Dwyer & Taglia, Esqs. (Joshua T. Reece, Esq.), for appellant. Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), dated March 21, 2014. The order denied defendant’s motion to vacate, pursuant to, among other things, CPLR 5015 (a) (1) or, in the alternative, on the ground that the prejudgment interest was erroneously calculated, a default judgment of the same court entered July 10, 2013 upon defendant’s failure to appear at trial.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion to vacate, pursuant to, among other things, CPLR 5015 (a) (1) or, in the alternative, on the ground that the prejudgment interest was erroneously calculated, a default judgment entered on July 10, 2013 upon defendant’s failure to appear at trial.

A movant seeking to vacate a default judgment based on an excusable default is required to demonstrate both that there was a reasonable excuse for the default and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843 [2011]). Here, defendant failed to demonstrate a meritorious defense. Defendant purported to deny the claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. However, the denial of claim forms annexed to defendant’s moving papers were dated more than one month before defendant had received the claims. In view of the foregoing, we need not determine whether defendant demonstrated an excusable default.

In addition, to the extent defendant contends that vacatur is warranted because the judgment awarded plaintiff interest which accrued prior to commencement of the action, such an [*2]argument lacks merit in light of defendant’s failure to establish that it had ever mailed denial of claim forms to plaintiff for the claims at issue (see Corona Hgts. Med., P.C. v Liberty Mut. Ins. Co., 32 Misc 3d 8 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decision Date: July 21, 2017

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Petre and Zabokritsky, P.C., respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 16, 2013. The order, insofar as appealed from, denied defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action is granted.

Plaintiff commenced this action to recover first-party no-fault benefits for services that had been rendered to eight different assignors in connection with three separate motor vehicle accidents. The complaint alleged separate causes of action for each assignor. Defendant moved, pursuant to CPLR 603, to sever from this action the first, third through fifth, and seventh causes of action, arguing that these causes of action arose out of two of the accidents, and that the defenses at issue in these causes of action involved different questions of fact and law from those involved in the remaining causes of action. By order entered December 16, 2013, the Civil Court, insofar as is relevant to this appeal, denied defendant’s cross motion.

The basis set forth on the denial of claim forms for the denial of the claims at issue in the second, sixth, and eighth causes of action was that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). By contrast, the claims at issue in the first, third through fifth, and seventh causes of [*2]action were denied on the grounds of lack of medical necessity after independent medical examinations and application of the workers’ compensation fee schedule. The claims incorporated in the first, third through fifth, and seventh causes of action are therefore likely to raise few, if any, issues of fact in common with those incorporated in the second, sixth and eighth causes of action (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action is granted (see Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decision Date: July 21, 2017

Korsunskiy Legal Group, P.C. (Michael Hoenig, 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, Kings County (Katherine A. Levine, J.), entered January 17, 2014. 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 reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.

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 plaintiff’s assignor had failed to appear for scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered January 17, 2014, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]). Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely. Consequently, defendant is precluded from raising its proferred defense and, thus, defendant’s motion for summary judgment dismissing the [*2]complaint should have been denied (see 11 NYCRR 65-3.8; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

As plaintiff’s cross motion papers established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]), plaintiff is entitled to summary judgment.

Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the compliant is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Law Offices of Mandell and Santora, (Eitan Nof, Esq.), for appellant. Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 12, 2014. The judgment, entered upon a decision of the same court dated February 7, 2014, insofar as appealed from, after a nonjury trial, in effect, dismissed so much of the complaint as sought to recover upon a claim in the sum of $12,862.87.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 7, 2014 is deemed a premature notice of appeal from the judgment entered March 12, 2014 (see CPLR 5520 [c]); and it is further,

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

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for a directed verdict upon a claim dated November 3, 2007 was granted and the trial proceeded with respect to the medical necessity of a claim seeking the sum of $12,862.87 for spinal surgery. Defendant’s witness was the orthopedist who had prepared the peer review report upon which defendant relied when it denied plaintiff’s claim. Although plaintiff’s counsel cross-examined defendant’s witness, plaintiff did not call any witnesses to rebut defendant’s doctor’s testimony that the surgery was not medically necessary because it was not causally related to the accident in question. The Civil Court awarded plaintiff the principal sum of $1,376.32 upon the November 3, 2007 claim, and found in favor of defendant and dismissed the complaint insofar as it sought to recover upon the claim for spinal surgery. Plaintiff appeals from so much of the judgment as, in effect, dismissed so much of the complaint as sought to recover upon the claim in the sum of $12,862.87.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, [*2]bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]).

The record supports the determination of the Civil Court, which was based upon its assessment of the credibility of defendant’s witness. Since defendant sufficiently rebutted the presumption of medical necessity and plaintiff failed to meet its ultimate burden of proving, by a preponderance of the evidence, that the spinal surgery was medically necessary, we find no basis to disturb the Civil Court’s finding with respect thereto (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

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

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie A. Tebbett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). In the alternative, defendant, in effect, sought summary judgment dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule. By order entered March 16, 2012, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at the EUOs.

