[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1782 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 18, 2009. The order, insofar as appealed from, in effect, 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint. Insofar as is relevant to this appeal, the Civil Court found that defendant’s denial of claim form was “timely and proper,” and that the sole issue to be determined at trial was the medical necessity of the medical equipment at issue. Defendant appeals 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, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical equipment at issue. Defendant’s showing that the equipment was not medically necessary was unrebutted by plaintiff.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant’s denial was “timely and proper,” a finding which plaintiff has not disputed on appeal, 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 & 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]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1781 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered March 24, 2009. The order, insofar as appealed from, in effect 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. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that there was a lack of medical necessity for the services rendered. Plaintiff did not oppose defendant’s cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it mailed timely and valid denials,” and that the sole issue to be determined at trial was the medical necessity of the medical services at issue. Defendant appeals 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, among other things, the affirmed peer review reports of a neurologist and a doctor of internal medicine, both of which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the medical services at issue. Defendant’s showing that such services were not medically necessary was unrebutted by plaintiff. While plaintiff asserts on appeal that a letter of medical necessity by Dr. Ronald DiScenza was submitted by plaintiff in rebuttal to one of the peer review reports and was sufficient to raise a triable issue of fact, the order appealed from indicates that the Civil Court did not consider any opposition to the cross motion and there is no such letter in the record.

In light of the foregoing, and the Civil Court’s CPLR 3212 (g) finding that defendant “established that it mailed timely and valid denials,” a finding which plaintiff does not dispute on appeal, 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 & 13th Jud Dists 2009]; Delta Diagnostic [*2]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]).

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570600/10.

Shulman, J.P., McKeon, Schoenfeld, JJ.

NY County Clerk’s No. 570600/10 Calendar No. 10-358 Triangle R Inc. a/a/o Danilo Cabarcas, Plaintiff-Respondent, -against- Praetorian Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint. An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue. As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*2]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur Decision Date: November 26, 2010

NOVEMBER 26, 2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								Nove mber 2010 Term

Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), entered October 29, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), entered October 29, 2009, reversed, without costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

An insurer is not obligated to pay or deny a claim for no-fault benefits until it has received verification of all of the relevant information requested (see 11 NYCRR 65-3.8[b][3]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Inasmuch as it is undisputed that defendant-insurer never received a response to its verification requests for medical records, defendant established its prima facie entitlement to summary judgment dismissing the claim as premature (see Hospital for Joint Diseases, supra; Nyack Hosp., supra). In opposition, plaintiff-provider failed to raise a triable issue.

As plaintiff correctly concedes on appeal, defendant’s issuance of a general, blanket denial of benefits arising from the subject loss based on the assignor’s failure to attend an independent medical examination was ineffective to deny the specific claim at issue (see generally A & S Med. v Allstate Ins. Co., 15 AD3d 170 [2005], affg 196 Misc 2d 322 [2003]). Therefore, we reject plaintiff’s contention that defendant’s issuance of the general, blanket denial precludes defendant from asserting, as an alternative defense, noncompliance with its verification requests (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]).
Plaintiff’s estoppel argument is unpreserved for appellate review, and, in any event, without merit. Plaintiff submitted no competent proof demonstrating that it was misled or that it detrimentally relied on the general, blanket denial. Moreover, any confusion on plaintiff’s part as [*3]to whether the general, blanket denial vitiated defendant’s entitlement to receive the verification requested “should have been addressed by further communication, not inaction” (id. at 555).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: November 26, 2010

[*1] Decided on November 26, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ
570501/10.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered April 15, 2010, which denied its motions for summary judgment dismissing the complaints.

Per Curiam.

Order (Fernando Tapia, J.), entered April 15, 2010, reversed, with $10 costs, defendant’s motions for summary judgment granted and the complaints dismissed. The Clerk is directed to enter judgement accordingly.

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff’s assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant’s motion for summary judgment dismissing the underlying actions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 26, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-2023 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 11, 2009, deemed from a judgment of the same court entered June 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 11, 2009, which, inter alia, granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,790.67.

ORDERED that the judgment is reversed, without costs, so much of the order entered May 11, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action are 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. Defendant appeals from an order entered May 11, 2009 insofar as it granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding whether plaintiff established its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavit of defendant’s claims representative established that defendant timely requested additional verification of the claim at issue in the third cause of action and that plaintiff failed to respond to defendant’s initial and follow-up requests (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the third cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, the branch of defendant’s cross motion seeking to dismiss the third cause of action should have been granted.

