Reported in New York Official Reports at Tam Med. Supply Corp. v Hereford Ins. Co. (2017 NY Slip Op 51196(U))
| Tam Med. Supply Corp. v Hereford Ins. Co. |
| 2017 NY Slip Op 51196(U) [57 Misc 3d 131(A)] |
| Decided on September 15, 2017 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1901 K C
against
Hereford Insurance Co., Appellant.
Law Office of Lawrence R. Miles (Lawrence R. Miles, Esq.), for appellant. The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 10, 2014. 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 affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered June 10, 2014, the Civil Court denied defendant’s motion, but held, in effect pursuant to CPLR 3212 (g), that the only issue for trial was whether the verification remained outstanding. Defendant appeals from so much of the order as denied its motion.
While defendant made a prima facie showing that it had not received the requested verification, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a triable issue of fact exists as to whether the requested verification remained outstanding, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint as premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51194(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 2, 2014. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action are 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, plaintiff appeals from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first through fourth, sixth and seventh causes of action, and granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action on the ground that they were premature because plaintiff had failed to provide requested verification.
Contrary to plaintiff’s contention, defendant demonstrated prima facie that it had not received the requested verification and, thus, that the causes of action at issue are premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff in opposition to defendant’s cross motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of the foregoing, there is a triable issue of fact as to whether the causes of action at issue are premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2015]).
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action are denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51193(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.
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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, second, fifth, sixth and seventh causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.
Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to raise an issue of fact as to whether defendant had ever received the claims underlying the third and fourth causes of action; thus, the Civil Court correctly denied the branches of plaintiff’s motion seeking summary judgment on these causes of action.
For the reasons stated in Compas Med., P.C., as Assignee of Pierre, Jean v American Tr. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1830 Q C], decided herewith), we find that the remainder of the order, insofar as appealed from, was also correctly [*2]decided.
In light of the foregoing, plaintiff’s remaining contentions are academic.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.
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, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.
Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51191(U))
| Compas Med., P.C. v American Tr. Ins. Co. |
| 2017 NY Slip Op 51191(U) [57 Misc 3d 130(A)] |
| Decided on September 15, 2017 |
| 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 September 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1826 Q C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 30, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground, among others, that defendant had not received timely notice of the accident (see 11 NYCRR 65-1.1 [d]).
Contrary to plaintiff’s argument on appeal, the proof submitted by defendant established that it had not received timely notice of the accident, which proof was not rebutted by plaintiff.
In view of the foregoing, plaintiff’s remaining arguments are academic.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51190(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action.
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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action on the ground, among others, that defendant had not received timely notice of the accident.
Contrary to plaintiff’s argument on appeal, the proof submitted by defendant was sufficient to raise an issue of fact as to whether defendant had ever received the claim underlying the fifth cause of action; thus, the Civil Court correctly denied the branch of plaintiff’s motion seeking summary judgment on this cause of action.
For the reasons stated in Compas Med, P.C. as Assignee of Grandoit, Andre v American Tr. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1826 Q C], decided herewith), the Civil Court correctly granted the branches of defendant’s cross motion seeking summary judgment dismissing the first through fourth, sixth and seventh causes of action.
In view of the foregoing, plaintiff’s remaining arguments are academic.
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))
| Charles Deng Acupuncture, P.C. v New S. Ins. Co. |
| 2017 NY Slip Op 51189(U) [57 Misc 3d 130(A)] |
| Decided on September 15, 2017 |
| 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 September 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1506 Q C
against
New South Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered May 29, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Plaintiff’s arguments as to defendant’s cross motion either lack merit (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), or are not properly before this court, as they are being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Healthway Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51187(U))
| Healthway Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2017 NY Slip Op 51187(U) [57 Misc 3d 130(A)] |
| Decided on September 15, 2017 |
| 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 September 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1125 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Cristina Carollo, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 1, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.
For the reasons stated in Sama Physical Therapy, P.C., as Assignee of Sherod, Hill v New York Cent. Mut. Fire Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2014-1102 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))
| Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2017 NY Slip Op 51186(U) [57 Misc 3d 130(A)] |
| Decided on September 15, 2017 |
| 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 September 15, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1102 K C
against
New York Central Mutual Fire Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Gullo & Associates, LLP (Cristina Carollo, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 1, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 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 plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).
Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the IME scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining arguments are either moot or lack merit.
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017
Reported in New York Official Reports at Fema Med. Supply, Inc. v American Commerce Ins. Co. (2017 NY Slip Op 51160(U))
| Fema Med. Supply, Inc. v American Commerce Ins. Co. |
| 2017 NY Slip Op 51160(U) [57 Misc 3d 128(A)] |
| Decided on September 8, 2017 |
| 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 September 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2754 Q C
against
American Commerce Insurance Company, Respondent.
Amos Weinberg, Esq., for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered October 31, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
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, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.
Plaintiff’s motion was properly denied, as plaintiff did not demonstrate either that defendant had failed to deny the claims at issue within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim 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 affirmed.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
Paul Kenny
Chief Clerk
Decision Date: September 08, 2017