SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 22, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross motion for summary judgment was granted. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained
arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Delores J. Thomas, J.), entered March 7, 2005. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied the petitioner’s claims for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: October 19, 2007

[*1]

Supreme Court, Appellate Term, First Department, October 17, 2007

APPEARANCES OF COUNSEL

Votto, Cassata & Gullo, LLP, Staten Island (Michelle S. Titone of counsel), for appellant. Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for respondent.

{**17 Misc 3d at 98} OPINION OF THE COURT

Per Curiam.

Order, dated February 6, 2006, affirmed, with $10 costs.

In this action to recover first-party no-fault benefits, plaintiff medical provider was awarded summary judgment on its claims for payment for three MRIs performed on its assignor, following an automobile accident on November 27, 2003. The MRIs revealed injuries to the assignor’s neck, lower back and knee. It is uncontroverted that plaintiff’s claims were timely submitted. Nor is it disputed that defendant insurer issued NF-10 forms within 30 days, contending, as the sole reason for its denials, that the assignor’s injuries did not arise out of the subject automobile accident, a conclusion based exclusively on a written accident reconstruction report (referred to by defendant as a low-impact study). The study’s conclusion that the subject accident posed “no risk of injury” to some unknown “volunteer test subjects” was reached without any consideration of the assignor’s claimed injuries. The motion court granted summary judgment to plaintiff, holding that the low-impact study and the affidavit of the engineer who drafted the report, while admissible, did not suffice to raise triable issues of fact as to whether the assignor’s claimed injuries arose out of the accident.

As a general rule, expert opinion evidence based upon accident reconstruction studies is admissible in common-law negligence actions on issues related to causation. For example, in Valentine v Grossman (283 AD2d 571 [2001]), a negligence action, the testimony of a biomechanical engineer was found probative on the issue of whether an automobile accident was severe enough to have caused the injuries sustained by the plaintiff. The engineer’s opinion therein identified a specific injury, i.e., a herniated disc, and a correlation between the injury and the biomechanics of the accident. Here, by contrast, defendant’s low-impact study was conducted without a medical file review or an independent assessment of the assignor’s claimed injuries, if [*2]indeed they were known when the report was prepared. The only aspect of the report remotely bearing on any causation issue was the conclusory statement that the accident{**17 Misc 3d at 99} “posed virtually no risk of injury to voluntary test subjects.” The issue, therefore, is whether such a study is sufficient to deny summary judgment in a first-party no-fault action where plaintiff has made out a prima facie showing of entitlement to judgment.

In the typical negligence action, plaintiff’s burden of establishing causation is met by a showing that the accident was a proximate cause of the claimed injuries (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). However, in an action to recover first-party no-fault benefits, a plaintiff bears no such burden and establishes his or her prima facie case by proof that the claim form was mailed and received, and that the insurer failed to pay within the 30-day statutory period (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In essence, causation is presumed since “it would not be reasonable to insist that a [medical provider] must prove as a threshold matter that its patient’s condition was ’caused’ by the automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 20 [1999]). Thus, the burden is on the defendant insurer to come forward with proof establishing by “fact or founded belief” its defense that the claimed injuries have no nexus to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

While generally speaking, accident reconstruction evidence may often prove useful in explaining how an accident occurred, its probative value on issues related to causation is limited unless amplified by a meaningful medical assessment of the claimed injuries. This is certainly true in the first-party no-fault scenario, where an insurer disclaiming coverage has the burden of establishing that “the medical condition for which the assignor was treated was not related to the accident at all” (Mount Sinai v Triboro Coach, 263 AD2d at 18-19 [internal quotation marks omitted]). Whether a causative nexus exists between an accident and injury “cannot be resolved without recourse to the medical facts” (id. at 19).

Here, defendant offered no medical evidence whatsoever to demonstrate a lack of causation. It failed to perform a medical examination of plaintiff’s assignor or conduct a peer review of his medical treatment in the aftermath of the accident. Absent from defendant’s denial forms was any allegation that the MRIs were not medically necessary or that plaintiff’s assignor was not injured as described in the MRI reports. Nor did defendant rely on any evidence of an event or ongoing chronic condition in the{**17 Misc 3d at 100} assignor’s past medical history to explain his injuries. Significantly, the low-impact study specifically contains a disclaimer that the engineering consulting firm which produced the report “did not perform a medical file review or an assessment of injuries alleged by [the assignor].”