Defendant timely denied the claim at issue in the first cause of action on the ground of lack of medical necessity (St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In support of its cross motion, defendant also submitted an affirmed peer review report from defendant’s chiropractor, which set forth a factual basis and medical rationale for the conclusion that the services rendered were not medically necessary. The chiropractor’s peer review report was affirmed (cf. CPLR 2106) instead of being sworn to before a notary public. However, inasmuch as plaintiff did not submit papers in opposition to defendant’s cross motion for summary judgment, plaintiff waived such defect by failing to object to it in the Civil Court (see Akamnonu v Rodriguez, 12 AD3d 187 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut the conclusion set forth in the peer review report, the branch of defendant’s cross motion seeking to dismiss the first cause of action should have been granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1933 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 28, 2009. The order granted the branch of plaintiff’s motion seeking leave to reargue defendant’s prior motion for summary judgment dismissing the complaint, and, upon reargument, vacated the prior order and denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to; as so modified, the order 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 on the ground that the services provided were not medically necessary. Plaintiff submitted an affirmation in opposition to defendant’s motion for summary judgment. By order entered December 5, 2008, the Civil Court granted defendant’s motion. By order entered May 28, 2009, the Civil Court granted the branch of a motion by plaintiff seeking leave to reargue, and, upon reargument, vacated the December 5, 2008 order and denied defendant’s motion for summary judgment. The instant appeal by defendant ensued.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied plaintiff’s bills on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue lacked medical necessity. Therefore, 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 [*2]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 opposition to the motion, plaintiff failed to raise a triable issue of fact, as the doctor’s affirmation submitted by plaintiff did not 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]; see also Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

On reargument, plaintiff contended that the Civil Court had overlooked the affirmation of Dr. Shapiro, which plaintiff had submitted in opposition to defendant’s original motion for summary judgment. However, this affirmation was insufficient to raise a triable issue of fact. Accordingly, the order is modified by providing that, upon reargument, the order granting defendant’s motion for summary judgment dismissing the complaint is adhered to.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1873 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered June 19, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted; as so modified, the order 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 on the ground,
among others, that the services provided were not medically necessary, and plaintiff cross-moved for summary judgment. Defendant appeals, as limited by its brief, from so much of the Civil Court’s order as denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the bills relating to plaintiff’s second, third, fifth, sixth and eighth causes of action on the ground of lack of medical necessity (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue in the second, third, fifth and eighth causes of action were not medically necessary. Consequently, defendant established its prima facie entitlement to summary judgment with regard to these causes of action (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 & [*2]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]). However, defendant’s motion papers did not shift the burden with respect to plaintiff’s sixth cause of action since neither of the peer review reports submitted referred to the services set forth in plaintiff’s sixth cause of action.

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro’s affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, 265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]), and the Civil Court should not have considered any facts set forth in that affirmation (see Pisacreta, 265 AD2d 540). 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1440 RI C.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered May 15, 2009. 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, the Civil Court denied defendant’s unopposed motion for summary judgment dismissing the complaint on the ground of lack of medical necessity. This appeal by defendant ensued.

The affidavits submitted by defendant were sufficient to establish that defendant’s denial of claim forms, which denied the claims at issue of the ground of lack of medical necessity, had been timely mailed in accordance with standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted, among other things, a sworn peer review report, which set forth a factual basis and medical rationale for the doctor’s conclusion that there was a lack of medical necessity for the testing at issue. As the affidavit from plaintiff’s health care practitioner, included in defendant’s motion papers, failed to meaningfully refer to, let alone rebut, 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]), defendant’s motion for summary judgment 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 & 13th Jud Dists 2009]; Delta Diagnostic Radiology, oftlineP.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]). [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-718 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered September 10, 2008. The order granted defendant’s motion to vacate a default judgment.

ORDERED that the order is reversed, without costs, and defendant’s motion to vacate the default judgment is denied.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to vacate a default
judgment.

