[*1] Decided on October 22, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, Hunter, Jr., JJ
570112/10.

McKeon, P.J., Schoenfeld, Hunter, Jr., JJ.

New Millenium Medical SupplyNY County Clerk’s No. 570112/10 a/a/o Gibson Stayman, Plaintiff-Respondent, against Calendar No. 10-106 Clarendon National Insurance Company, Defendant-Appellant. Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint. Per Curiam. Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly. Plaintiff’s cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the claim — not the date of defendant’s untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff’s reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: October 22, 2010

10/22/2010
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
								April 2010 Term

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 23, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), dated April 23, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

Plaintiff’s cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant’s receipt of the claim — not the date of defendant’s untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff’s reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 22, 2010

[*1] Decided on October 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1401 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 2, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,446.67.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath
(EUOs). The Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Defendant submitted an affirmation of an associate of the law firm retained by defendant to conduct the EUOs. The affirmation set forth facts sufficient to establish that plaintiff’s assignor had failed to appear at the affirmant’s law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Since appearance at an EUO is a condition precedent to an insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; [*2]Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 20, 2010

[*1] Decided on October 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-101 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered June 26, 2008. 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, defendant moved for summary judgment dismissing the complaint on the ground that the services rendered were not medically necessary. Plaintiff opposed the motion. The Civil Court granted the motion, finding that plaintiff had failed to establish the existence of a triable issue of fact. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing that it had timely denied the claims on the ground of lack of medical necessity (see 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]), and by submitting an affirmed peer review report from its doctor setting forth a factual basis and medical rationale for his conclusion that the services rendered were not medically necessary (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. [*2]Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff contends that defendant failed to establish its prima facie entitlement to summary judgment since, although defendant’s peer review doctor listed the medical reports and/or records of third parties that he had reviewed in reaching his
conclusion that the services rendered were not medically necessary, defendant failed to annex to its moving papers copies of these documents. We reject this contention since these reports and records are not part of defendant’s prima facie showing. We note that, pursuant to CPLR 3212 (f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if “facts essential to justify opposition may exist but cannot then be stated.” However, plaintiff failed to “put forth some evidentiary basis to suggest that discovery might lead to relevant evidence” (Trombetta v Cathone, 59 AD3d 526, 527 [2009]; see Canarick v Cicarelli, 46 AD3d 587 [2007]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2007]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614 [1999]), and the “mere hope” that discovery will uncover the existence of a material issue of fact is insufficient to delay a summary judgment determination (Giraldo v Morrisey, 63 AD3d 784, 785 [2009]). Inasmuch as plaintiff failed to rebut defendant’s prima facie showing of its entitlement to summary judgment, defendant’s motion was properly granted. Accordingly, the order is affirmed.
Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: October 20, 2010

[*1] Decided on October 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1441 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered November 19, 2007. The order denied defendant’s motion to vacate a prior order of the same court (Robin S. Garson, J.), dated October 15, 2007, which had granted on default plaintiff’s motion for summary judgment.

ORDERED that the order entered November 19, 2007 is reversed without costs, defendant’s motion to vacate the October 15, 2007 order is granted, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. When defendant attempted to file opposing papers almost a month after their stipulated due date, the Civil Court rejected defendant’s papers and, by order dated October 15, 2007 (Robin S. Garson, J.), granted plaintiff’s motion on default. In November 2007, defendant moved to vacate the October 15, 2007 order pursuant to CPLR 5015 (a) (1). By order entered November 19, 2007 (Peter Paul Sweeney, J.), the Civil Court denied defendant’s motion without prejudice, stating that “[d]efendant is granted leave to submit a motion to reargue or renew before Judge Garson, who initially granted the judgment in dispute.” The instant appeal by defendant ensued.

It is well settled that a party seeking to vacate an order granting summary judgment on default must demonstrate a reasonable excuse for the default and the existence of a meritorious cause of action or defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). In the exercise of its discretion, a court can accept a claim of law office failure as an excuse (see CPLR 2005), if the [*2]facts submitted in support thereof are in evidentiary form sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include “a detailed explanation of [the] oversights” (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; see also Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). The affirmations of the attorneys employed by the law firm representing defendant satisfied these criteria.

Defendant also demonstrated a meritorious defense to the action. The affidavit of an employee of defendant’s claims department showed that defendant had timely mailed the denial of claim forms in accordance with defendant’s 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]). The employee’s affidavit also established that the claims were denied based upon the annexed verified peer review report and affirmed independent medical examination reports, which concluded that there was a lack of medical necessity for the services rendered. Consequently, defendant set forth a triable issue of fact sufficient to defeat plaintiff’s motion for summary judgment.

We note that, contrary to the Civil Court’s direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue (see e.g. Raciti v Sands Point Nursing Home, 54 AD3d 1014 [2008]).

