48 hours of its arrival in the GEICO mail room, the mail is delivered to the local United States Postal Service location and mailed.”

Accordingly, I am constrained to concur with my colleagues in their determination.
Decision Date: August 04, 2011

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 (Cheree A. Buggs, J.), entered January 8, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint and limited the issues for trial to defendant’s defense that plaintiff’s submission of its bills to defendant was late.

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 on the ground, among others, that plaintiff’s assignors had failed to comply with a condition precedent to coverage in that they had failed to appear for an independent medical examination (IME). The Civil Court denied both motions and limited the issues of fact for trial (see CPLR 3212 [g]). Defendant appeals.

In support of its cross motion, defendant submitted an affidavit of an employee of Comprehensive Medical Reviews, which had been hired by defendant to schedule the IMEs. That affidavit sufficiently established that the IME notices had been timely sent to plaintiff’s assignors in accordance with Comprehensive Medical Reviews’ 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 an affidavit of the chiropractor who was to perform the IMEs, which established that the assignors had failed to appear for the duly [*2]scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d at 1124).

As the appearance of an assignor at an 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 720), defendant’s motion for summary judgment dismissing the complaint should have been granted.

The remaining contentions raised on appeal either lack merit or need not be reached in light of this determination.

Pesce, P.J., Weston and Steinhardt, 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, Kings County (Dawn Marie Jimenez, J.), entered September 21, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

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.

Plaintiff argues on appeal that, because defendant failed to attach a copy of the bill at issue in this case to its motion papers, the Civil Court could not have been able to identify the bill at issue and, thus, defendant’s motion should have been denied. This contention is without merit. The complaint in this matter identified the sole bill at issue (see CPLR 3013), and defendant attached the complaint to its motion papers as required by CPLR 3212 (b). Accordingly, there could not have been any question as to the identity of the bill which is the subject of this action.

Next, plaintiff correctly argues that defendant could not rely on defendant’s denial of claim forms “for the purposes of asserting the information contained within them,” such as “the dates of services, the services performed, the fees charged per service provided, etc.” However, defendant was not relying on them for that purpose. It is plaintiff’s burden, not defendant’s, to prove the elements of plaintiff’s cause of action. Defendant submitted the denial of claim form to show that it was sent and that the claim was therefore denied (see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire [*2]Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since defendant did not submit the denial of claim form for a hearsay purpose, defendant was not required to lay a CPLR 4518 foundation for its admissibility (see Five Boro Psychological Servs., P.C., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U]; Quality Health Prods., Inc., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U]).

In view of the foregoing, and as plaintiff’s remaining contentions similarly lack merit (see Alfa Med. Supplies v Progressive Northeastern Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51733[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), the order is affirmed.

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: August 04, 2011

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 (Terence C. O’Connor, J.), entered March 19, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave to enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011

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 March 11, 2010. The order conditionally granted plaintiff’s motion for leave to enter a default judgment only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment in the amount demanded in the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, pursuant to CPLR 3215, for leave to enter a default judgment against defendant based upon defendant’s failure to appear in the action or answer the complaint. The motion was unopposed. The Civil Court conditionally granted plaintiff’s motion only to the extent of ordering defendant to serve an answer within 30 days and providing that, if defendant failed to do so, plaintiff could enter judgment for the amount demanded in its complaint. Plaintiff appeals and contends that its motion for leave to enter a default judgment should have been granted unconditionally.

In support of its motion, plaintiff proffered neither a verified complaint nor an affidavit by a party with personal knowledge setting forth the factual basis for the claim, as is required by CPLR 3215 (f). Rather, plaintiff submitted an unverified complaint and an affidavit from an individual who did not establish that he was an employee of plaintiff, did not demonstrate personal knowledge of the facts, and did not establish that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Andrew Carothers, M.D., P.C. v Geico Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. [*2]Co., 55 AD3d 644 [2008]; Balance Chiropractic, P.C. v Property & Cas. Ins. Co. of Hartford, 27 Misc 3d 138[A], 2010 NY Slip Op 50889[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, plaintiff’s motion papers did not demonstrate plaintiff’s entitlement to have its motion for leave enter a default judgment granted unconditionally.

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: July 28, 2011

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 (Cheree A. Buggs, J.), entered January 11, 2010. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint as to claims that were denied based upon a lack of medical necessity for the services rendered.

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 moved for summary judgment dismissing the complaint. In opposition to defendant’s motion, plaintiff submitted, among other things, an affidavit executed by the treating chiropractor. The Civil Court granted defendant’s motion as to some of the claims at issue, and denied defendant’s motion as to claims that were denied based upon a lack of medical necessity for the services rendered, finding a triable issue of fact as to those claims. Defendant appeals from the partial denial of its motion for summary judgment.

Inasmuch as the affidavit of plaintiff’s treating provider raised a triable issue of fact in opposition to defendant’s prima facie showing, the order, insofar as appealed from, is affirmed (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011

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 (Diane A. Lebedeff, J.), entered November 6, 2009. The order denied defendant’s motion, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned.

ORDERED that the order is affirmed, without costs.

In this action to recover assigned first-party no-fault benefits, defendant failed to timely appear in the action. After more than a year had elapsed, defendant served an answer together with discovery demands on plaintiff and filed the answer with the court. About a week later, defendant served and filed an amended answer. At the same time, defendant moved, pursuant to CPLR 3215 (c), to dismiss the complaint as abandoned. The Civil Court denied defendant’s motion, holding that, by serving its answer, defendant had appeared in the action and had waived its entitlement to such relief.

CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” CPLR 3215 (c) applies where a defendant has not served an answer or taken any other steps which may be viewed as a formal or informal appearance (see Myers v Slutsky, 139 AD2d 709 [1988]). However, a defendant’s submission of an answer and service of discovery demands act as a waiver of any right the defendant may have to the dismissal of the complaint pursuant to CPLR 3215 (c) (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d at 710). In view of the foregoing, the Civil Court properly denied defendant’s motion to dismiss the complaint as [*2]abandoned pursuant to CPLR 3215 (c).

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

Golia, J., dissents in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., WESTON and GOLIA, JJ.
AVIR SURGICAL SUPPLIES, INC.
as Assignee of CIGDEM DEMIRKAN,

Respondent,

-against-

NO. 2010-344 Q C

DECIDED
WINDSOR GROUP INSURANCE COMPANY,

Appellant.
Golia, J., dissents and votes to modify the order to provide that defendant’s motion to dismiss the complaint as abandoned is denied as academic and the complaint is dismissed nunc pro tunc pursuant to CPLR 3215 (c).

This action was commenced by plaintiff in 2004. Defendant failed to appear in this action or file an answer to the complaint. Therefore, pursuant to CPLR 3215 (c), plaintiff’s time to enter a default judgment against defendant expired in 2005.

CPLR 3215 (c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment
but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.”

Although not specifically noted in the majority’s decision, which simply states that, “After more than a year had elapsed . . . ,” there was absolutely no activity in this case from 2004 until 2009, when defendant served its answer with affirmative defenses and discovery demands. Within a week of filing its initial answer, defendant filed an amended answer as of right, adding the affirmative defense of CPLR 3215 (c), along with a motion to dismiss pursuant to that section. It is important to note plaintiff did not submit opposing papers to defendant’s motion to [*3]dismiss.

The Civil Court, however, never complied with the requirements of CPLR 3215 (c), not for one year or two years or even three years. That court allowed this case to languish for approximately five years, a total lapse in and of itself, when it should have dismissed this case after one year.

I am not unmindful of the cases cited by the majority, but I find that this defendant, unlike its counterparts in those cases cited, did not waive its rights under CPLR 3215 (c) by any participation in the case. It did not engage in any exchange of discovery, did not engage in any settlement conference, and did not exchange any communication. There is absolutely no indication that plaintiff has shown any prejudice or “sufficient cause . . . why the complaint should not be dismissed,” especially in view of its default below in failing to submit opposing papers. Here, the only action that plaintiff took was to serve the complaint.

Indeed, this plaintiff has failed to raise any argument as to why the case should not be dismissed pursuant to CPLR 3215 (c), except for arguing that defendant filed an answer along with its motion to dismiss and therefore waived its right to dismiss under CPLR 3215 (c), when plaintiff itself is the defaulting party.

It would be inappropriate to allow this plaintiff, which defaulted below, to prosecute a case that should have been dismissed years earlier simply because after five years defendant submitted an answer along with its motion to dismiss. Accordingly, I vote to modify the order to provide that defendant’s motion to dismiss the complaint as abandoned is denied as academic inasmuch as the underlying complaint should have been dismissed pursuant to CPLR 3215 (c), and I would remit the matter to the Civil Court to dismiss the complaint in accordance with my decision.
Decision Date: July 28, 2011

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 (Diane A. Lebedeff, J.), entered December 10, 2009, deemed from a judgment of the same court entered December 28, 2009 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the December 10, 2009 order granting the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third cause of action and so much of the first cause of action as sought to recover the principal sum of $59.96, and granting defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action, awarded plaintiff the principal sum of $1,777.96.

ORDERED that the judgment is reversed, without costs, so much of the order entered December 10, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause of action that sought to recover the principal sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

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 awarded plaintiff summary judgment upon its second and third causes of action, and, upon the first cause of action, awarded plaintiff only the sum of $59.96. [*2]The Civil Court also granted only so much of defendant’s cross motion for summary judgment as sought to dismiss the remainder of plaintiff’s first cause of action. We deem defendant’s appeal from the order to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

In support of its cross motion, defendant submitted an affidavit of an employee of the corporation which had mailed independent medical examination (IME) scheduling letters on defendant’s behalf, which sufficiently established that IME requests had been timely mailed in accordance with that corporation’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 an affidavit from the receptionist of the doctor who was to perform the IMEs, which was sufficient to establish that plaintiff’s assignor 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, affidavits executed by defendant’s employees demonstrated that the claim denial forms, based on plaintiff’s assignor’s nonappearance at the IMEs, had been timely mailed pursuant to defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), defendant is entitled to summary judgment dismissing plaintiff’s second and third causes of action (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]).

While the court awarded plaintiff the sum of $59.96 upon its first cause of action and dismissed the remaining portion of this cause of action based upon the workers’ compensation fee schedule, since the record demonstrates that defendant had previously timely paid this amount to plaintiff (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), defendant was entitled to summary judgment dismissing this portion of plaintiff’s first cause of action.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon its second and third causes of action and upon the portion of its first cause that sought to recover the sum of $59.96, and as granted defendant’s cross motion for summary judgment dismissing the complaint only with respect to the remainder of plaintiff’s first cause of action is vacated, plaintiff’s motion for summary judgment is denied in its entirety and defendant’s cross motion for summary judgment dismissing the complaint is granted in its entirety.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: July 28, 2011