Reported in New York Official Reports at Country-Wide Ins. Co. v GEICO Gen. Ins. Co. (2017 NY Slip Op 50460(U))
| Country-Wide Ins. Co. v GEICO Gen. Ins. Co. |
| 2017 NY Slip Op 50460(U) [55 Misc 3d 133(A)] |
| Decided on April 12, 2017 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on April 12, 2017
PRESENT: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.
570850/16
against
GEICO General Insurance Company, Respondent-Respondent.
Petitioner, 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 (Jose A. Padilla, J.), entered June 1, 2016, as denied its petition to confirm an arbitration award dated November 17, 2015, and granted respondent’s cross-petition to confirm an arbitration award dated January 29, 2016.
Per Curiam.
Order (Jose A. Padilla, J.), entered June 1, 2016, affirmed, with $10 costs.
The cross-petition to confirm the arbitration award dated January 29, 2016 was properly granted. The arbitrator’s determination that respondent GEICO was entitled to recoup no-fault benefits paid through “loss transfer” reimbursement was supported by the evidence and was not arbitrary and capricious (see Matter of DTG Operations, Inc. v AutoOne Ins. Co., 144 AD3d 422 [2016]; Matter of Emerald Claims Mgt. for Ullico Cas. Ins. Co. v A. Cent. Ins. Co., 121 AD3d 481, 482 [2014]).
Contrary to the appellant’s contention that the arbitrator improperly considered new evidence, the prior arbitration award expressly provided that GEICO “should not be precluded from re-filing with additional evidence.” In any event, any purported mistake by the arbitrator in considering certain evidence was not “so gross or palpable as to establish fraud or misconduct” (Korein v Rabin, 29 AD2d 351, 356 [1968]; CPLR 7511[b][1][i]), and did not, by itself, provide a sufficient basis for vacatur (see Matter of Utica Mut. Ins. Co. v Incorporated Vil. of Floral Park, 262 AD2d 565 [1999]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: April 12, 2017
Reported in New York Official Reports at Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))
| Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. |
| 2017 NY Slip Op 50345(U) [55 Misc 3d 127(A)] |
| Decided on March 24, 2017 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 24, 2017
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570521/16
against
Clarendon National Ins. Co., Defendant-Appellant.
Defendant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered February 27, 2015, which denied its motion for summary judgment.
Per Curiam.
Order (Debra Rose Samuels, J.), entered February 27, 2015, insofar as appealed from, affirmed, with $10 costs.
This action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The proof submitted by defendant was insufficient to establish, prima facie, that the amounts charged by plaintiff for the services rendered exceeded the rates set forth in the workers’ compensation fee schedule (see Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127[A], 2012 NY Slip Op 52351[U] [App Term, 1st Dept 2012]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]; MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]).
Contrary to plaintiff’s contention, the proof submitted establishes that plaintiff’s bill for services in the amount of $1,495 was timely denied, inasmuch as the 30-day statutory period was tolled by defendant’s timely verification and follow-up requests (see 11 NYCRR 65-3.8[a][1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 24, 2017
Reported in New York Official Reports at Utopia Equip., Inc. v Infinity Ins. Co. (2017 NY Slip Op 50332(U))
| Utopia Equip., Inc. v Infinity Ins. Co. |
| 2017 NY Slip Op 50332(U) [55 Misc 3d 126(A)] |
| Decided on March 20, 2017 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 20, 2017
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570581/16
against
Infinity Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered June 26, 2015, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Carol R. Feinman, J.), entered June 26, 2015, reversed, with $10 costs, motion granted and complaint dismissed.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been granted. Defendant established, prima facie, that the underlying Florida automobile insurance policy had been properly rescinded ab initio, in accordance with Florida law, and that there was therefore no coverage available to plaintiff’s assignor. Defendant’s submissions included an affidavit of its litigation specialist and other proof demonstrating that a rescission notice was sent to the assignor-insured and that defendant had returned all premiums paid within a reasonable time after discovery of the grounds for rescinding the policy (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d, 11th & 13th Jud Dists 2012], citing Leonardo v State Farm Fire & Cas. Co., 675 So 2d 176, 179 [Fla 1996]; see also Hu-Nam-Nam v Infinity Ins. Co., 51 Misc 3d 130[A], 2016 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists 2016]). Contrary to the conclusion reached below, defendant was not required to establish the basis for the retroactive rescission, but rather had the burden of establishing that it complied with the law of the sister state which permits retroactive rescission (see Craigg v Infinity Select Ins. Co., 38 Misc 3d 56, 58 [App Term, 2d, 11th & 13th Jud Dists 2013]).
