Decided on November 2, 2018

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

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 16, 2015. 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 16, 2015, the Civil Court denied defendant’s motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “Defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

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

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

Decided on November 2, 2018

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

Decided on November 2, 2018

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

Gary Tsirelman, P.C. (Joseph Padrucco and Devon Christian of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Marisa Villafana-Jones 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 March 10, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

After plaintiff filed a notice of trial in this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint. Plaintiff opposed the motion arguing, among other things, that the motion was untimely. In reply papers, defendant conceded that its motion was untimely and, for the first time, sought to provide good cause for its untimely filing of the motion. By order entered March 10, 2017, the Civil Court found “defendant’s motion to be timely,” and granted the motion.

CPLR 3212 (a) provides that a motion for summary judgment “shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown” (see also Brill v City of New York, 2 NY3d 648, 651 [2004]). On appeal, as in the court below, defendant concedes that it moved for summary judgment more than 120 days after the notice of trial had been filed. Defendant argues that it had been unaware that the motion was late until it read plaintiff’s opposition papers, after which it submitted reply papers in which it sought to provide good cause for the late motion. Since defendant failed to demonstrate, in its moving papers, good cause for not filing its motion within the time frame of CPLR 3212 (a), the Civil Court improvidently exercised its discretion in entertaining defendant’s motion after considering the good cause arguments defendant raised for the first time in its reply papers (see [*2]Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869 [2016]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578, 579 [2013]). We note that “[a]rguments raised for the first time in reply may be considered if the original movant is given the opportunity to respond and submits papers in surreply” (Gluck v New York City Tr. Auth., 118 AD3d 667, 668 [2014]). In the case at bar, however, “there is no indication that plaintiff was afforded an opportunity to submit a surreply” (Gottlieb v Wynne, 159 AD3d 799, 801 [2018]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Defendant, as limited by its brief, appeals from so much of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered September 28, 2017, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Debra Rose Samuels, J.), entered September 28, 2017, insofar as appealed from, reversed, with $10 costs, motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it timely denied plaintiff’s first-party no-fault claims based on a sworn independent examination report [IME] of its examining acupuncturist/chiropractor, which set forth a factual basis and medical rationale for her stated conclusion that the assignor’s injuries were resolved and that there was no need for further acupuncture treatment (see Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A], 2015 NY Slip Op 50900[U][App Term, 1st Dept 2015]); Utica Acupuncture, P.C. v Interboro Ins. Co., 39 Misc 3d 139[A], 2013 NY Slip Op 50643[U] [App Term, 1st Dept 2013]).

In opposition, the affidavit of plaintiff’s principal failed to raise a triable issue since it was not based on an examination of the assignor, nor did it meaningfully rebut the findings of defendant’s examining acupuncturist/chiropractor, including the normal results of the range of motion testing (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421 [2016]; Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 156[A]). Nor did the assignor’s subjective complaints of pain overcome the objective medical tests detailed in the IME report (see Arnica Acupuncture PC v Interboard Ins. Co., 137 AD3d 421; TC Acupuncture, P.C. v Tri-State Consumer Ins. Co., 52 Misc 3d 131[A], 2016 NY Slip Op 50978[U] [App Term, 1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on September 17, 2018

Law Office of Peter C. Merani, P.C. (Eric M. Wahrburg of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 18, 2014, deemed from a judgment of that court entered November 12, 2015 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 18, 2014 order denying defendant’s motion for summary judgment dismissing the complaint and granting the branches of plaintiff’s cross motion seeking summary judgment and costs, awarded plaintiff the principal sum of $3,793.02 and, among other things, “other costs” in the amount of $250.

ORDERED that the judgment is reversed, without costs, so much of the order entered June 18, 2014 as granted the branches of plaintiff’s cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff’s cross motion are denied.

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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations, and plaintiff cross-moved for summary judgment and for costs and attorney’s fees. By order entered June 18, 2014, the Civil Court denied defendant’s motion and granted the branches of plaintiff’s cross motion seeking summary judgment and costs. A judgment awarding plaintiff the principal sum of $3,793.02 and, among other things, “other costs” in the amount of $250, was entered on November 12, 2015. Plaintiff’s appeal from the June 18, 2014 order is deemed to be from the judgment entered pursuant thereto (see CPLR 5501 [c]).

As defendant’s moving papers failed to establish, as a matter of law, that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) its denial of claim forms, the Civil Court properly determined that defendant was not entitled to summary judgment dismissing the complaint.

We further find that plaintiff’s cross motion papers did not establish either that defendant had failed to timely deny the claims 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 § 5102 [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]). As plaintiff failed to establish its prima facie case, the branch of its cross motion seeking summary judgment should have been denied. We note that plaintiff failed to demonstrate that defendant or its counsel had engaged in sanctionable conduct (see 22 NYCRR 130-1.1 [c]). Consequently, we also deny the branch of plaintiff’s cross motion seeking costs.

Accordingly, the judgment is reversed, so much of the order entered June 18, 2014 as granted the branches of plaintiff’s cross motion seeking summary judgment and costs is vacated, and those branches of plaintiff’s cross motion are denied.

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

Decided on July 13, 2018

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

Bryan, Cave, Leighton, Paisner, LLP (William T. O’Connell and Daniel Klein of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 16, 2015. The order denied defendant’s motion to vacate a default judgment of that court entered December 3, 2013 upon defendant’s failure to proceed at trial.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment is granted.

In this action by a provider to recover assigned first-party no-fault benefits arising out of an accident that occurred on December 21, 2009, defendant moved to vacate a judgment, entered December 3, 2013, that had apparently been entered upon its failure to proceed at trial on December 17, 2012. In support of its motion, defendant submitted an affidavit by plaintiff’s assignor in which plaintiff’s assignor admitted that the December 21, 2009 accident underlying this no-fault proceeding had been staged, and an order dated April 26, 2013, from the Supreme Court, New York County, in a declaratory judgment action, entered on default, finding that defendant herein had no duty to pay any no-fault benefits to plaintiff herein and its assignor, among others, with respect to this accident. The Civil Court denied defendant’s motion, finding that defendant had failed to establish a reasonable excuse for its failure to proceed at trial.

Defendant’s motion should have been granted, as defendant demonstrated both a reasonable excuse for its failure to proceed at trial and a meritorious defense (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment is granted.

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