APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Julia L. Rodriguez, J.), entered October 16, 2007, which denied its motion to vacate a stipulation of settlement and to dismiss the action.

Per Curiam.

Order (Julia L. Rodriguez, J.), entered October 16, 2007, affirmed, with $10 costs.

Civil Court properly denied defendant’s motion to vacate a 2002 stipulation settling this action for first party no-fault benefits. Defendant failed to proffer any competent evidence in support of its belated claim that the stipulation was unenforceable because it was “premised on fraud.” “Stipulations of settlement are favored by the courts and are not lightly cast aside” (Hallock v State of New York, 64 NY2d 224, 230 [1984]). While defendant, five years later, is intent on revisiting the propriety of a stipulation entered into upon the advise of counsel, it has failed to demonstrate any basis to excuse it from complying with the terms to which it assented, and may not avoid its enforceability by claiming, in conclusory fashion, that plaintiff’s underlying no-fault claims “appear to be the product of fraud.” As the motion court properly noted, the information regarding plaintiff’s corporate status was available to defendant when the stipulation was entered into in 2002.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 14, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered November 28, 2007, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Appeal from order (Sharon A.M. Aarons, J.), entered November 28, 2007, is deemed an appeal from a judgment (same court and Judge), entered August 18, 2008, and so considered, judgment reversed, with $25 costs, and matter remanded for further proceedings.

In this action to recover first party no-fault benefits, defendant’s medical expert should have been permitted to testify, since the expert witness “would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]; see also Spruce Med. and Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert precluded from testifying because his opinion may have been based, at least in part, on his review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]) or medical records prepared by other physicians and submitted to defendant, relating to treatment provided to the assignor for injuries arising from the same motor vehicle accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 13, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), dated April 17, 2006, after a nonjury trial, in favor of plaintiff and awarding it judgment in the principal sum of $2,670.40.

Per Curiam.

Appeal from order (Fernando Tapia, J.) dated April 17, 2006, is deemed to be an appeal from a judgment (same court and Judge), entered September 6, 2006, and so considered, judgment reversed, with $25 costs, and the complaint dismissed.

In this action to recover first party no-fault benefits, plaintiff failed to meet its evidentiary burden of establishing a reasonable justification for the untimely submission of its claims to defendant. It is undisputed that the health services for which plaintiff seeks to recover no-fault benefits were rendered in November 2003 and that plaintiff did not submit its claims to defendant until March 16, 2004. Defendant denied the claims as untimely and afforded plaintiff the opportunity to submit written proof showing a “clear and reasonable justification” for its failure to comply with the statutory time frame for the filing of claims (see Matter of Medical Socy. Of State of NY v Serio, 100 NY2d 854 [2003]). The sole issue at trial was whether plaintiff had a reasonable justification for its delay in submitting the claims to defendant.

To the extent that plaintiff’s trial proof showed that it mistakenly submitted the claims to the wrong insurer (Allstate Insurance Company) in December 2003, thus justifying its initial delay in submitting the claims to defendant (see 11 NYCRR 65-3.5[l]), its proof was insufficient to establish the date the claims were denied by Allstate or demonstrate a reasonable justification for the subsequent unexplained period of delay prior to submission of the claims to defendant (see NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89 [2007]). The trial court’s contrary determination, insofar as it rested on a finding that defendant failed to show that it was prejudiced by plaintiff’s untimely claims, was improper, since there is no authority in the No-Fault statute or regulations imposing such requirement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concurI concur

Decision Date: July 13, 2009

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 (Joseph Esposito, J.), dated May 16, 2008. The order granted defendant’s motion to vacate a default judgment.

Order reversed without costs and defendant’s motion to vacate the default judgment denied.

In this subrogation action to recover first-party no-fault benefits and uninsured motorist benefits paid to its subrogor, plaintiff moved for summary judgment. By order dated July 6, 2007, the motion was granted on default. In May 2008, defendant moved to vacate the July 6, 2007 order, and plaintiff submitted opposition. On May 6, 2008, while defendant’s motion was pending, a default judgment was entered in favor of plaintiff. By order dated May 16, 2008, the Civil Court vacated the May 6, 2008 judgment and the July 6, 2007 order. The instant appeal by plaintiff ensued.

A defendant seeking to vacate a default must demonstrate a reasonable excuse for his default as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1980]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant herein did not provide a meritorious defense to the action inasmuch as he failed to make any showing that he was not responsible for the underlying motor vehicle accident, but merely stated, “I don’t owe any money to defendant.” Accordingly, the order of the Civil Court is reversed and defendant’s motion to vacate is denied (see State Farm Auto. Ins. Co. [*2]v A & G Luxury Limo, Inc., 21 Misc 3d 144[A], 2008 NY Slip Op 52471[U] [App Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 (George J. Silver, J.), entered February 7, 2008. The order, insofar as appealed from as limited by the brief, upon granting the branch of defendant’s motion seeking leave to reargue, granted the branch of defendant’s motion seeking summary judgment dismissing the complaint.