In order to vacate a default judgment on the ground of excusable default, a defendant is required to establish both a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]).
In support of its motion, defendant submitted an affidavit from a claims adjuster employed by defendant’s third-party claims administrator, who averred that her company had become aware of this action on or about January 26, 2007 when it had received copies of the summons and complaint. The administrator tried to locate the underlying claim file but was delayed in doing so because the file was in the process of being transferred to the insurance company that had just purchased the subject insurance policy from defendant. The administrator finally obtained the claim file on or about August 1, 2007 and only then assigned counsel, who served plaintiff with an answer on August 15, 2007.

Based on the above facts, defendant failed to proffer a reasonable excuse for its default. A party in jeopardy of defaulting for nonappearance in an action may request an extension of time to file its answer upon good cause shown (see CPLR 2004). Failure to move pursuant to CPLR 2004 for an extension of time to file an answer may eviscerate the grounds for a reasonable excuse (cf. Builders Mechanic Co. v Claiborne, 277 AD2d 193 [2000]; Weiss v Kahan, 209 AD2d 611, 612 [1994]). Here, defendant was served with the summons and complaint on January 15, 2007 and its third-party claims administrator received a copy of the summons and complaint on January 26, 2007. Thereafter, both defendant and its third-party [*2]claims administrator knowingly failed to take any action with respect to this lawsuit for approximately eight months. In the interim, plaintiff applied for a default judgment in March 2007, and a default judgment was entered on September 6, 2007.

In view of the foregoing, we find that the Civil Court improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment. Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is denied.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

[*1] Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-254 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 6, 2008. The order granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion for partial summary judgment.

ORDERED that the order is modified by providing that plaintiff’s motion for partial summary judgment is denied and, as so modified, affirmed without costs on condition that defendant, within 60 days of service upon it of a copy of this decision and the order entered hereon with notice of entry, serve upon plaintiff and file with the Clerk of the Civil Court an affidavit of Carol Keyes, identical to the affidavit submitted previously by defendant, accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event that defendant fails to duly serve and file such an affidavit, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for partial summary judgment seeking to recover on the claims it submitted for healthcare services rendered to assignor Orlando Espinal. Defendant cross-moved for summary judgment seeking dismissal of the complaint insofar as it sought to recover for services rendered to assignor Espinal. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals, arguing that its cross motion should have been granted or, in the alternative, that plaintiff’s motion should have been denied because defendant raised a triable issue of fact.

Defendant argues first that the complaint should be dismissed as to the subject claims, which were submitted on January 14, 2002, because defendant’s assignor agreed to revoke the assignment in a December 2002 stipulation. Regardless of whether this defense was properly presented, it fails as a matter of law because “the assignor or legal representative of the assignor shall not unilaterally revoke the assignment after the services for which the assignment was originally executed were rendered” (Insurance Department Regulations [11 NYCRR] § 65-3.11 [d]). [*2]

Defendant’s second argument is that plaintiff should not recover for services rendered to assignor Espinal because he made material misrepresentations in order to obtain the subject New Jersey insurance policy. While New York law does not allow for the retroactive cancellation of an automobile insurance policy (see Vehicle and Traffic Law § 313), New Jersey law does allow for such retroactive rescission for a material misrepresentation at the inception of the policy (see Rutgers Cas. Ins. Co. v LaCroix, 194 NJ 515, 946 A2d 1027 [2008]), and, had there been a cancellation of the subject insurance policy, New Jersey law would properly be applied (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). However, defendant has not demonstrated that it cancelled the subject insurance policy.

On the other hand, defendant’s employee’s assertion that the subject insurance policy was obtained by fraud and/or material misrepresentations is a permissible affirmative defense that, if proved, precludes any recovery by the insured or a health care provider who accepts an assignment of the insured’s no-fault benefits (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d & 11th Jud Dists 2006]). We find that while the documents attached to defendant’s cross motion are not a sufficient basis for an award of summary judgment dismissing the complaint as to the claims submitted for services rendered to assignor Espinal, they are sufficient to raise a triable issue of fact as to whether the subject insurance policy was fraudulently obtained.

With respect to plaintiff’s timely objection to the form of defendant’s employee’s affidavit, we note that while defendant permissibly sought to cure this defect in its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), defendant submitted a certificate of authenticity rather than the required certificate of conformity (see CPLR 2309 [c]; Real Property Law § 299-a [1]; see also Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [Civ Ct, Queens County 2002]). Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, the order is modified by providing that plaintiff’s motion for partial summary judgment is denied on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]). Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: November 19, 2010