In opposition to defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact. We do not reach plaintiff’s present arguments which were not raised below, and are thus unpreserved for appellate review.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 20, 2017
Reported in New York Official Reports at Utica Acupuncture P.C. v Amica Mut. Ins. Co. (2017 NY Slip Op 50331(U))
| Utica Acupuncture P.C. v Amica Mut. Ins. Co. |
| 2017 NY Slip Op 50331(U) [55 Misc 3d 126(A)] |
| Decided on March 20, 2017 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 20, 2017
PRESENT: Schoenfeld, J.P., Shulman, Ling-Cohan, JJ.
570595/16
against
Amica Mutual Ins. Co., Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County (Paul A. Goetz, J.), entered June 24, 2014, which granted defendant’s motion for summary judgment.
Per Curiam.
Order (Paul A. Goetz, J.), entered June 24, 2014, reversed, with $10 costs, and defendant’s motion denied.
Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates (see Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).
In view of our disposition, it is unnecessary to address the waiver argument raised by plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: March 20, 2017
Reported in New York Official Reports at Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C. (2017 NY Slip Op 01833)
| Matter of Global Liberty Ins. Co. v Therapeutic Physical Therapy, P.C. |
| 2017 NY Slip Op 01833 [148 AD3d 502] |
| March 15, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Global Liberty Insurance Co.,
Appellant, v Therapeutic Physical Therapy, P.C., as Assignee of Bernardo Hidalgo, Respondent. |
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.
Costella & Gordon, LLP, Garden City (Matthew K. Viverito of counsel), for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 24, 2016, which denied the petition seeking to vacate the award of a master arbitrator, dated August 12, 2016, to the extent it affirmed a lower arbitrator’s award of no-fault compensation to respondent in the unadjusted amount of $2,679.39, unanimously reversed, on the law, without costs, the petition granted to the extent of vacating that portion of the master arbitration award, and the matter remanded to a different arbitrator for arbitration of the fee schedule defense on the merits.
Respondent sought recovery for physical therapy services provided to its assignor before April 1, 2013, and petitioner insurer disclaimed parts of the claim on the ground that it had already reimbursed a different provider for “eight units” for services on some of the same dates. Respondent checked the box on the prescribed disclaimer form indicating that it was relying on a “fee schedule” defense, specifically the “eight unit rule.” The lower arbitrator held that respondent was precluded from asserting its defense because the disclaimer was insufficiently specific in that the other provider was not named. Respondent appealed to the master arbitrator, arguing that it adequately preserved its defense. The master arbitrator, without addressing the issue of preservation, incorrectly found that the lower arbitrator had “considered the fee schedule defense” and “determined that [r]espondent failed to provide evidence as to the other provider.”
The master arbitrator’s award was arbitrary, because it irrationally ignored the controlling law presented on the preservation issue (Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; see generally Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 232 [1982])—namely, that an insurer adequately preserves its fee schedule defense “by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s fees [were] not in accordance with the fee schedule” (Megacure Acupuncture, P.C. v Lancer Ins. Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U] *3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [internal quotation marks omitted]; Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736, 745-746 [Civ Ct, Bronx County 2014], affd 50 Misc 3d 85 [App Term, 1st Dept 2015]). Accordingly, we remand the matter to the extent indicated. Concur—Sweeny, J.P., Renwick, Mazzarelli and Manzanet-Daniels, JJ.
