Decided on May 25, 2018

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

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Russell, Friedman & Associates (Dara C. Goodman of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), dated July 12, 2017. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action by an attorney-verified complaint to recover assigned first-party no-fault benefits in March 2011. Defendant interposed an answer on June 23, 2011. On December 1, 2016, defendant served a 90-day written demand pursuant to CPLR 3216 (b) (3). On May 3, 2017, defendant moved pursuant to CPLR 3216 to dismiss the complaint as it had not been served with a notice of trial. On May 5, 2017, plaintiff served defendant with a notice of trial. Plaintiff’s counsel’s affirmation in opposition to defendant’s motion stated that the “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action.” By order dated July 12, 2017, the District Court denied the motion.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Here, plaintiff’s bare statement in its attorney’s affirmation, after a two-month delay in responding to defendant’s 90-day notice, that its “delay in responding to [defendant’s] 90-day notice was neither willful nor contumacious, and does not evidence an intent to abandon the action,” failed to establish a justifiable excuse for its delay. Additionally, plaintiff’s attorney asserted no meritorious cause of action.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

Decided on May 18, 2018

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

Decided on May 18, 2018

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

Decided on May 18, 2018

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

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 14, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $883.80 is granted, and the matter is remitted to the Civil Court for a new determination of the remaining branches of defendant’s motion in accordance herewith.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on various grounds, including plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), material misrepresentation, and that plaintiff was seeking to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. By order entered July 14, 2015, the Civil Court found, in effect pursuant to CPLR 3212 (g), that defendant had established the assignor’s failure to appear for the IMEs and, in effect, that defendant had established the timely and proper mailing of its denials, and held that the only remaining issues for trial were plaintiff’s prima facie case and whether defendant had mailed the IME scheduling letters to plaintiff’s assignor. Defendant appeals, arguing that it is entitled to summary judgment [*2]dismissing the complaint based upon plaintiff’s assignor’s failure to appear for IMEs.

Three of the claims at issue in this case, seeking the sums of $1,062.11, $1,420.16 and $1,420.16, respectively, were denied on grounds other than plaintiff’s assignor’s failure to appear for IMEs. Consequently, as plaintiff argues, defendant did not preserve its IME no-show defense as to those claims and, thus, it is not entitled to summary judgment dismissing those claims on that ground (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). As a result, the branches of defendant’s motion seeking to dismiss those claims must be remitted to the Civil Court for a new determination based upon the remaining grounds raised in defendant’s summary judgment motion, which grounds were not addressed by the Civil Court.

However, contrary to plaintiff’s argument as to the remaining claim, for $883.80, defendant’s proof was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, defendant’s proof sufficiently established that it had properly mailed the IME scheduling letters to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As plaintiff has not challenged the Civil Court’s determination that defendant is otherwise entitled to judgment on this claim, the branch of defendant’s motion seeking summary judgment dismissing this claim should have been granted.

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $883.80 is granted, and the matter is remitted to the Civil Court for a new determination of the remaining branches of defendant’s motion in accordance herewith.

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

Decided on May 18, 2018

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 Rubin & Nazarian (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), dated July 27, 2015. The order, insofar as appealed from, upon, in effect, renewal, adhered to a prior determination in an order of that court entered December 11, 2014 which, among other things, conditionally granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order dated July 27, 2015, insofar as appealed from, is affirmed, with $25 costs.

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, arguing that plaintiff’s assignor had been injured during the course of employment. By order entered December 11, 2014, the Civil Court granted defendant’s cross motion to the extent of holding the case in abeyance for 90 days pending the filing of an application to the Workers’ Compensation Board (Board). The court further stated that if plaintiff failed to file proof of such application with the court, defendant’s cross motion for summary judgment dismissing the complaint shall be granted.

Plaintiff subsequently moved for leave to renew and, upon renewal, for summary judgment and to deny defendant’s cross motion for summary judgment dismissing the complaint. Defendant opposed plaintiff’s motion, noting that plaintiff had failed to comply with the Civil [*2]Court’s prior order in that plaintiff did not file an application to the Board and that, while plaintiff had submitted a form to the Board entitled “Claimant’s Authorization to Disclose Workers’ Compensation Records,” not only did this submission fail to comply with the Civil Court’s order, it was also made over 100 days after the Civil Court’s order. By order dated July 27, 2015, the Civil Court, upon, in effect, renewal, adhered to its prior determination.

Since plaintiff did not demonstrate that it had complied with the Civil Court’s order and made a proper application to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]), the order dated July 27, 2015, insofar as appealed from, is affirmed.

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

Rivkin Radler, LLP (Cheryl F. Korman and 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 (Katherine A. Levine, J.), entered March 27, 2015. The order, insofar as appealed from, 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). By order entered March 27, 2015, the Civil Court denied the motion, but 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 issues for trial were plaintiff’s prima facie case and “[defendant’s] procedure for receipt of the bills in Georgia and processing and transmittal to and in [defendant’s] Ballston Spa [office].” 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 challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant. However, a review of the record establishes that the Civil Court correctly determined 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. As a result, the Civil Court should have granted defendant’s motion for summary judgment. We 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.

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 May 18, 2018

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