According to the affidavit submitted by defendant in support of its motion, the initial EUO had been rescheduled two times by mutual agreement, each time prior to the scheduled date. We do not consider a mutual rescheduling, which occurs prior to the date of a scheduled [*2]EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Consequently, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not establish as a matter of law that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at two duly scheduled EUOs should have been denied.

Since the Civil Court did not determine the branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule, the matter is remitted to the Civil Court for a determination of that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on July 14, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 15, 2014, deemed from a judgment of the same court entered February 11, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 15, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,188.66.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the claims at issue had been timely and properly denied based on plaintiff’s failure to appear for scheduled examinations under oath (EUOs). The Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground, among others, that the facts submitted by defendant in support of its cross motion showed that, while defendant declared that plaintiff had failed to appear for scheduled EUOs, defendant had rescheduled each EUO before the date set for each EUO and that, prior to each EUO, defendant was aware that plaintiff was unable to appear. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant denied the claims at issue based upon the alleged failure of plaintiff to appear at duly scheduled EUOs. With respect to the claims which defendant admits it received between January 18, 2012 and February 14, 2012, defendant’s moving papers demonstrate that the first EUO scheduling letter sent to plaintiff was mailed more than 30 days after defendant had received these claims. As a result, contrary to defendant’s contention, defendant failed to demonstrate that it had properly denied these claims based upon plaintiff’s failure to appear for [*2]duly scheduled EUOs (see Great Health Care Chiropractic, P.C. v Travelers Ins. Co., 49 Misc 3d 145[A], 2015 Misc 3d 51665[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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]). Since the EUO scheduling letters sent to plaintiff were a nullity with respect to these claims, defendant failed to establish the existence of a triable issue of fact with respect thereto (see O & M Med., P.C., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U]).

While defendant’s time to pay or deny the remaining claims may have been tolled by EUO scheduling letters sent to plaintiff by defendant, as the Civil Court noted, defendant’s papers demonstrate that, prior to each scheduled EUO of plaintiff, defendant sent plaintiff a letter rescheduling the EUO of plaintiff for a different date. As a result, the fact that plaintiff did not appear on the date originally set forth in a scheduling letter does not constitute a failure to appear, as defendant had already changed the date for which that EUO had been scheduled. In view of the foregoing, defendant failed to show a triable issue of fact as to whether it had properly denied these claims based upon plaintiff’s failure to appear for two duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), let alone establish it as a matter of law.

Accordingly, the judgment is affirmed.

PESCE, P.J., ALIOTTA AND SOLOMON, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 7, 2014. The order, upon a motion by plaintiff for summary judgment and a cross motion by defendant for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126, denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date as the parties shall agree, but in no event later than 60 days thereafter; 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 moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126. By order entered March 7, 2014, the Civil Court denied plaintiff’s motion and granted the branch of defendant’s cross motion seeking summary judgment.

The affidavit submitted by defendant’s claims representative stated that each claim had been received on July 31, 2012, but also stated that defendant had first received notice of the claims with the submission of the claims on July 10, 2012. In light of this discrepancy, the record does not establish, as a matter of law, that defendant timely denied plaintiff’s claims based upon a late notice of the accident (see generally Complete Radiology, P.C. v Progressive Ins. [*2]Co., 37 Misc 3d 133[A], 2012 NY Slip Op 52079[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Fiutek v Clarendon Natl. Ins. Co., 33 Misc 3d 127[A], 2011 NY Slip Op 51840[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), a precludable defense. Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing the complaint should have been denied.

However, the record establishes that plaintiff did not serve responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure, or appear for an examination before trial. Indeed, plaintiff failed to oppose this branch of defendant’s cross motion. CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s denial of claim form denied the claim on the ground that the amount billed exceeded the amount permitted by the workers’ compensation fee schedule and as defendant is defending this action on that same ground, among others, the discovery demands at issue were material and necessary to defendant’s defense (see e.g. Reilly v Oakwood Hgts. Community Church, 269 AD2d 582 [2000]; Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the complaint is denied and the branch of defendant’s cross motion seeking, in the alternative, to strike the complaint and dismiss the action pursuant to CPLR 3126 is granted to the extent of compelling plaintiff to provide responses to defendant’s demand for interrogatories, demand for discovery and inspection, and demand for expert disclosure within 60 days of the date of the order entered hereon, and by further compelling plaintiff to appear for an examination before trial within 30 days thereafter, or on such other date to which the parties shall agree, but in no event later than 60 days thereafter.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, 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, Kings County (Harriet L. Thompson, J.), entered January 24, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, alleging that plaintiff and plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered January 24, 2014, the Civil Court granted defendant’s motion.

As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff had been timely, since defendant stated that the letter was sent more than 30 days after defendant had received the claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 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]). Moreover, defendant’s moving papers did not demonstrate that the claims had been timely denied (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA AND SOLOMON, JJ., concur.

Decision Date: July 14, 2017

Decided on July 14, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS