Akai Acupuncture, P.C. v Foremost Prop. & Cas. Ins. Co. (2024 NY Slip Op 50630(U))

Reported in New York Official Reports at Akai Acupuncture, P.C. v Foremost Prop. & Cas. Ins. Co. (2024 NY Slip Op 50630(U))

[*1]
Akai Acupuncture, P.C. v Foremost Prop. & Cas. Ins. Co.
2024 NY Slip Op 50630(U)
Decided on May 17, 2024
Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-130 K C

Akai Acupuncture, P.C., as Assignee of Brown, Hopeton, Appellant,

against

Foremost Property and Casualty Insurance Company, Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rothenberg & Romanek (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered December 7, 2022. The order, insofar as appealed from, granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident that occurred on April 23, 2014, plaintiff appeals from so much of an order of the Civil Court (Rupert V. Barry, J.) as granted the branch of defendant’s motion seeking to dismiss the complaint and implicitly denied plaintiff’s cross-motion for summary judgment.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant, the policy had been cancelled, prior to the accident at issue, by letter sent to the insured on February 24, 2014, effective March 8, 2014, for nonpayment of the premium.

On appeal, neither party disputes that Florida law applies, which law requires that a notice of cancellation of a policy for nonpayment of an insurance premium be “mailed or delivered” to the insured 10 days prior to the effective cancellation date (see Fla Stat Ann § 627.728 [3] [a]). In 2014, Florida Statutes § 627.728 (5) provided as follows:

“United States postal proof of mailing or certified or registered mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation, or of the intention of the insurer to issue a policy by an insurer under the same ownership or management, to the first-named insured at the address shown in the policy shall be sufficient proof of notice.”


For purposes of this statute, “United States postal proof of mailing . . . means a United States postal proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co. v Cayre, 785 So 2d 656, 658 [Fla Dist Ct App, 3d Dist 2001]).

In support of its motion, defendant submitted a “Certificate of Mail List” which lists various mailings, including one to the insured; however, that list is not date-stamped or signed or otherwise marked in any way by the USPS. The only proof of mailing submitted by defendant that was certified by the USPS is a Certificate of Bulk Mailing, which shows that over 2,000 pieces of mail were sent on the day in question. Defendant failed to show that this form constituted “proof of mailing which conforms to the requirements of United States postal regulations” (Aries Ins. Co., 785 So 2d at 658). Indeed, according to the USPS website, a Certificate of Bulk Mailing “is used to specify only the number of identical-weight pieces mailed; it does not provide evidence that a piece was mailed to a particular address” (see Munger v Infinity Ins. Co., 2015 WL 5922185, *6, 2015 US Dist LEXIS 138294, *14-15 [MD Fla, Oct. 9, 2015, No. 8:14—cv—914—T—36JSS] [“a Certificate of Bulk Mailing for the Nonpay Notice . . . does not qualify as a United States postal proof of mailing, since it only acknowledges that a certain number of pieces of mail were included in a particular bulk mailing”]). Similarly, the affidavit submitted by defendant in support of its claim of having provided notice to its insured failed to demonstrate actual mailing or that defendant had mailed the cancellation notice in accordance with its standard office practices and procedures (see Aries Ins. Co., 785 So 2d at 660; see also St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, the Civil Court should have denied the branch of defendant’s motion which sought to dismiss the complaint on the ground that defendant had properly cancelled the policy and that there was, therefore, no coverage at the time of the accident at issue.

Plaintiff’s cross-motion for summary judgment was properly denied, as the affidavit plaintiff submitted in support of its cross-motion failed to establish that the claim 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 denials 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, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to dismiss the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 17, 2024

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111)

Reported in New York Official Reports at Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111)

[*1]
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.
2024 NY Slip Op 24111
Decided on March 15, 2024
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.


Decided on March 15, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-129 K C

Burke Physical Therapy, P.C., as Assignee of Rush, Kanice, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


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

Appeal from an order of the Civil Court of the City of New York, Kings County (Heela D. Capell, J.), dated September 16, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint and denying, as moot, plaintiff’s cross-motion for summary judgment while declining to consider plaintiff’s additional papers submitted in support of its cross-motion for summary judgment.

Defendant moved for summary judgment on the ground that it had timely and properly denied plaintiff’s claims based upon plaintiff’s failure to timely provide requested written verification (see 11 NYCRR 65-3.5 [o]). According to defendant, after receipt of the subject NF-3 forms on July 23, 2018 and July 30, 2018, it mailed a letter to plaintiff on August 14, 2018 scheduling an examination under oath (EUO) to be held on September 14, 2018. Plaintiff appeared at the EUO on September 14, 2018. Defendant then requested written verification from plaintiff by letter dated September 18, 2018, with a follow up to that request dated October 19, 2018. On February 4, 2019, defendant denied the claims based upon plaintiff’s failure to provide [*2]the requested written verification within 120 days of the September 18, 2018 request. Contrary to the holding of the Civil Court, we find that defendant did not establish that it had timely denied the claims at issue.

Upon receipt of a “prescribed verification form” such as an NF-3 form (titled “verification of treatment by attending physician or other provider of health service”) or an NF-4 form (titled “verification of hospital treatment”), the no-fault regulations grant an insurer the opportunity to request “additional verification required by the insurer to establish proof of claim” (11 NYCRR 65-3.5 [b]). 11 NYCRR 65-3.5 (b) provides that “[a]ny [additional verification] shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added). An insurer is required to pay or deny a claim within 30 calendar days of its receipt of proof of claim, which consists of a prescribed verification form and any properly requested additional verification (see 11 NYCRR 65-3.8 [a]). The only exception to the 15-business-day deadline to request additional verification can be found in 11 NYCRR 65-3.8 (l), which provides, insofar as is relevant here, that any deviation from the time frame set forth in 11 NYCRR 65-3.5 (b) reduces the 30 days to pay or deny a claim by the same number of days that the request for additional verification was made after the 15th business day. (Thus, while defendant’s EUO scheduling letter was one day “late” with respect to the NF-3 form, which, defendant asserts, it received on July 23, 2018, the only effect of that delay would be to reduce the time to pay or deny that claim from 30 days to 29 days. For purposes of this discussion, the scheduling letter will be referred to as “timely.”) Here, defendant’s September 18, 2018 request was made nearly 60 days after receipt of the first NF-3 form and more than 50 days after receipt of the second NF-3 form.

Defendant’s argument on appeal is that its August 14, 2018 EUO scheduling letter tolled “the time within which it had to pay or deny plaintiff’s claim until it received all additional verification,” including what was requested for the first time in the September 18, 2018 letter. We agree that defendant’s time to pay or deny the claims was tolled by the EUO scheduling letter, which letter was “timely” issued pursuant to 11 NYCRR 65-3.5 (b) and 65-3.8 (l), but, contrary to defendant’s apparent position, that toll expired on September 14, 2018 when the EUO was conducted and proof of claim became complete (see 11 NYCRR 65-3.8 [a] [1] [“No-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim, which shall include verification of all of the relevant information requested pursuant to section 65-3.5 of this Subpart. In the case of an examination under oath or a medical examination, the verification is deemed to have been received by the insurer on the day the examination was performed” (emphasis added)]). In any event, defendant’s argument misconstrues both 11 NYCRR 65-3.8 (a), the regulatory basis for tolling, and 11 NYCRR 65-3.5 (b), which permits an insurer to request additional verification within 15 business days of receipt of a prescribed verification form. It was defendant’s time to pay or deny plaintiff’s claims that was tolled, pursuant to 11 NYCRR 65-3.8 (a), by the timely EUO scheduling letter—not defendant’s time to request additional verification under 11 NYCRR 65-3.5 (b). Any requests for additional verification must be made within 15 business days of receipt of the prescribed verification form, subject to the minor allowance set forth in 11 NYCRR 65-3.8 (l), and, as previously explained by this court, the regulations do not provide that a toll of the time to pay or deny a claim created by a timely additional verification request also “grants an insurer additional opportunities to make [*3]requests for verification that would otherwise be untimely” (Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Indeed, an original request for additional verification (see 11 NYCRR 65-3.5 [b]) made more than 30 calendar days after receipt of a prescribed verification form, i.e., an NF-3 form or NF-4 form, is a nullity as to that claim, regardless of any toll of the time to pay or deny the claim that might be in effect (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 2015 NY Slip Op 51220[U]; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]).

We note that there is another provision in the regulations regarding additional verification, 11 NYCRR 65-3.6 (b), which states that, “[a]t a minimum, if any requested verifications [i.e., additional verification] has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested.” In Quality Health Supply Corp. v Nationwide Ins. (216 AD3d 1013, 1014 [2023]), the Appellate Division, Second Department, held that 11 NYCRR 65-3.6 (b) permitted a no-fault insurer, where there had been an “original” request for an EUO that was timely made pursuant to 11 NYCRR 65-3.5 (b), and for which there was no appearance, to follow up on that request as often as the insurer found necessary, while the initial toll of the insurer’s time to pay or deny the claim continued, as long as such follow-up requests were “timely and proper[ ].” Neither 11 NYCRR 65-3.6 (b) nor the holding in Quality Health Supply Corp. v Nationwide Ins. is applicable to the determination of this case for two reasons. First, plaintiff herein complied with defendant’s original request for additional verification by appearing for an EUO on September 14, 2018; in other words, here, the “timely” requested additional verification was “supplied,” whereas 11 NYCRR 65-3.6 (b) only applies where the additional verification “has not been supplied.” Second, the September 18, 2018 request at issue is an “original request” seeking new verification, not a “follow up” of an “original request” seeking verification that has already been requested and “has not been supplied” by “the party from whom the verification was requested,” as was the case in Quality Health Supply Corp. v Nationwide Ins.

In view of the foregoing, defendant failed to demonstrate that it timely denied the claims at issue and therefore that it was not precluded from raising the defense upon which its motion for summary judgment was based (see 11 NYCRR 65-3.8 [a] [1]; RA Med. Servs., P.C. v Lancer Ins. Co., 76 Misc 3d 129[A], 2022 NY Slip Op 50793[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Neptune Med. Care, P.C., 2015 NY Slip Op 51220[U], *1-2; O & M Med., P.C. v Travelers Indem. Co., 2015 NY Slip Op 50476[U]; cf. Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., 79 Misc 3d 132[A], 2023 NY Slip Op 50794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). Consequently, plaintiff correctly argues that defendant’s motion for summary judgment should have been denied.

Plaintiff’s cross-motion for summary judgment, although no longer moot, was properly denied, as plaintiff failed to demonstrate the absence of any material issue of fact (see CPLR 3212 [b]; 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]).

Finally, contrary to plaintiff’s argument, the denial of defendant’s motion for summary judgment in a declaratory judgment action brought in the Supreme Court, Nassau County, has no [*4]preclusive effect on this case as it was not a final determination on the merits (see Queensboro Farm Prods. v General Acc. Ins. Co., 254 AD2d 341, 342 [1998]; Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85, 86-87 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, we need not consider plaintiff’s contention that the Civil Court erred in declining, on procedural grounds, to consider the submission of that decision and order.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 15, 2024

Longevity Med. Supply, Inc. v Nationwide Ins. Co. (2024 NY Slip Op 50406(U))

Reported in New York Official Reports at Longevity Med. Supply, Inc. v Nationwide Ins. Co. (2024 NY Slip Op 50406(U))

[*1]
Longevity Med. Supply, Inc. v Nationwide Ins. Co.
2024 NY Slip Op 50406(U) [82 Misc 3d 130(A)]
Decided on March 15, 2024
Appellate Term, Second 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 15, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-1065 K C

Longevity Medical Supply, Inc., as Assignee of Celestine, Winston, Respondent,

against

Nationwide Insurance Company, Appellant.


Law Offices of Brian Rayhill (Lawrence Wolkow 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 (Sandra E. Roper, J.), entered February 8, 2023. 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 affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not an eligible injured person (EIP) for receipt of no-fault benefits as his injuries did not arise from the use or operation of an insured vehicle (see Insurance Law § 5103; 11 NYCRR 65-1.1 [d] [a]). Defendant contended that plaintiff’s assignor’s injuries were the result of an assault after the subject motor vehicle accident, relying on the truth of plaintiff’s assignor’s factual assertions contained within uncertified records of the Kings County Hospital Center, where plaintiff’s assignor was admitted one hour after the subject accident. Conceding that the statements were hearsay, defendant’s attorney argued that they were admissible as exceptions as party statements and/or statements relevant to diagnosis and treatment. By order entered February 8, 2023, insofar as appealed from, the Civil Court denied defendant’s motion.

A review of the records shows that, contrary to defendant’s contentions, defendant failed to establish, as a matter of law, that plaintiff’s assignor was not an EIP as defined by the [*2]Insurance Law and no-fault regulations. Hospital and medical records are admissible to support a summary judgment motion if the records are certified pursuant to CPLR 4518 (c) or the proponent of the records submits foundational testimony pursuant to CPLR 4518 (a) (see Berkovits v Chaaya, 138 AD3d 1050 [2016]; Matter of Kai B., 38 AD3d 882 [2007]). Here, as plaintiff correctly contends, the hospital records were not certified and defendant failed to otherwise establish a proper foundation for their admissibility. Therefore, the statements relied upon by defendant were not admissible (see Yassin v Blackman, 188 AD3d 62 [2020]; Berkovits, 138 AD3d 1050; Matter of Kai B., 38 AD3d 882). Consequently, defendant failed to proffer competent evidence to establish, as a matter of law, its defense that plaintiff’s assignor was not an EIP (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see e.g. Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co., 12 Misc 3d 140[A], 2006 NY Slip Op 51351[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]), and defendant’s motion was properly denied.

It is noted that, even if the hospital records and the statements contained therein were admissible, defendant would still not be entitled to summary judgment dismissing the complaint, as defendant’s motion failed to eliminate all material questions of fact as to whether plaintiff’s assignor’s injuries were the result of an assault and not the result of the use or operation of a motor vehicle.

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

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 15, 2024

GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50395(U))

Reported in New York Official Reports at GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50395(U))

[*1]
GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co.
2024 NY Slip Op 50395(U) [82 Misc 3d 128(A)]
Decided on March 14, 2024
Appellate Term, Second 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 14, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : JERRY GARGUILO, P.J., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
2022-458 S C

GPLW Acupuncture, P.C., as Assignee of Muhammad Pratts, Respondent,

against

Nationwide Mutual Insurance Company, Appellant.


Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered April 29, 2022. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the District Court as denied the branches of defendant’s motion which had sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

For each bill at issue, defendant established prima facie that it timely mailed initial and [*2]follow-up EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff failed to appear for the scheduled EUOs; and that defendant then issued “timely and proper denial[s] of the claims following [plaintiff’s] failure to appear at the last scheduled EUO” (Quality Health Supply Corp. v Nationwide Ins., 216 AD3d 1013, 1014 [2023]). To the extent that the District Court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, we note that the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in response to defendant’s prima facie showing, defendant is entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims (see id.; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from June 8, 2020 through July 7, 2020 and from July 14, 2020 through October 5, 2020 on the ground that plaintiff failed to appear for duly scheduled examinations under oath is granted.

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 14, 2024

GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U))

Reported in New York Official Reports at GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U))

[*1]
GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co.
2024 NY Slip Op 50397(U) [82 Misc 3d 129(A)]
Decided on March 14, 2024
Appellate Term, Second 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 14, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : JERRY GARGUILO, P.J., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
2022-594 S C

GPLW Acupuncture, P.C., as Assignee of Claude Watson, Respondent,

against

Nationwide Mutual Insurance Company, Appellant.


Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Gabriel & Moroff, PC (Koenig Pierre of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Fourth District (Garrett W. Swenson, Jr., J.), entered June 21, 2022. 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 appeals from so much of an order of the District Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).

The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.8 [l]). In addition, defendant submitted affidavits by its attorney who was scheduled to conduct the EUOs, as well as certified transcripts of the attorney’s statements of the nonappearances, which were sufficient to establish plaintiff’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], [*2]2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Consequently, defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]). To the extent the court stated that there was an issue of fact as to whether the EUOs were scheduled to be held in a location which was reasonably convenient for plaintiff, the EUO scheduling letters offered to let plaintiff appear virtually. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant’s motion for summary judgment dismissing the complaint should have been granted.

