Decided on July 12, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on July 11, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Decided on June 28, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Rivkin Radler, LLP (Cheryl F. Korman and Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered July 28, 2017. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 appeals, as limited by its brief, from so much of an order of the Civil Court entered July 28, 2017 as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for scheduled examinations under oath (EUOs).

The record indicates that, in response to defendant’s EUO requests, plaintiff sent letters essentially stating that it would not appear for the requested EUOs unless defendant set forth its reasons for requesting the EUOs. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion, as it found that there was a triable issue of fact as to “whether Defendant’s request for EUO was made in good faith, under objective standards.”

“No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept [*2]No. 02-10-14 [October 2002]). The Department of Financial Services’^[FN1] interpretation of the No-Fault Regulations is entitled to deference unless “irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]; see also Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Thus, defendant “was not required to provide the reason for its demand” either in its scheduling letters or, by extension, “in response to an objection from plaintiff” (Dynamic Balance Acupuncture, P.C. v State Farm Ins., 62 Misc 3d 145[A], 2019 NY Slip Op 50171[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: June 28, 2019

Footnotes

Footnote 1: In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services.”

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Goldberg, Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered March 16, 2017. The judgment, insofar as appealed from, after a nonjury trial, dismissed the second, third, fourth, sixth and eighth causes of action.

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited to whether the services at issue were medically necessary. The trial court entered into evidence the claim forms and denial of claim forms, and the parties stipulated to the expertise of defendant’s peer review doctor as a board certified internist. The doctor testified that the services provided by plaintiff lacked medical necessity. Plaintiff rested its case without calling any witnesses. Plaintiff appeals from so much of a judgment entered March 16, 2017 as dismissed the second, third, fourth, sixth and eighth causes of action.

Since defendant sufficiently rebutted the presumption of medical necessity (see Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 21 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]) and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the services at issue were medically necessary (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), we find no basis to disturb the Civil Court’s finding with respect thereto (see Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50937[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment, insofar as appealed from, is affirmed.

Gary Tsirelman, P.C. (Jung Pryjma of counsel), for appellant. McDonald, Safranek & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (John J. Kelley, J.), entered April 21, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In October 2015, plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which had occurred on January 11, 2011. The injured party had assigned the no-fault benefits to plaintiff on September 21, 2011. Defendant moved for summary judgment dismissing the complaint or for an order staying the action, as defendant had commenced a declaratory judgment action in the Supreme Court, Onondaga County, against the assignor and numerous medical providers other than plaintiff herein, seeking a declaration that the accident in question was not a covered incident under the insurance policy. Plaintiff opposed the motion. In further support of the motion, defendant proffered an order of the Supreme Court, dated August 2, 2016, declaring that the insurer (defendant herein) is not required or obligated to provide no-fault benefits to the assignor (and numerous named providers, other than plaintiff) arising out of the January 11, 2011 accident, and defendant argued that, consequently, plaintiff’s action in the Civil Court is barred. Plaintiff appeals from an order of the Civil Court entered April 21, 2017 which granted defendant’s motion based upon the order in the declaratory judgment action and dismissed plaintiff’s complaint with prejudice.

“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., [*2]140 AD3d 912, 913-914 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). In the case at bar, as the injured party’s assignment to plaintiff was made on September 21, 2011, after the commencement in August 2011 of the declaratory judgment action, plaintiff is deemed to be in privity with the assignor and “charged with notice that [its] rights to the assignment are subject to the competing claim” (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 487 [1979]). Consequently, in light of the Supreme Court’s order, the Civil Court properly granted defendant’s motion for summary judgment (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY 304; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C., 38 Misc 3d 1).

Accordingly, the order is affirmed.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

Decided on June 19, 2019

Decided on June 14, 2019

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. With respect to the third, fifth and seventh causes of action, defendant claimed that the limits of the Florida insurance policy involved herein had been exhausted prior to defendant’s receipt of the claims underlying those three causes of action. With respect to the first, second, fourth and sixth causes of action, which constituted the remaining causes of action, defendant claimed that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule.

Defendant failed to establish with admissible evidence that Florida law applies and, thus, [*2]that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies, defendant relied upon a payment log to demonstrate that the policy limits had been exhausted; however, the affidavits submitted by defendant failed to establish that the annexed payment log constituted admissible evidence of exhaustion (see CPLR 4518; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the third, fifth and seventh causes of action.

The evidence proffered by defendant in support of the branches of its cross motion seeking summary judgment dismissing the first, second, fourth and sixth causes of action was sufficient to demonstrate that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s arguments which are made for the first time on appeal are not properly before us (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider them.

The branches of plaintiff’s motion seeking summary judgment on the third, fifth and seventh causes of action were properly denied, as the proof submitted by plaintiff failed to establish that those claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for appellant. The Rybak Firm, PLLC (Karina Barska of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 31, 2017. The judgment, entered pursuant to an order of that court entered August 2, 2017 granting plaintiff’s motion for the entry of a default judgment and denying defendant’s cross motion to dismiss the action, awarded plaintiff the principal sum of $1,511.04.

ORDERED that, on the court’s own motion, the notice of appeal from the order dated August 2, 2017 is deemed a premature notice of appeal from the judgment entered October 31, 2017 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, the order dated August 2, 2017 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion to dismiss the action is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the action without prejudice.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. In support of plaintiff’s motion for the entry of a default judgment, its counsel stated that [*2]defendant’s time to answer had expired. However, plaintiff’s papers do not contain an acknowledgment of service. Defendant cross-moved to dismiss the action on the ground that plaintiff had failed to serve a summons and complaint within 120 days of the commencement of the action (see CCA 411). By order entered August 2, 2017, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from the order. A judgment was subsequently entered on October 31, 2017 awarding plaintiff the principal sum of $1,511.04. We deem defendant’s notice of appeal from the order to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

Proof that a defendant was properly served with process is a prerequisite to the entry of a default judgment against that defendant (see CPLR 3215 [f]; Cordero v Barreiro-Cordero, 129 AD3d 899 [2015]). “Service of the summons [is] complete . . . in the case of service pursuant to CPLR 312-a, by filing the acknowledgment of receipt, which constitutes proof of service (CPLR 312-a [b] [1]; 306 [d])” (Richard A. Hellander, M.D., P.C. v Metlife Auto & Home Ins. Co., 48 Misc 3d 59, 61-62 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [internal quotation marks omitted]). Here, the record fails to demonstrate that an acknowledgment of receipt was subscribed and affirmed as true under penalty of perjury by defendant (see CPLR 312-a [c]) and returned to plaintiff. Since plaintiff did not attempt another manner of service, plaintiff failed to acquire personal jurisdiction over defendant (see CPLR 312-a [e]; Klein v Educational Loan Servicing, LLC, 71 AD3d 957 [2010]; Dominguez v Stimpson Mfg. Corp.,207 AD2d 375 [1994]; Gateway Med., P.C. v Progressive Ins. Co., 30 Misc 3d 144[A], 2011 NY Slip Op 50336[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), and defendant’s cross motion to dismiss the action is granted (see CCA 411).

Accordingly, the judgment is reversed, the order entered August 2, 2017 is vacated, plaintiff’s motion for the entry of a default judgment is denied, defendant’s cross motion to dismiss the action is granted, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the action without prejudice.

SIEGAL, J.P., PESCE and ELLIOT, JJ., concur.

Robyn M. Brilliant, P.C. (Robyn M. Brilliant of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 2, 2017. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin and granted the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin and granted the branch of plaintiff’s cross motion seeking summary judgment on that portion of the complaint. Contrary to the determination of the Civil Court, the proof submitted by defendant was sufficient to establish the proper mailing of the examination under oath (EUO) scheduling letters sent to Cobin (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). However, the affidavit of defense counsel’s legal assistant failed to establish that he possessed personal knowledge that Cobin had not appeared for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant failed to make a prima facie showing that it was entitled to summary judgment dismissing the claims submitted by plaintiff as assignee of Cobin. We note that the Civil Court did not improvidently exercise its discretion in considering the papers submitted by plaintiff in opposition to defendant’s motion, even though the opposition papers had been untimely served pursuant to the parties’ stipulation, as defendant was able to submit reply papers (see Hsu v Shields, 111 AD3d 674 [2013]; Kavakis v Total Care Sys., 209 AD2d 480 [1994]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit of plaintiff’s owner submitted in support of its cross motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover upon claims as assignee of Rhonda Cobin is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.