Defendant’s low-impact study contains a “one size fits all,” generalized “medical” component, which does not explain how the assignor’s injuries are causally incompatible with the subject accident. As the concurring opinion correctly points out, the author of the low-impact study, in the absence of a medical review of plaintiff’s injuries, had no way of knowing whether “the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion” (concurring op at 174).

It bears mention that the low-impact study here under review appears to have been ordered five days before the defendant insurer acknowledged having received the claims for the MRIs. Why an insurer would incur the expense of an accident reconstruction to eliminate an [*3]accident as a cause of injuries before receiving a diagnosis is yet to be explained by defendant. We acknowledge that the no-fault statute, together with the rules and regulations promulgated thereunder, do not distinguish between diagnostic testing and treatment with respect to the denial grounds available to an insurer. However, the purpose of the statutory scheme, to streamline the processing of claims for basic economic loss arising from automobile accidents, necessarily would be frustrated if an insurer could deny reimbursement to a medical provider who performs appropriate diagnostic tests in response to a patient’s complaints, based solely upon a generic brand of accident reconstruction which gives no consideration to the patient’s diagnosis or injuries.

We do not say that there can never be a situation where a low-impact study, standing alone, would suffice to create an issue of fact on causation in a first-party no-fault benefit case. Such a situation might be presented, for example, where an assignor has sustained an identifiable injury, the cause of which is so clearly unrelated to the biomechanics of the accident as to require no corroborative medical proof or where the assignor has not sustained any injury. Such is not the case here.

Finally, the concurring opinion raises an issue neither briefed by the parties nor central to the proper resolution of this case, in taking exception with our (and the motion court’s) description of the defense sought to be raised by the low-impact study{**17 Misc 3d at 101} as a lack of coverage defense, reserving that description for injuries which “predated the accident” (concurring op at 105). Instead, the concurrence would characterize the defense advanced by the insurer, i.e., that the subject injuries were unrelated to the accident, as “a disclaimer based on the breach of a policy condition.” We disagree.

Citing as a source for guidance its previous holdings in Albert J. Schiff Assoc. v Flack (51 NY2d 692 [1980]) and Zappone v Home Ins. Co. (55 NY2d 131 [1982]), the Court of Appeals in Chubb (90 NY2d at 201), characterized as a “coverage matter” medical services rendered to treat injuries that did not arise from a covered accident, reasoning that there was no “insurance in effect” to cover such treatment. This is so whether the uncovered injuries occurred before or after the subject accident, because, simply put, the incident which caused the injuries did not fall within the four corners of the policy. Thus, unlike our concurring colleague, we find no basis to limit the applicability of a lack of coverage defense solely to cases involving “a previous injury or condition” (concurring op at 107).

McCooe, J. (concurring). The majority opinion raises two issues common to numerous first-party no-fault benefit actions, the admissibility of a “low-impact study” and the scope of a Chubb no coverage defense (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Since there may be a disagreement with this court and the Appellate Term, Second and Eleventh Judicial Districts, on the first issue and there is a disagreement with both on the second issue, I am writing separately to state my opinion.

First, since the low-impact study is being rejected as a defense in this summary judgment [*4]motion as a matter of law, I will accept as true the statement of facts relied upon by defendant’s expert, Alfred Cipriani, employed by SEA and the procedures adopted in his project summary which reads in pertinent part:

“I. PROJECT SUMMARY

“PROJECT ASSIGNMENT

“On January 21, 2004, SEA, Ltd. (SEA) was asked to review file material related to a two-vehicle accident that occurred on November 27, 2003, in Bronx, New York. At approximately 6:50 a.m., Mr. Mahamdou Hydara, driving a 1999 Ford Explorer (Ford) owned by Mr. Sulayman Kamara, was traveling southbound on Throgs Neck Expressway, approaching{**17 Misc 3d at 102} the Throgs Neck Bridge toll plaza. A 1991 Volkswagen Jetta (Volkswagen), driven by Ms. Theresa Marone, changed lanes and struck the driver’s side of Mr. Hydara’s Ford. As a result of the impact to his vehicle, Mr. Hydara was allegedly injured. This investigation was assigned to the direction of SEA Technical Consultant/Accident Reconstructionist Alfred L. Cipriani, ACTAR, as SEA Project No. 603622.