Reported in New York Official Reports at High Definition MRI, P.C. v Mapfre Ins. Co. of N.Y. (2017 NY Slip Op 01800)
| High Definition MRI, P.C. v Mapfre Ins. Co. of N.Y. |
| 2017 NY Slip Op 01800 [148 AD3d 470] |
| March 15, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| High Definition MRI, P.C., Appellant, v Mapfre Insurance Company of New York, Respondent. |
D’Agostino, Levine, Landesman & Lederman LLP, New York (Bruce H. Lederman of counsel), for appellant.
Bruno, Gerbino & Soriano, LLP, Melville (Nathan Shapiro of counsel), for respondent.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about July 14, 2016, which granted plaintiff’s motion for reargument of defendant’s motion to sever the breach of contract cause of action or, in the alternative, for a stay of the severance order pending appeal, only to the extent of extending plaintiff’s time to commence separate actions in Civil Court for the 198 claims asserted in the breach of contract cause of action, unanimously affirmed, with costs.
Although the order on reargument purported to deny plaintiff’s motion to reargue defendant’s severance motion, it is appealable, because the court addressed the merits of the motion, in effect, granting it and adhering to the original determination (see Jackson v Leung, 99 AD3d 489, 490 [1st Dept 2012]).
The court properly severed the breach of contract cause of action, since the 198 unrelated no-fault claims asserted therein raise no common issues of fact or law (see CPLR 603; Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [1st Dept 2004]). Plaintiff’s contention that the defense of fraudulent incorporation presents common factual and legal issues that predominate is unavailing, since defendant has made clear that it does not intend to pursue that defense.
The court properly denied plaintiff’s motion for a stay, since adjudication of the separate breach of contract claims in Civil Court is not dependent on a determination of the declaratory judgment cause of action (see Hunter v Hunter, 10 AD2d 937 [1st Dept 1960]). Concur—Acosta, J.P., Renwick, Moskowitz, Feinman and Gesmer, JJ. [Prior Case History: 2016 NY Slip Op 31336(U).]
Reported in New York Official Reports at Country-Wide Ins. Co. v Radiology of Westchester, P.C. (2017 NY Slip Op 01461)
| Country-Wide Ins. Co. v Radiology of Westchester, P.C. |
| 2017 NY Slip Op 01461 [147 AD3d 652] |
| February 23, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Country-Wide Insurance Company,
Appellant, v Radiology of Westchester, P.C., as Assignee of Elizabeth Colon, Respondent. |
Jaffe & Koumourdas, LLP, New York (Jean H. Kang of counsel), for appellant.
Frank S. Patruno Law Offices P.C., Montgomery (Frank S. Patruno of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Manuel J. Mendez, J), entered August 11, 2015, denying the unopposed petition to vacate a master arbitration award, dated March 17, 2015, which affirmed an arbitrator’s award that had granted respondent no-fault insurance benefits, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.
The master arbitrator’s award was arbitrary because it irrationally ignored petitioner’s uncontroverted evidence establishing that the assignor failed to appear at the three scheduled examinations under oath (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]). Concur—Friedman, J.P., Richter, Kapnick and Kahn, JJ.
Reported in New York Official Reports at Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)
| Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. |
| 2017 NY Slip Op 00916 [147 AD3d 437] |
| February 7, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Kemper Independence Insurance Company,
Respondent, v Adelaida Physical Therapy, P.C., et al., Appellants, et al., Defendants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered February 19, 2015, to the extent appealed from, granting plaintiff’s motion for summary judgment and declaring that plaintiff is not obligated to provide no-fault benefits to defendants Adelaida Physical Therapy, P.C., Charles Deng Acupuncture, P.C., Delta Diagnostic Radiology, P.C., Island Life Chiropractic Pain Care, PLLC, Maiga Products Corp., and TAM Medical Supply Corp. as a result of a motor vehicle accident, due to claimants’ failure to appear for their scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the judgment vacated and the motion denied.
Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage (see 11 NYCRR 65-1.1; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to supply sufficient evidence to enable the court to determine whether the notices it had served on the injury claimants for EUOs were subject to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]) and, if so, whether the notices had been served in conformity with those requirements (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Specifically, plaintiff failed to provide copies of any completed verification forms it may have received from any of the health service provider defendants or any other evidence reflective of the dates on which plaintiff had received any such verification forms, or otherwise assert that it never received such forms. Thus, plaintiff failed to meet its burden of establishing either that the EUOs were not subject to the procedures and time frames set forth in the no-fault implementing regulations or that it properly noticed the EUOs in conformity with their terms (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv [*2]denied 17 NY3d 705 [2011]; Allstate Ins. Co. v Pierre, 123 AD3d at 618).
In view of our disposition, we need not reach defendants’ remaining contentions. Concur—Saxe, J.P., Moskowitz, Gische, Kahn and Gesmer, JJ.
Reported in New York Official Reports at American Tr. Ins. Co. v Baucage (2017 NY Slip Op 00015)
| American Tr. Ins. Co. v Baucage |
| 2017 NY Slip Op 00015 [146 AD3d 413] |
| January 3, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| American Transit Insurance Company,
Respondent, v Gerbert Baucage et al., Defendants, and Innovative Medical Heights, P.C., Appellant. |
Law Office of Gregory A. Goodman, P.C., Hauppauge (Gregory A. Goodman of counsel), for appellant.
Law Offices of Daniel J. Tucker, Brooklyn (Joshua M. Goldberg of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 11, 2016, which granted plaintiff’s motion for a default judgment pursuant to CPLR 3215 declaring that it owes no duty to pay any pending or future no-fault claims arising out of a September 24, 2014 motor vehicle accident, and denied the cross motion of defendant Innovative Medical Heights, P.C. (Innovative Medical) for summary judgment dismissing the complaint as against it and for attorneys’ fees, unanimously affirmed, without costs.
Supreme Court properly granted plaintiff’s motion for a default judgment. The record demonstrates that plaintiff submitted proof that it served Innovative Medical with the summons and complaint, Innovative Medical does not deny that it was received, and Innovative Medical failed to set forth a reasonable excuse as to why it failed to timely answer the complaint (see CPLR 3215 [a], [f]). Innovative Medical’s claim that plaintiff accepted its untimely answer by failing to reject it fails, because plaintiff moved for the default judgment within 13 days of its receipt (see e.g. Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005]).
Furthermore, Innovative Medical’s cross motion was properly denied. Since Innovative Medical never properly filed an answer, it may not ask the court to reach the merits of the action because CPLR 3212 (a) expressly provides that a motion for summary judgment may only be made after joinder of issue (see Afco Credit Corp. v Mohr, 156 AD2d 287 [1st Dept 1989]). Concur—Friedman, J.P., Sweeny, Richter, Manzanet-Daniels and Kapnick, JJ.
Reported in New York Official Reports at Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51824(U))
| Palisade Surgery Ctr. LLC v Allstate Prop. & Cas. Ins. Co. |
| 2016 NY Slip Op 51824(U) [54 Misc 3d 129(A)] |
| Decided on December 29, 2016 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 29, 2016
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570152/16
against
Allstate Property & Casualty Insurance Company, Defendant-Respondent.
Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered July 30, 2015, as denied their cross motion for summary judgment on the issue of medical necessity.
Per Curiam.
Order (Tanya R. Kennedy, J.), entered July 30, 2015, affirmed, with $10 costs.
The issue of medical necessity was not fully litigated or decided in the prior first-party no-fault action, and thus the doctrine of collateral estoppel does not bar defendant-insurer from raising the medical necessity defense in this action (see Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; cf. Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). On the merits, we agree with Civil Court that the conflicting medical expert opinions adduced by the parties sufficed to raise a triable issue as to the medical necessity of the manipulation under anesthesia procedure underlying plaintiff’s claims (see Orthopedic Specialist of Greater NY v Chubb Indem. Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50565[U] [App Term, 1st Dept 2015]; Doctor Richard Med., P.C. v Praetorian Ins. Co., 37 Misc 3d 128[A], 2012 NY Slip Op 51909[U] [App Term, 1st Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur
Decision Date: December 29, 2016