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Supreme Court, Appellate Term, Second Department, 9th and 10th Judicial Districts, February 15, 2017

APPEARANCES OF COUNSEL

Gabriel & Shapiro LLC, Wantagh (Jason Moroff and Steven F. Palumbo of counsel), for appellant.

Gialleonardo, McDonald & Turchetti, New York City (Kevon Lewis of counsel), for respondent.

Ordered that 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.

It is undisputed that, during claims processing, plaintiff’s attorney sent defendant a letter requesting that “all other communications relating to this claim” be sent to plaintiff’s attorney. Defendant timely mailed verification and follow-up verification requests to plaintiff but did not send these requests to plaintiff’s attorney. On appeal, plaintiff argues that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter. In the alternative, plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel. Plaintiff maintains that since defendant failed to do so, defendant is not entitled to summary judgment.

Plaintiff’s contention that, pursuant to 11 NYCRR 65-3.6 (b), upon sending the follow-up verification request to plaintiff, defendant was required to send plaintiff’s attorney a delay letter lacks merit, as there is no such requirement, where, as here, the party from whom the verification is sought is the plaintiff,{**55 Misc 3d at 93} rather than another person or entity (see GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]; Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42, 44 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).

To the extent plaintiff contends that, in accordance with the letter received from plaintiff’s counsel, defendant was obligated to send the initial and follow-up verification requests to plaintiff’s counsel, we disagree. Insurers are obligated to comply with the no-fault regulations, which require that both the initial and follow-up verification requests be sent to the party from whom the verification is sought (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]) and, thus, defendant cannot be penalized for sending the verification requests to plaintiff notwithstanding the request from plaintiff’s counsel (cf. St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]; New York Hosp. Med. Ctr. of Queens v State Farm Mut. Auto. Ins. Co., 293 AD2d 588 [2002]). In addition, we note that if plaintiff was confused as to why the requests were sent to it or whether it needed to respond to the requests, “[a]ny confusion on the part of the plaintiff . . . should have been addressed by further communication, not inaction” (Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

In light of the foregoing, we find no basis to disturb the order of the District Court.

Accordingly, the order is affirmed.

Marano, P.J., Garguilo and Brands, JJ., concur.

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Stern & Montana, LLP, New York, NY (Richard Montana of counsel), for appellant.

In an action for a judgment declaring, inter alia, that the plaintiff is not obligated to reimburse certain no-fault medical payments with respect to a motor vehicle collision that occurred on September 11, 2011, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated January 9, 2014, which denied its unopposed motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., upon their failure to appear or answer the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the plaintiff’s motion pursuant to CPLR 3215 for leave to enter a judgment against the defendants Sharine Carrier, Roland Sebastian-Hall, Enis Sebastian, Jennine Eastmond, Active Care Medical Supply Corp., Amy M. Kott, MT, Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc., declaring that (a) a motor vehicle collision that occurred on September 11, 2011, was an excluded act and all claims arising from that accident are excluded under the terms and conditions of an automobile liability insurance policy issued to the defendant Enis Sebastian, and (b) the plaintiff is not obligated to reimburse certain no-fault medical payments, defend and indemnify the defendant Enis Sebastian against any third-party claims, or provide coverage for any uninsured or underinsured motorist claims with respect to the subject motor vehicle collision is granted.

On September 11, 2011, the defendants Sharine Carrier, Roland Sebastian-Hall, and Jennine Eastmond (hereinafter collectively the claimants) allegedly were injured when their vehicle was sideswiped by a U-Haul truck. After the accident the claimants sought medical treatment from, among others, the defendants Active Care Medical Supply Corp., Graham Wellness Medical, P.C., Heel to Toe Foot Center, LLC, Immediate Imaging, P.C., Jing Luo Acupuncture, P.C., Precision Medical Diagnostics of NY, P.C., and Ultra Ortho Products, Inc. (hereinafter collectively the corporate medical providers), and the defendant Amy M. Kott, MT. Thereafter, the corporate medical providers and Kott sought reimbursement of no-fault benefits under an automobile liability insurance policy issued to the defendant Enis Sebastian by the plaintiff, Allstate Property & Casualty Insurance Company, the insurer of the claimants’ vehicle. On November 21, 2012, the plaintiff commenced this action for a judgment declaring, inter alia, that it is not obligated to reimburse the [*2]no-fault medical payments made by the medical providers with respect to the subject motor vehicle collision. The individual defendants were served pursuant to CPLR 308 (4) and the corporate medical providers were served via the secretary of state. On December 20, 2012 the plaintiff served the corporate medical providers with an additional copy of the summons and complaint pursuant to CPLR 3215 (g) (4). After the individual defendants and the corporate medical providers failed to appear or answer, the plaintiff moved by notice of motion dated August 13, 2013, for leave to enter a default judgment against them. The Supreme Court denied the unopposed motion.