Order, insofar as appealed from, 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 of lack of medical necessity. Plaintiff cross-moved for summary judgment and argued in opposition to defendant’s motion that defendant had failed to come forward with proof that the performed MRI was not medically necessary. The Civil Court denied defendant’s motion and plaintiff’s cross motion. By order entered February 7, 2008, the Civil Court granted defendant’s motion seeking leave to reargue and, upon reargument, summary judgment. As limited by the brief, plaintiff appeals from so much of the February 7, 2008 order as granted the branch of defendant’s motion seeking summary judgment.

Contrary to plaintiff’s contention, the affidavit submitted by defendant’s claims representative sufficiently established that the denial of claim form at issue was timely mailed pursuant to defendant’s standard office practice and procedure (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]). As the affirmed report by [*2]defendant’s examining physician provided a factual basis and medical rationale for his opinion that the billed-for MRI was not medically necessary (see Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52450[U] [App Term, 2d & 11th Jud Dists 2008]; Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51761[U] [App Term, 2d & 11th Jud Dists 2008]), and plaintiff failed to rebut such proof, the Civil Court properly granted defendant summary judgment. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 (Margaret A. Chan, J.), entered October 5, 2007. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment established plaintiff’s prima facie entitlement to such relief (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]). Defendant did not submit papers opposing plaintiff’s motion. Consequently, the Civil Court improperly denied plaintiff’s unopposed motion for summary judgment.

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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.), dated March 24, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

Order, insofar as appealed from, reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment dismissing the complaint, finding that there was a question of fact as to medical necessity. Defendant appeals from so much of the order as denied its cross motion.

Contrary to plaintiff’s contention, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim form, which had denied plaintiff’s claim based upon a peer review report, since the affidavit described in detail, on the affiant’s personal knowledge, defendant’s standard office practice or procedure used to ensure that the denial was properly addressed and mailed (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]). The papers submitted in support of defendant’s cross motion for summary judgment dismissing the complaint include the sworn peer review report by defendant’s doctor, which sets forth a factual basis and medical rationale for the doctor’s opinion that the medical services provided were medically unnecessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d [*2]142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, defendant’s papers contain the medical records and reports prepared by the assignor’s various providers, which documents were relied upon by defendant’s doctor to establish that there was a lack of medical necessity for the services at issue. In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint (see e.g. Franchini v Palmieri, 1 NY3d 536 [2003]; Diaz v Anasco, 38 AD3d 295 [1st Dept 2007]; Tuna v Babendererde, 32 AD3d 574 [3d Dept 2006]) and shifted the burden to plaintiff, which stands in the shoes of its assignor (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]), to raise a triable issue of fact in opposition to defendant’s cross motion.

The affidavit submitted by plaintiff in opposition was insufficient as it merely consisted of a conclusory statement by the affiant that he disagreed with the opinion of defendant s peer review doctor that there was no medical necessity for the services rendered. The affiant did not meaningfully refer to, or discuss, the determination of defendant’s doctor. Plaintiff’s remaining contentions similarly lack merit. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see 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., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 January 9, 2008. The order, insofar as appealed from as limited by the brief, granted so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action.

Order, insofar as appealed from, reversed without costs and so much of plaintiff’s motion as sought summary judgment upon its fifth cause of action denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, insofar as is relevant to this appeal, upon its fifth cause of action, involving a claim in the sum of $398.61. In opposition to plaintiff’s
motion, defendant argued that it never received said claim. As limited by its brief, defendant appeals from so much of the Civil Court order as granted plaintiff summary judgment on its fifth cause of action.

A provider generally establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). A provider ordinarily establishes the submission of the claim form by demonstrating proof of its proper mailing, which proof gives rise to the presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing, or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (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]). Here, in light of the contradictions between the affidavit of plaintiff’s billing manager and the annexed post office ledger, upon which the billing manager relied, plaintiff did not establish submission of the $398.61 claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, plaintiff failed to establish its prima facie entitlement [*2]to summary judgment on its fifth cause of action. Accordingly, the order, insofar as appealed from, is reversed and so much of plaintiff’s motion as sought summary judgment on its fifth cause of action is denied.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 (Lila Gold, J.), entered November 26, 2007. The order denied the petition of 563 Grand Medical, P.C. to vacate a master arbitrator’s award and confirmed the award.

Order affirmed without costs.

563 Grand Medical, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see Avanessov v State-Wide Ins. Co., 21 Misc
3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]; SP
Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was a document that was denominated an “Affirmation in Support,” which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who purportedly signed the document merely indicated that he “states as follows,” which is insufficient under the law (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. [*2]& Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (Avanessov, 21 Misc 3d 132[A], 2008 NY Slip Op 52131[U]; SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order is affirmed, albeit on other grounds.

We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 09, 2009

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 January 3, 2008, deemed from a judgment of the same court entered February 11, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 3, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,864.25.

Judgment reversed without costs, order entered January 3, 2008 vacated, plaintiff’s motion for summary judgment denied and defendant’s cross motion for summary judgment dismissing the complaint 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 the action was premature because it was commenced before defendant received responses to its outstanding verification requests. The Civil Court granted plaintiff’s motion and implicitly denied defendant’s cross motion. The instant appeal by defendant ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

The record demonstrates that defendant timely mailed requests for verification and follow-up requests for verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s cross motion to dismiss the action as premature should have been granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York [*2]Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

In light of the foregoing, we reach no other issue.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 09, 2009