“SCOPE OF PROJECT

“Specifically, SEA was asked to consult with respect to this accident, to determine the Ford’s average accelerations, and to compare those results with published crash test studies.

“CONCLUSIONS

“º The average rearward acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 milliseconds (msec) during the collision of November 27, 2003.

“º The average left-to-right acceleration of Mr. Hydara’s Ford was no more than 0.3 g for a duration of approximately 100 msec during the collision of November 27, 2003.

“º The cited scientific research shows that the average accelerations of Mr. Hydara’s Ford posed virtually no risk of injury to volunteer test subjects.

“II. PROCEDURES

“1. SEA reviewed file material related to this accident including:

Ҽ Police Accident Report (NYC) # 3641

Ҽ Report of Motor Vehicle Accident completed by Mr. Hydara

“º Insured’s Supplementary Accident Report completed by Mr. Hydara

Ҽ A repair estimate for the Ford

Ҽ A prior damage estimate for the Ford

Ҽ A description of the accident

Ҽ Four color photocopied photographs of the Ford

Ҽ A copy of the written statement of Mr. Hydara

Ҽ A copy of the written statement of Mr. Kamara

“2. SEA researched specifications and crash test data for the vehicles involved in this accident.

“3. SEA calculated crush stiffness coefficients for{**17 Misc 3d at 103} the vehicles involved in this accident.

“4. SEA performed a low speed impact analysis^[FN1]

“5. SEA reviewed published volunteer test studies involving low speed impacts.”

Cipriani also relied upon Hydara’s statement of facts regarding the accident. The police report indicates that the “cost of repairs to any one vehicle will be more than $1000.00.”

The “Methods of Analysis” is an “engineering analysis of low-speed impacts, depending on the nature of the impact.” There are four types of impacts referred to: bumper to bumper, override and underride, lateral impacts, and sideswipes. While it states that “SEA engineers chose an engineering analysis method most appropriate for the type of impact being studied,” after carefully reviewing the facts, it is not stated which type they are relying on, but I assume it is “lateral impacts” where “it is important to determine the side stiffness for the appropriate vehicle” and “average lateral acceleration must also be reduced by an amount equivalent to the sideways sliding resistence of the vehicle tires.”

Finally the “Signatures” page states that: “SEA did not perform a medical file review or an assessment of injuries alleged by Mr. Hydara. SEA hereby certifies the expressed opinions and conclusions have been formulated within a reasonable degree of professional certainty.”

The Appellate Term, Second and Eleventh Judicial Districts, has held that a low-impact study may constitute a proper basis for denial of a summary judgment motion provided it is in admissible form^[FN2] (see AB Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51347[U] [App Term, 2d & 11th Jud Dists 2006]). It relied on Appellate Division analysis in determining that an accident analysis report is relevant to the issue of causation (see Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50525[U] [App Term, 2d & 11th Jud Dists 2005], [*5]citing Valentine v Grossman, 283 AD2d 571 [2d Dept 2001]). Furthermore, referring to the coverage defense, a low-impact study has been found to be “sufficient to demonstrate{**17 Misc 3d at 104} that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured accident’ ” (Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50525[U],*2 [2005],^[FN3] quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

The first issue here is whether Cipriani’s affidavit, together with the low-impact study report, were sufficient to raise an issue of fact to defeat plaintiff’s motion for summary judgment. After analyzing the police report, repair estimates, written statements made by the drivers, and photographs of the Ford, Cipriani opined that the “average acceleration of [assignor’s] Ford posed virtually no risk of injury to volunteer test subjects.” There is no indication that he factored in the Ford striking the toll booth barrier as affecting the “average acceleration.” He did not (1) calculate the forces generated by the accident, (2) correlate the forces to the injuries allegedly sustained by the plaintiff nor (3) conclude that there was not enough force generated in the collision to cause said injuries (cf. Valentine v Grossman, 283 AD2d at 572 [biomechanical experts correlated the forces generated by the collision to the injuries allegedly sustained by the injured plaintiff and opined that there was not enough force generated to cause said injuries]).