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

GARGUILO, P.J., McCORMACK and WALSH, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 14, 2024

JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U))

Reported in New York Official Reports at JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U))

[*1]
JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co.
2024 NY Slip Op 50203(U)
Decided on February 16, 2024
Appellate Term, Second 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 February 16, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-655 K C

JSJ Anesthesia Pain Management, PLLC, as Assignee of Gardner-Bowlyn, Janet, Appellant,

against

Nationwide Insurance Company, Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 18, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [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 complaint.

Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff failed to establish that the claim 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 a timely denial of claim form that was 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 defendant’s motion for summary judgment dismissing the complaint is denied.

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2024

LR Med., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50204(U))

Reported in New York Official Reports at LR Med., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50204(U))

[*1]
LR Med., PLLC v Nationwide Ins. Co.
2024 NY Slip Op 50204(U)
Decided on February 16, 2024
Appellate Term, Second 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 February 16, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-656 K C

LR Medical, PLLC, as Assignee of Gardner-Bowlyn, Janet, Appellant,

against

Nationwide Insurance Company, Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Brian Rayhill (Ivy Cherian and Lawrence Wolkow of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated April 10, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint 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, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denying plaintiff’s cross-motion for summary judgment.

For the reasons stated in JSJ Anesthesia Pain Mgt., PLLC, as Assignee of Gardner-Bowlyn, Janet v Nationwide Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-655 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2024

Good Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50205(U))

Reported in New York Official Reports at Good Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50205(U))

[*1]
Good Care Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.
2024 NY Slip Op 50205(U)
Decided on February 16, 2024
Appellate Term, Second 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 February 16, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ
2023-721 K C

Good Care Chiropractic, P.C., as Assignee of Valentine, Jemilah, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen E. Edwards, J.), dated February 22, 2023. The order, insofar as appealed from as limited by the brief, granted defendant’s motion to compel plaintiff to accept defendant’s late answer.

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

Plaintiff commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor as a result of a motor vehicle accident which occurred on April 22, 2015. Defendant was personally served with process at its Illinois office on September 29, 2020. Defendant did not timely appear or answer the complaint. It is undisputed that, in February 2021, defendant contacted plaintiff’s counsel and requested that the action be voluntarily discontinued on the ground that there was no coverage under the insurance policy, as the policy had been cancelled effective April 16, 2015 due to nonpayment of the premium. In an email sent on March 15, 2021, plaintiff’s counsel stated that it would not voluntarily discontinue the action. Defense counsel served an answer on March 25, 2021, and plaintiff rejected it as untimely.

By notice of motion dated June 16, 2021, defendant moved to compel plaintiff to accept defendant’s late answer, pursuant to CPLR 3012 (d), alleging, as is relevant to this appeal, that there was a reasonable excuse for its delay in answering. In support of its motion, defendant submitted an affidavit of its employee who averred that the delay was due to defendant’s [*2]difficulty in connecting the summons and complaint to the imsurance policy and claim file. The policy was inactive and defendant had been served in Illinois even though the policy was issued in Nevada, and New York was the site of the accident and lawsuit. Once the policy and claim file were identified, there was an additional delay in answering, as defendant contacted plaintiff’s counsel to request that the action be voluntarily discontinued on the ground that there was no active policy coverage at the time of the accident. In opposition, plaintiff argued that defendant had failed to proffer a reasonable excuse for its delay in answering, instead admitting to mere law office neglect. By order dated February 22, 2023, insofar as appealed from as limited by the brief, the Civil Court granted defendant’s motion to compel plaintiff to accept its late answer, finding that defendant had proffered a reasonable excuse for its delay in serving its answer.

A court may compel a plaintiff to accept a defendant’s late answer “upon such terms as may be just and upon a showing of a reasonable excuse for delay” in answering (CPLR 3012 [d]; see also Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 57 Misc 3d 138[A], 2017 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). “The determination of what constitutes a reasonable excuse lies within the trial court’s discretion” (New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322, 1323 [2014]). Under the particular circumstances presented, as well as defendant’s lack of willfulness and the absence of any prejudice to plaintiff, we find that the Civil Court did not improvidently exercise its discretion in granting defendant’s motion to compel plaintiff to accept its late answer (see CPLR 3012 [d]; Pain Mgt. Ctr. of N.J., P.C. v All Car Rent-A-Car, 2017 NY Slip Op 51310[U]).

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

BUGGS, J.P., OTTLEY and HOM, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 16, 2024

State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc. (2024 NY Slip Op 00646)

Reported in New York Official Reports at State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc. (2024 NY Slip Op 00646)

State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc.
2024 NY Slip Op 00646
Decided on February 7, 2024
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on February 7, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
DEBORAH A. DOWLING, JJ.

2022-03088
(Index No. 705856/21)

[*1]State Farm Mutual Automobile Insurance Company, etc., appellant,

v

Amtrust North America, Inc., respondent.




Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, NY (Neil Khiani and Joseph T. Darr of counsel), for appellant.

Marschhausen & Fitzpatrick, P.C., Hicksville, NY (Kevin P. Fitzpatrick of counsel), for respondent.



DECISION & ORDER

In a subrogation action to recover damages for unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated March 17, 2022. The order granted the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the complaint.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the defendant’s motion pursuant to CPLR 3211(a)(2) to dismiss the complaint after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors.

In March 2021, the plaintiff commenced this action against the defendant to recover the benefits paid, alleging causes of action sounding in unjust enrichment. Thereafter, the defendant moved pursuant to CPLR 3211(a)(2) to dismiss the complaint on the ground that the Workers’ Compensation Board had jurisdiction over the coverage dispute. In an order dated March 17, 2022, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” (O’Rourke v Long, 41 NY2d 219, 228; see Liss v Trans Auto Sys., 68 NY2d 15, 20-21). “Since ‘primary jurisdiction with respect to determinations [*2]as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” (Chin v Doherty Enters., 207 AD3d 514, 516, quoting Botwinick v Ogden, 59 NY2d 909, 911).

Here, the Workers’ Compensation Board has primary jurisdiction over the coverage issues raised, including the extent to which the medical expenses incurred by the plaintiff’s subrogors are causally related to the subject accident and compensable under the Workers’ Compensation Law (see Matter of Brennan v Village of Johnson City, 213 AD3d 1058, 1059; Matter of Bland v Gellman, Brydges & Schroff, 151 AD3d 1484, 1487). Contrary to the plaintiff’s contention, having not sought review or reopening of the workers’ compensation hearing, the plaintiff has not established that it lacks recourse before the Workers’ Compensation Board (see Workers’ Compensation Law § 142(7); 12 NYCRR 300.13[a][4], [b][2][iv]; 300.14[a]; Matter of Lutheran Med. Ctr. v Hereford Ins. Co., 43 AD3d 1064, 1065). Therefore, the Supreme Court should have referred the matter to the Workers’ Compensation Board (see Lall v Harnick, 212 AD3d 606, 607; Chin v Doherty Enters., 207 AD3d at 516).

The defendant’s remaining contention is not properly before this Court.

Accordingly, we remit the matter to the Supreme Court, Queens County, for a new determination of the defendant’s motion after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

CONNOLLY, J.P., MALTESE, WOOTEN and DOWLING, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court



Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2024 NY Slip Op 50118(U))

Reported in New York Official Reports at Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2024 NY Slip Op 50118(U))

[*1]
Biotech Surgical Supply, Inc. v Country Wide Ins. Co.
2024 NY Slip Op 50118(U)
Decided on January 26, 2024
Appellate Term, Second 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 January 26, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1003 Q C

Biotech Surgical Supply, Inc., as Assignee of Louise Moses, Appellant,

against

Country Wide Insurance Company, Respondent.


Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velasquez, LLP, for respondent (no brief filed).

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 14, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $500.23 pursuant to a stipulation of settlement entered into on February 3, 2003, awarded plaintiff statutory no-fault interest from February 14, 2017. The appeal from the judgment brings up for review so much of an order of that court entered February 22, 2018 as, sua sponte, tolled the accrual of statutory no-fault interest.

ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

This action by a provider to recover assigned first-party no-fault benefits for a claim arising out of an accident that occurred on October 6, 1999 was commenced in 2001 and settled on February 3, 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On February 14, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual [*2]of statutory no-fault interest through February 14, 2017, the date plaintiff filed its motion. A judgment was entered on September 14, 2023 accordingly, from which plaintiff appeals on the ground of inadequacy.

Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff’s motion. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest from the date of the settlement until the date plaintiff filed the instant motion (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).

Accordingly, the judgment, insofar as appealed from, is reversed, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 26, 2024