Accordingly, the order is reversed, defendant’s motion to vacate the October 15, 2007 order is granted and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010

[*1] Decided on October 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1378 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 21, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 21, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $975.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued, based upon an affirmed peer review report, that the medical equipment provided to plaintiff’s assignor was not medically necessary. In an order dated April 21, 2009, the Civil Court granted plaintiff’s motion, concluding that plaintiff had established its entitlement to judgment as a matter of law and that defendant’s affidavit in opposition to the motion failed to establish that defendant timely denied the claim. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit by plaintiff’s billing manager was sufficient to demonstrate that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). The affidavit submitted by defendant’s claims division employee established that defendant’s denial of claim form, which denied plaintiff’s claim due to, among other things, a lack of medical necessity, had been timely mailed in accordance with [*2]defendant’s 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 annexed a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the supplies were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also 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]). Consequently, plaintiff’s motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010

[*1] Decided on October 5, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1371 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 28, 2009, deemed from a judgment of the same court entered June 9, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 28, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,268.73.

ORDERED that the judgment is affirmed without costs.

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

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing administrator was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As defendant raises no other issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not otherwise pass upon the propriety of the determination of the Civil Court with respect thereto.

Since the affidavit executed by defendant’s claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish the actual mailing of the denial of claim forms or its standard office practices and procedures for the mailing of denial of claim forms [*2]during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (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]; Points of Health Acupuncture, P.C. v Geico Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defenses (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]). Accordingly, as defendant failed to establish its entitlement to summary judgment or even demonstrate the existence of a triable issue of fact, the judgment is affirmed.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 05, 2010

A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co.

2010 NY Slip Op 20416 [29 Misc 3d 87]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 12, 2011

[*1]

A.M. Medical Services, P.C., as Assignee of Emily A. Mizheritskaya, Appellant, v Liberty Mutual Insurance Co., Respondent.

Supreme Court, Appellate Term, Second Department, October 5, 2010

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Carman, Callahan & Ingham, LLP, Farmingdale (Adeel Jamaluddin of counsel), for respondent.

{**29 Misc 3d at 88} OPINION OF THE COURT

Memorandum.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment in July 2003, which motion it subsequently withdrew. In May 2004, plaintiff made a second motion for summary judgment. When defendant failed to submit written opposition thereto, plaintiff’s motion was granted on default and, in September 2007, a default judgment in the sum of $15,457.33 was entered against defendant. In March 2009, defendant moved, inter alia, to vacate the default judgment pursuant to CPLR 5015 (a) (3). Defendant argued that the default judgment had been obtained through plaintiff’s fraud, misrepresentation or misconduct since the claim forms plaintiff had annexed to its motions contained handwritten notations which were not on the original claim forms included with the complaint and provided to defendant, and the motions were supported by affidavits containing false statements. By order entered April 24, 2009, the Civil Court granted defendant’s motion, finding that defendant was deprived of the opportunity to timely oppose plaintiff’s motion for summary judgment since plaintiff had failed to provide defendant with a courtesy copy of its motion, which the court found to be “tantamount to fraud.” The instant appeal by plaintiff ensued.

CPLR 5015 (a) (3) provides that a judgment may be vacated on the ground of “fraud, misrepresentation, or other misconduct of an adverse party.” When a defendant’s CPLR 5015 (a) (3) motion alleges intrinsic fraud—i.e., that the plaintiff’s allegations are false—the defendant must also provide a reasonable excuse for its default (see Bank of N.Y. v Stradford, 55 AD3d 765 [2008]; Bank of N.Y. v Lagakos, 27 AD3d 678 [2006]).{**29 Misc 3d at 89}

In support of its motion, defendant argued that plaintiff had submitted affidavits which contained false statements and that plaintiff had annexed to its motion papers false documentation. Defendant was, thus, alleging that plaintiff had obtained the default judgment through “intrinsic fraud” (Bank of N.Y. v Lagakos, 27 AD3d at 679). Consequently, defendant was required to show a reasonable excuse for its default (see Bank of N.Y. v Stradford, 55 AD3d at 765-766), which defendant failed to do. The affirmation of defendant’s attorney did not show that counsel had personal knowledge of any facts pertaining to the alleged law office failure and, therefore, the affirmation was insufficient to establish an excuse for the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). Further, since defendant’s attorney’s “supplemental” affirmation was, in fact, a reply affirmation, the factual allegations asserted for the first time therein must be disregarded (see McNair v Lee, 24 AD3d 159 [2005]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355 [2005]).

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

Golia, J. (dissenting and voting to affirm the order in the following memorandum). In my opinion, defendant’s default was excusable as the result of law office failure. The recognized and viable excuse of law office failure, in conjunction with the meritorious defense of intrinsic fraud committed by plaintiff, constitutes sufficient grounds to have the default judgment vacated.

It is well settled in New York that a defendant seeking to vacate a default judgment must demonstrate a reasonable excuse for its default and a meritorious defense to the action (see CPLR 5015 [a] [1]; see also Fidelity & Deposit Co. of Md. v Andersen & Co., 60 NY2d 693 [1983]; Stewart v Warren, 134 AD2d 585 [1987]). It is also settled law that, under CPLR 2005 and supporting case law, a court may, in its discretion, accept a claim of law office failure as satisfying the reasonable excuse requirement (see CPLR 2005; Vierya v Briggs & Stratton Corp., 166 AD2d 645 [1990]; Searing v Anand, 127 AD2d 582 [1987]; Alternative Automotive v Mowbray, 101 AD2d 715 [1984]). Here, law office failure is established through the affirmations of defendant’s attorneys.{**29 Misc 3d at 90}

Unlike the majority, I find that the affirmations submitted in support of defendant’s motion to vacate the default judgment established sufficient knowledge of the facts asserted.

“Personal knowledge is not presumed from a mere positive averment of the facts. A court should be shown how the deponent knew or could have known such facts and if there is no evidence from which the inference of personal knowledge can be drawn then it is presumed that such does not exist (1 Carmody-Wait 2d, NY Prac § 4:28, at 644)” (Bova v [*2]Vinciguerra, 139 AD2d 797, 798 [1988] [citation omitted]).

The affirmation of defendant’s attorney, Adeel Jamaluddin, is prefaced by a statement of personal knowledge of the within matter. The affirmation of another of defendant’s attorneys, Paul Barrett, detailed his employment with the firm responsible for the law office failure. These affirmations, in conjunction with the attorneys’ obvious familiarity with the facts of the instant case, clearly establish the requisite personal knowledge demanded of an affirmation. Defendant’s law firm inadvertently lost essential documents, i.e., plaintiff’s 2003 motion papers for summary judgment, and subsequently miscalendared the December 2004 court date, all as a result of personnel turnover (at a minimum five different assigned counsels and one law assistant). As the foregoing clearly constitutes law office failure, defendant established a reasonable excuse for its default.

In addition to demonstrating an excusable default, defendant must also establish a meritorious defense. It is alleged from the documents submitted herein that plaintiff committed intrinsic fraud. Unlike extrinsic fraud, which is intended to induce a judgment as a result of the opposing party’s default, intrinsic fraud is a more subtle concept based on a misrepresentation made to the court, in this case the alteration of documents (see generally 60A NY Jur 2d, Fraud and Deceit § 3; Bank of N.Y. v Lagakos, 27 AD3d 678 [2006]). The handwritten entries on the submitted documents herein could appear both to influence the court’s attention and to direct it to matters that plaintiff deems important, as well as to disfavor other matters. Clearly, it is axiomatic that documents entered into the record should never be altered in any way, for any purpose. Such an alteration of submitted documents constitutes a meritorious defense of intrinsic fraud. Based on the foregoing, I would affirm the Civil Court’s order.{**29 Misc 3d at 91}

Pesce, P.J., and Rios, J., concur; Golia, J., dissents in a separate memorandum.

[*1] Decided on October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1814 K C. A.B. MEDICAL SERVICES, PLLC,

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered January 7, 2009, deemed from a judgment of the same court entered March 30, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 7, 2009 order granting plaintiffs’ motion for summary judgment and denying defendant’s motion to dismiss the complaint, awarded plaintiffs the principal sum of $11,460.46.

ORDERED that the judgment is reversed without costs, the order granting plaintiffs’ motion for summary judgment and denying defendant’s motion to dismiss the
complaint is vacated, and the matter is remitted to the Civil Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the Civil Court of such application within 90 days of the date of the order entered hereon, the Civil Court shall deny plaintiffs’ motion and grant defendant’s motion to dismiss the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Thereafter, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (2), based upon the assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court denied defendant’s motion to dismiss and granted plaintiffs’ motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, [*2]from which the appeal is deemed to be taken (see CPLR 5501 [c]).

The Workers’ Compensation Board (Board) has primary jurisdiction to determine factual issues concerning coverage under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909 [1983]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; Santigate v Linsalata, 304 AD2d 639 [2003]). Where a plaintiff fails to litigate the issue of the availability of workers’ compensation coverage before the Board, “the court should not express an opinion as to the availability of compensation but remit the matter to the Board” (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; see also O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008]).

In the instant case, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiffs’ assignor was acting as an employee at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629; Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, prior to rendering a determination on the motions, the Civil Court should have held the matter in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the
parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

[*1] Decided on October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1805 Q C.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 8, 2009, deemed from a judgment of the same court entered July 27, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 8, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $912.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the services rendered were not medically necessary. By order entered June 8, 2009, the Civil Court granted plaintiff’s motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The affidavit submitted by defendant in opposition to plaintiff’s motion for summary judgment was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with [*2]defendant’s 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 annexed a copy of an affirmed peer review report setting forth a factual basis and medical rationale for the doctor’s conclusion that the subject services were not medically necessary. As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010

[*1] Decided on October 1, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1743 K C.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered May 21, 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, defendant moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. In opposition to the motion, plaintiff submitted only an affirmation from its counsel. The court denied defendant’s motion, finding that the sole issue to be determined at trial was the medical necessity of the supplies at issue. This appeal by defendant ensued.

The affidavit submitted by defendant was sufficient to establish that defendant’s denial of claim form, which had denied the claim at issue of the ground of lack of medical necessity, was timely mailed in accordance with defendant’s 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, as well as an affidavit executed by the chiropractor who had performed the peer review, 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. As plaintiff failed to proffer an affidavit from a health care practitioner which [*2]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]), defendant’s motion for summary judgment 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]; ain Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010