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

Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50119(U))

Reported in New York Official Reports at Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50119(U))

[*1]
Metro Med. Diagnostics, P.C. v Country Wide Ins. Co.
2024 NY Slip Op 50119(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
2023-1025 Q C

Metro Medical Diagnostics, P.C., as Assignee of Raymond Pearson, 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 (Maureen A. Healy, J.), entered September 13, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $1,704.68 pursuant to a stipulation of settlement entered into on July 10, 2010, awarded plaintiff statutory no-fault interest from January 9, 2017. The appeal from the judgment brings up for review so much of an order of that court entered October 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 October 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 January 5, 2000 was commenced in 2001 and settled on July 10, 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 9, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On January 17, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 9, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered October 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate [*2]the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of statutory no-fault interest from the date of the settlement through January 9, 2017. A judgment was entered on September 13, 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 January 9, 2017, the date of the original judgment. 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 to the date of the original judgment (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 October 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

New Life Acupuncture, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50120(U))

Reported in New York Official Reports at New Life Acupuncture, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50120(U))

[*1]
New Life Acupuncture, P.C. v Country Wide Ins. Co.
2024 NY Slip Op 50120(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
2023-1043 Q C

New Life Acupuncture, P.C., as Assignee of Shelton Reason, 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 from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered March 22, 2017.

ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.

This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about May 4, 2000, arising from an accident that occurred on November 15, 1999 was commenced in 2002 and settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 22, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.

Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR [*2]65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]; Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144; Health Value Med., P.C. v Country Wide Ins., 77 Misc 3d 128[A], 2022 NY Slip Op 51137[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.

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

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

JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))

Reported in New York Official Reports at JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))

[*1]
JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co.
2024 NY Slip Op 50064(U)
Decided on January 12, 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 12, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-163 K C

JSJ Anesthesia Pain Management, PLLC, as Assignee of Vazquez, Hector N., Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


The Rybak Firm, PLLC (Maksin Leyvi and Richard Rozhik 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 (D. Bernadette Neckles, J.), dated December 15, 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024

Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))

Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))

[*1]
Pain Med., PLLC v State Farm Mut. Auto. Ins. Co.
2024 NY Slip Op 50065(U)
Decided on January 12, 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 12, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-164 K C

Pain Medical, PLLC, as Assignee of Vazquez, Hector N., Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik 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 (D. Bernadette Neckles, J.), dated December 15, 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.

For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024

Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))

Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))

[*1]
Pain Med., PLLC v State Farm Mut. Auto. Ins. Co.
2024 NY Slip Op 50069(U)
Decided on January 12, 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 12, 2024
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-753 K C

Pain Medical, PLLC, as Assignee of Van-Bochove, Nourine, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.


The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated January 6, 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied 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., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had [*2]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, 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.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: January 12, 2024

Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))

Reported in New York Official Reports at Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))

[*1]
Art of Healing Medicine, P.C. v Allstate Ins. Co.
2023 NY Slip Op 51471(U)
Decided on December 22, 2023
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 December 22, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PHILLIP HOM, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2023-513 K C

Art of Healing Medicine, P.C., as Assignee of Ketevan Ramishvili and Henadz Viliant, Appellant,

against

Allstate Insurance Company, Respondent.


Petre and Associates, P.C. (Mark Petre of counsel), for appellant. The Law Office of John Trop (Jeff G. Winston 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 March 8, 2023. The order granted defendant’s motion to vacate a judgment of that court entered May 3, 2022 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on May 3, 2022 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were served upon a named individual known by the process server to be an employee of defendant authorized to accept service of process. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated March 8, 2023, the Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.

“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) [*2]must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]).

In support of its contention that it possessed a reasonable excuse for its default, defendant submitted an affidavit from a claims representative who averred that either the summons and complaint were not received, based on the absence of a record documenting the receipt of this document in defendant’s electronic system, or that the summons and complaint were not processed due to a reduction in the number of personnel in defendant’s office, where service allegedly occurred, due to the COVID-19 pandemic. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant neither submitted an affidavit from the individual who had been named in the process server’s affidavit of service as having received service nor explained why such affidavit could not be provided (see Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Further, defendant’s assertion that a COVID-19-related staff reduction may have resulted in the failure to process the summons and complaint was conclusory and unsubstantiated, and, therefore, is also insufficient to qualify as a reasonable excuse (see V. v Leo, 219 AD3d 961, 962 [2023]; Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814 [2015]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 2021 NY Slip Op 50772[U], *1).

Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2023

Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U))

Reported in New York Official Reports at Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U))

[*1]
Metro Pain Specialists, P.C. v Mid-Century Ins. Co.
2023 NY Slip Op 51394(U) [81 Misc 3d 135(A)]
Decided on December 8, 2023
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 December 8, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
2022-179 S C

Metro Pain Specialists, P.C., as Assignee of Natanael Contreras, Respondent,

against

Mid-Century Insurance Company, Appellant.


Law Offices of Rothenberg & Burns (Jennifer A. Joseph of counsel), for appellant. Law Office of Gabriel & Shapiro, LLC (Matthew Sledzinski of counsel), for respondent.

Appeals from orders of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered June 15, 2021 and October 3, 2022. The June 15, 2021 order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint. The October 3, 2022 order, insofar as appealed from, upon reargument, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that, on the court’s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from the order entered June 15, 2021 is dismissed, as that order was superseded by the order entered October 3, 2022; and it is further,

ORDERED that the order entered October 3, 2022, insofar as appealed from, is reversed, without costs, and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court, in an order entered October 3, 2022, upon granting the branch of defendant’s motion seeking reargument, denied the branch of defendant’s motion which had sought summary judgment dismissing the complaint on the ground that the unpaid portion sought to be recovered exceeded the amount permitted by the workers’ compensation fee schedule, but held, in effect pursuant to CPLR 3212 (g), that the “only issue at trial shall be whether defendant properly paid the claim to fee schedule [sic].”

Defendant supported its motion with affidavits by its claim representative and a certified professional coder, which affidavits were sufficient to establish, prima facie, that the amount plaintiff sought to recover exceeded the amount permitted by the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only [*2]an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts (see Rockland Family Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 76 Misc 3d 1126[A], 2022 NY Slip Op 50766[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; GBI Acupuncture, P.C. v 21st Century Ins. Co., 48 Misc 3d 140[A], 2015 NY Slip Op. 51235[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order entered October 3, 2022, insofar as appealed from, is reversed and, upon reargument, the branch of defendant’s motion seeking summary judgment dismissing the complaint is granted.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 8, 2023

Rockaway Med. & Diagnostic, P.C. v Chubb Ins. Co. (2023 NY Slip Op 51241(U))

Reported in New York Official Reports at Rockaway Med. & Diagnostic, P.C. v Chubb Ins. Co. (2023 NY Slip Op 51241(U))

[*1]
Rockaway Med. & Diagnostic, P.C. v Chubb Ins. Co.
2023 NY Slip Op 51241(U)
Decided on October 6, 2023
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 October 6, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2020-974 Q C

Rockaway Medical & Diagnostic, P.C., as Assignee of Clement R. High, Appellant,

against

Chubb Insurance Co., Respondent.


The Law Offices of “Shay” Shailesh Deshpande, LLC (David O’Connor, Esq.), for appellant. McDonnell, Adels & Klestzick, PLLC (Jannine A. Gordineer of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rachel Freier, J.), dated April 29, 2020. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, with $25 costs.

In 2004, plaintiff commenced this action to recover assigned first-party no-fault benefits. By a so-ordered stipulation dated May 25, 2006, plaintiff was required to provide “complete” responses to defendant’s discovery demands by July 24, 2006 or the complaint would be dismissed. Insofar as relevant to this appeal, defendant moved, in January 2020, in effect pursuant to CPLR 3126, to dismiss the complaint on the ground that plaintiff had failed to comply with the stipulation. By order dated April 29, 2020, the Civil Court (Rachel Freier, J.) granted defendant’s motion.

A conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply (see e.g. Okumus v Living Room Steak House, Inc., 112 AD3d 799, 799 [2013]; Panagiotou v Samaritan Vil., Inc., 66 AD3d 979, 980 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Velocity Chiropractic, P.C. v Chubb Indem. Ins. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50673[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To avoid the adverse impact of a conditional so-ordered stipulation, [*2]the defaulting party must demonstrate a reasonable excuse for its failure to comply with the stipulation and the existence of a meritorious cause of action or defense (see Okumus v Living Room Steak House, Inc., 112 AD3d at 799; Panagiotou v Samaritan Vil., Inc., 66 AD3d at 980; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d at 908).

Here, as the Civil Court properly found, plaintiff failed to comply with the stipulation. Defendant demanded verified responses to defendant’s interrogatories, but the record shows that plaintiff’s written interrogatory responses were not properly verified. While plaintiff’s responses to defendant’s discovery demands indicated that plaintiff would provide defendant with certain information concerning plaintiff’s expert witnesses to be called at trial, the record is bereft of any indication that the information was ever provided. In opposition to defendant’s motion, plaintiff objected to many of defendant’s discovery demands. However, since the demands for discovery were served on plaintiff in 2004 and plaintiff did not challenge the propriety of the demands within the time prescribed by CPLR 3122 (a) and 3133 (a), plaintiff was obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Recine v City of New York, 156 AD3d 836 [2017]; Fausto v City of New York, 17 AD3d 520, 522 [2005]; Maiga Prods. Corp. v United Servs. Auto. Assn., 57 Misc 3d 127[A], 2017 NY Slip Op 51148[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff has failed to assert that the discovery demands it objected to sought information which is privileged or establish that the demands are palpably improper, plaintiff was obligated to provide defendant with that information, and its failure to do so rendered its responses incomplete.

The stipulation, which functioned as a conditional order, therefore became absolute upon plaintiff’s failure to comply with the requirement that it provide complete responses to defendant’s discovery demands (see Feng Lucy Luo v Yang, 150 AD3d 726, 727 [2017]; Okumus v Living Room Steak House, Inc., 112 AD3d at 799; Alhomedi v TDS Leasing, Inc., 41 AD3d 747, 748 [2007]). As plaintiff failed to offer a reasonable excuse for its failure to comply with the stipulation and failed to demonstrate the existence of a potentially meritorious cause of action, the Civil Court properly dismissed the action pursuant to the stipulation (see Khan v Old Navy, 166 AD3d 599, 600 [2018]; Alhomedi v TDS Leasing, Inc., 41 AD3d at 748).

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 6, 2023