The low-impact study report states that neither a medical file review nor an assessment of the injuries alleged by the plaintiff was performed and did not indicate whether the plaintiff was wearing a seat belt. Therefore he did not know if the claimed injuries were merely bruises and contusions or a fracture when he arrived at his conclusion. This distinguishes Valentine v Grossman (283 AD2d 571 [2001]), where the expert rendered an opinion as to whether there was sufficient force to cause a herniated disc.

Cipriani’s study is general and not specific to the plaintiff but to “volunteer test subjects” whose age and state of health is not indicated so as to form a proper basis for comparison. The report does not and could not explain how the low-impact test results demonstrated that the unknown plaintiff’s injuries were unrelated to the subject accident. While Cipriani opined that the acceleration of the plaintiff’s vehicle “posed virtually no risk of injury,” he did not give an opinion as to whether this particular accident caused the injuries allegedly sustained by the plaintiff.{**17 Misc 3d at 105} Therefore the study was too vague and conclusory to raise a triable issue of fact or to support the defendant’s conclusion that the accident was not severe enough to have caused the injuries allegedly sustained (see Bender v Gross, 33 AD3d 417 [1st Dept 2006]; Maggiotta v Walsh, 306 AD2d 447 [2d Dept 2003] [vague and conclusory expert affidavit submitted in opposition to summary judgment motion failed to raise a triable issue of fact regarding causation]).

The second issue is whether the defense raised is properly a lack of coverage defense as discussed in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) or a disclaimer based on the breach of a policy condition. I disagree with the majority and the Appellate Term, Second and Eleventh Judicial Districts, that it is a lack of coverage defense. Furthermore it should not be an issue here since neither the Civil Court nor the parties contend that it is. This should explain why the “description of the defense . . . as a lack of coverage defense” (majority op at100-101) first raised by the majority was not briefed. The defendant timely filed three denial of claim forms within the [*6]30-day rules and regulation period which read in part: “the results of a low-impact study conducted by this company, has shown that the injuries you allege are not related to the motor vehicle accident of 11/27/2003 and are inconsistent with a collision of this nature . . . .”

Nevertheless, since the majority agrees with the Appellate Term, Second and Eleventh Judicial Districts, on this issue, I will explain the reasons for my disagreement. The principal reason is that the “exceptional exemption” granted in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) when the insurer fails to timely disclaim should be limited to factual situations where the defense is that the injuries predated the accident in order to find that they were “causally unrelated to the accident.”

The relevant portion of the decision in Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co. (7 Misc 3d 129[A], 2005 NY Slip Op 50525[U],*1-2 [2005]) reads:

“Inasmuch as defendant failed to pay or deny the claim within the 30-day [prescribed] period [11 NYCRR 65-3.8(c), and did not adequately establish that such period was extended by its issuance of a timely request for verification (11 NYCRR 65-3.5 [a], [b])], it [was] precluded from raising most defenses{**17 Misc 3d at 106} (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant [was] not precluded from asserting the defense that the alleged injuries were . . . causally [un]related to the accident [despite the untimely denial of the claim] (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The ‘Accident Analysis’ report, referred to by defendant as a ‘Low Impact Study’ [accompanied by an affidavit] of the Technical Consultant/Accident Reconstructionist who prepared the report . . . was sufficient to demonstrate that the defense was based upon a ‘founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident‘ (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199 . . . ). [Accordingly], since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment [should not have been granted and the matter is remanded for further proceedings].” (Emphasis added.)

The Ocean case clearly expresses the legal issues under discussion. The two cases relied upon in Ocean are Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) and Mount Sinai Hosp. v Triboro Coach (263 AD2d 11 [1999]).

I agree that the Ocean case cites the applicable law but I disagree with the interpretation and that they are factually similar to Ocean or this case. They are both factually dissimilar because both defendants in the cited cases claimed that there was no coverage because the claimed injury predated the accident. The defendant in Chubb successfully claimed that the “injuries were sustained in a separate work-related accident about a year prior to the automobile accident” and the Court found that the untimely disclaimer was an “exceptional exemption” that did not prevent the defendant from raising the lack of coverage defense because the injury was unrelated to the accident (Chubb, 90 NY2d at 198). [*7]

The defendant in Mount Sinai unsuccessfully claimed that the plaintiff’s condition was entirely unrelated to the accident because she “had previously suffered from an unspecified ‘brain disorder . . . manifested by seizures and hospitalizations’ ” and her condition was not incurred in the accident (Mount Sinai,{**17 Misc 3d at 107} 263 AD2d at 14). The Court held that the “exceptional exemption” from preclusion for failure to timely disclaim “applies only where the medical condition for which the patient was treated was not ‘related to the accident at all’ ” (Mount Sinai, 263 AD2d at 18-19). The Court goes on to state that the issue cannot be resolved without resort to the medical facts and that the “defendant has the burden to come forward with proof in admissible form to establish ‘the fact’ or the evidentiary ‘found[ation for its belief]’ that the patient’s treatment was unrelated to his or her automobile accident” (Mount Sinai, 263 AD2d at 19-20). Speaking as to the need for medical proof, the Court goes on to state, “Indeed, this case is a vivid illustration of why an expert’s affidavit will usually be necessary to effectively establish the basis of an insurer’s founded belief” (Mount Sinai, 263 AD2d at 20).

Based upon the foregoing, I disagree that a “low-impact study” can be the basis for a “founded belief” that the alleged injuries are “not related to the accident at all” and form the basis for a lack of coverage defense. This “exceptional exemption” first spelled out in Chubb and later in Mount Sinai only applies where the defendant comes forward with medical proof for its founded belief that the medical treatment was not related to the accident at all “but to a previous injury or condition.”

The overly broad characterization of a breach of policy condition or policy exclusion as a coverage defense nullifies the 30-day disclaimer rule.

McKeon, P.J., and Schoenfeld, J., concur; McCooe, J., concurs in a separate opinion.

Footnotes

Footnote 1: A. Toor et al., Practical Analysis Technique for Quantifying Sideswipe Collisions, SAE Paper 1999-01-0094, 1999.

Footnote 2: The Civil Court determined that Mr. Cipriani’s affidavit, which referenced and attached the low-impact study report, was in admissible form and plaintiff does not challenge this finding or the admissibility of the report.

Footnote 3: The Ocean case will be discussed in greater detail on the coverage issue.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed without costs.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claim for first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319 [1994]; Matter of Shand
[Aetna Ins. Co.], 74 AD2d 442 [1980]). Consequently, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]), and we modify the judgment accordingly.

Pesce, P.J., Golia and Rios, JJ., concur. [*2]
Decision Date: October 10, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered December 8, 2005. The judgment denied the petition to vacate the master arbitrator’s award.

Judgment modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, affirmed with $25 costs to respondent.

Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award which denied petitioner’s claims for assigned first-party no-fault benefits (see e.g. Matter of Petrofsky [Allstate Ins. Co.], 54
NY2d 207 [1981]; Matter of Shand [Aetna Ins. Co.], 74 AD2d 442 [1980]). Accordingly, the court below properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur. [*2]
Decision Date: October 03, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered May 27, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an employee of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s employee stated in a conclusory manner that the documents attached to plaintiff’s motion papers were “true and correct cop[ies]
of what was sent to Defendant.” The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff’s employee was legally insufficient. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s employee was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: October 03, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered March 8, 2006. The order granted defendant’s motion to vacate a default judgment and directed plaintiff to accept defendant’s answer as timely.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, it is undisputed that defendant served an untimely answer and that more than two months later, plaintiff sought and obtained a default judgment. Defendant moved to vacate the default judgment and to compel plaintiff to accept its answer. Defendant’s motion was granted and this appeal by plaintiff ensued.

A plaintiff’s retention of an answer without a timely objection, such as occurred herein, constitutes a waiver of objection as to untimeliness and such a waiver precludes the grant of a default judgment (Wittlin v Schapiro’s Wine Co., 178 AD2d 160 [1991]; Neurology and Acupuncture Service, P.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52517[U] [App Term, 2d & 11th Jud Dists]; A.M.B. Med., P.L.L.C. v Lumbermens Mut. Cas. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52519[U] [App Term, 2d & 11th Jud Dists]; Abernathy v Ali, 3 Misc 3d 136[A], 2004 NY Slip Op 50509[U] [App Term, 2d & 11th Jud Dists]; cf. Celleri v Pabon, 299 AD2d 385 [2002]). Accordingly, vacatur of the “default” judgment was warranted without regard to whether defendant demonstrated a meritorious [*2]defense.

In view of the foregoing, the court below providently exercised its discretion in granting defendant’s motion to vacate the default judgment.

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

Golia, J., taking no part.
Decision Date: October 02, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands. Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126
(3) due to plaintiff’s inadequate response to defendant’s discovery demands, its failure to amend or supplement the incomplete and/or inadequate responses which defendant rejected and its failure to offer any response to defendant’s supplemental interrogatories or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.

Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. [*2]Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its utterly inadequate response to defendant’s discovery demands, its failure to supplement or amend its responses after they were rejected by defendant, its failure to offer any response to defendant’s supplemental interrogatories and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 28, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to strike the complaint pursuant to CPLR 3126 to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial.

Appeal from so much of the order as granted defendant’s cross motion to the extent of compelling plaintiff to respond to defendant’s discovery demands and to appear for an examination before trial dismissed.

Order, insofar as reviewed, affirmed without costs. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved to, inter alia, strike the complaint pursuant to CPLR 3126 due to plaintiff’s failure to provide discovery. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce plaintiff’s principal for an examination before trial. The instant appeal by plaintiff ensued.

We do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto. In opposition to plaintiff’s motion, defendant stated that plaintiff may be improperly licensed and, if so, plaintiff would be ineligible to receive reimbursement of no-fault benefits (see 11 NYCRR 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Defendant further asserted that while facts essential to justify opposition to plaintiff’s motion for summary judgment may exist, defendant was unable to set forth sufficient facts to establish this defense since such information was within plaintiff’s possession and plaintiff had not complied with defendant’s discovery demands (see CPLR 3212 [f]). Plaintiff made no attempt in its reply papers to refute defendant’s argument. Consequently, the branch of the order which denied plaintiff’s [*3]
motion for summary judgment is affirmed (see id.; Midborough Acupuncture P.C. v State Farm Ins. Co., 13 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2006]).

Moreover, since plaintiff failed to submit written opposition to defendant’s cross motion to compel disclosure, that branch of the order which granted defendant’s cross motion to the extent of compelling plaintiff to provide responses to defendant’s discovery demands and to produce Philip D. Goldstein for an examination before trial was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendant’s cross motion to compel disclosure is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 23, 2006. The order denied defendant’s unopposed motion, pursuant to CPLR 3126, seeking an order striking the complaint due to plaintiff’s failure to provide discovery or, in the alternative, compelling plaintiff to provide discovery.

Order reversed without costs and defendant’s motion to strike plaintiff’s complaint granted.

Plaintiff commenced the instant action to recover assigned first-party no-fault benefits. After issue was joined, defendant served various discovery demands.
Subsequently, defendant moved to strike plaintiff’s complaint pursuant to CPLR 3126 (3) due to plaintiff’s failure to respond to defendant’s discovery demands or, in the alternative, for an order compelling plaintiff to comply with the discovery demands. Although plaintiff failed to oppose the motion, the court nevertheless denied defendant’s motion and this appeal by defendant ensued.

Defendant’s motion papers were sufficient to demonstrate that plaintiff may be ineligible to receive reimbursement for no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) and that the discovery sought was material and necessary to defendant’s defense of this action (CPLR 3101; see also Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 15 Misc 3d 110 [App Term, 2d & 11th Jud Dists 2007]; Midwood Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 130[A], 2006 NY Slip Op 52523[U] [App Term, 2d & 11th Jud Dists]; North Acupuncture, P.C. v State Farm Ins. Co., 14 Misc 3d 129[A], 2006 NY Slip Op 52512[U] [App Term, 2d & 11th Jud Dists]; First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists]). “Although dismissing a complaint pursuant to CPLR 3126 is [*2]a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious, or in bad faith (see Beneficial Mtge. Corp. v Lawrence, 5 AD3d 339 [2004], lv denied 3 NY3d 602 [2004]; Frias v Fortini, 240 AD2d 467 [1997])” (Rowell v Joyce, 10 AD3d 601, 601 [2004]). In this case, the willful and contumacious character of plaintiff’s conduct can be inferred from its failure to respond to defendant’s discovery demands and its failure to submit written opposition to defendant’s motion to strike the complaint (see Devito v J & J Towing, Inc., 17 AD3d 624 [2005]; Rowell v Joyce, 10 AD3d 601, supra). Consequently, under these circumstances, defendant’s motion to strike the complaint pursuant to CPLR 3126 (3) should have been granted.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: September 14, 2007