Decided on September 16, 2014

Decided on August 22, 2014

Decided on August 11, 2014

Decided on July 24, 2014

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

Burke, Gordon & Conway, White Plains (Philip J. Dillon of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 22, 2013, which, insofar as appealed from as limited by the briefs, granted so much of plaintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured, defendant Gregory Huff (defendants Alleviation Medical Services, P.C. and Great Health Care Chiropractic P.C.’s assignor), based, inter alia, on Huff’s breach of a condition precedent to coverage under the policy, and a permanent stay of any arbitration or court hearing for no-fault benefits arising from the underlying alleged accident involving Huff, and declared, among other things, that the disclaimer is proper, unanimously affirmed, with costs.

The instant action arises out of an automobile accident that occurred on or about April 28, 2011, involving a vehicle insured by plaintiff. The vehicle’s owner and driver, defendant Gregory Huff, assigned his no-fault insurance benefits to defendant medical providers. Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.

We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.

In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2d Dept 2011], lv denied 17 NY3d 703 [2011]). Even if this were not the case, the affidavit of plaintiff’s investigator confirms that Huff did not seek another EUO, a fact the insured does not dispute. Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.

An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Constr. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2d Dept 2003]). Concur—Sweeny, J.P., Renwick, Andrias, Richter and Kapnick, JJ.

Decided on July 16, 2014

Defendant, as limited by its brief, appeals from so much of an amended order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), dated July 3, 2013, as denied, in part, its motion for summary judgment dismissing the complaint.

Per Curiam.

Amended order (Joseph E. Capella, J.), dated July 3, 2013, insofar as appealed from, reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted in its entirety. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor and his counsel, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). With respect to the appearance issue, defendant presented competent evidence of the assignor’s nonappearance in the form of the sworn affidavits of the scheduled examining physician and an employee of the defendant’s third-party biller attesting to the affiants’ “personal knowledge of the office procedures when a[n] [assignor] failed to appear for a medical exam” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424).

In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). Plaintiff’s remaining arguments, to the extent properly considered, are lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on June 9, 2014

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered September 26, 2013, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ruben Franco, J.), entered September 26, 2013, reversed, with $10 costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting competent evidence establishing the proper and timely mailing of the notices scheduling the assignor’s independent medical examinations and examinations under oath, as well as the assignor’s failure to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). With respect to the latter, defendant’s moving submission, including the sworn affidavits of the scheduled examining physicians, set forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the duly scheduled IMEs, and the affiants’ actions, “in the ordinary course of business,” in advising defendants’ third-party biller of such nonappearance. As to defendant’s mailing of the EUO notices, we note that the assignor’s address as listed in the notices was consistent with that appearing on the claim form submitted by the plaintiff medical provider, which, notably, offered no persuasive explanation, either below or on appeal, as to why the notices were returned to defendant as “unclaimed.” In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 30, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

[*1]

Blodnick Fazio & Associates, P.C., Garden City (Edward K. Blodnick of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 24, 2012, which granted the motions of defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

Where an amended pleading is submitted in response to a pre-answer motion to dismiss, the provident course of action for the motion court is to include the amended complaint in the record on the pending motion, which should then be granted or denied based on the sufficiency of the amended pleading (see e.g. Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07 [2d ed 2011]).

Here, the amended complaint, like the original complaint, was insufficient to state a cause of action upon which relief could be granted. Plaintiffs asserted that defendant Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements. Allstate plainly has that right (see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Plaintiffs also attempted to assert causes of action against Allstate’s counsel, defendants Robert P. Macchia and Mehmet P. Gokce for undertaking a legitimate investigation at Allstate’s behest. It is well settled that no [*2]such cause of action lies (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept 1976]).

We have considered the plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 33515(U).]

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), entered June 4, 2013, which denied its motion for entry of a default judgment against defendants.

Per Curiam.

Order (Andrea Masley, J.), entered June 4, 2013, affirmed, without costs.

The plaintiff insurer commenced the underlying actions, consolidated below, seeking declaratory relief and review by way of trial de novo of five separately issued master arbitrator’s awards issued in favor of defendant medical providers on their claims for first-party no-fault benefits. While Civil Court had jurisdiction to entertain the lawsuit (see CCA 212-a; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]), we sustain the dismissal of the consolidated actions on the merits. De novo review of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is in the amount of $5,000 or more, in which case the dispute is subject to a “plenary judicial adjudication” pursuant to Insurance Law § 5106(b) (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987]). Since none of the master arbitrator’s awards giving rise to these actions met or exceeded the statutory threshold sum of $5,000, de novo review was unavailable, and the individual complaints served by plaintiff seeking such relief did not state a viable cause of action. In this posture, the court was warranted in dismissing the consolidated actions upon plaintiff’s motion for entry of a default judgment (see generally Aprea v New York State Bd. of Elections, 103 AD3d 1059, 1061 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2014