On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant’s default (see CPLR 3215 [f]; Roy v 81E98th KH Gym, LLC, 142 AD3d 985 [2016]; Gershman v Ahmad, 131 AD3d 1104, 1105 [2015]; Dupps v Betancourt, 99 AD3d 855, 855 [2012]; Atlantic Cas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651 [2011]). Here, the plaintiff provided copies of the affidavits of service, a complaint verified by the plaintiff’s authorized agent, an affidavit of merit, documentary evidence, and proof that the individual defendants and the corporate medical providers had defaulted in answering the complaint. The plaintiff’s proof was sufficient to establish a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]). Accordingly, the plaintiff’s unopposed motion for leave to enter a default judgment against the individual defendants and the corporate medical providers should have been granted. Rivera, J.P., Dillon, Chambers and Hinds-Radix, JJ., concur.

Decided on February 8, 2017

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 22, 2015. 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, defendant moved for summary judgment dismissing the complaint, arguing that, after applying the deductible set forth in the insurance policy in question, it had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff opposed the motion, arguing that defendant’s motion was untimely pursuant to CPLR 3212 (a), that defendant had not properly applied the fee schedule, and that defendant had failed to show that a deductible was applicable since the copy of the automobile insurance policy included in the moving papers contains an out-of-state certification. By order entered January 22, 2015, the Civil Court granted defendant’s motion.

It is uncontroverted that defendant served plaintiff with its original motion for summary judgment dismissing the complaint on April 14, 2014, which was within 120 days of the filing of the notice of trial on December 13, 2013. However, the Clerk of the Kings County Civil Court did not accept the filing of the motion because the notice of motion contained an incorrect address for the court. Thereafter, in May 2014, defendant filed a second, otherwise identical, motion for summary judgment dismissing the complaint, which set forth the correct address for the Civil Court. “It does not follow from the fact that this single motion had been served . . . on two separate occasions that its timeliness must be judged by the later . . . rather than the earlier . . . date of service. The mere fact that the defendant, after having served its original notice of motion on the plaintiff’s attorney in a timely fashion, filed new motion papers seeking the same relief, [was] not fatal to [such motion]” (Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 562 [2006] [internal quotation marks and citations omitted]). Consequently, we find that the Civil Court did not improvidently exercise its discretion in determining that defendant’s second motion for summary judgment dismissing the complaint was not untimely.

With respect to the merits of defendant’s motion, we note that, on appeal, plaintiff does not renew its claim that defendant did not properly apply the fee schedule. Plaintiff claims that the copy of the automobile insurance policy annexed to defendant’s moving papers was [*2]inadmissible because it lacked a proper certificate of conformity. However, the absence of a certificate of conformity is not a fatal defect (see Bank of NY Mellon v Vytalingam, 144 AD3d 1070 [2016]; Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co., 46 Misc 3d 138[A], 2015 NY Slip Op 50078[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the case at bar, plaintiff failed to make any showing of prejudice. Inasmuch as the affidavits and documents defendant submitted sufficiently established that the automobile insurance policy in question had a $200 personal injury protection deductible, we find no basis to disturb the Civil Court’s implicit finding that defendant, pursuant to the terms of the policy, was entitled to deduct $200 from the sum it was required to pay plaintiff for the services plaintiff had rendered to its assignor in July 2007.

Accordingly, the order is affirmed.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 3, 2015. The order, insofar as appealed from, granted defendant’s motion to dismiss the complaint for plaintiff’s failure to provide discovery, pursuant to an order of the same court (Richard G. Latin, J.) entered July 28, 2014, to the extent of directing plaintiff to serve responses to certain enumerated demands within 60 days.

ORDERED that the order entered February 3, 2015, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant, on December 5, 2013, served an answer and demands for discovery including “supplemental combined demands.” Plaintiff did not provide the requested discovery but, instead, moved for summary judgment. Thereafter, defendant cross-moved, among other things, to dismiss the complaint pursuant to CPLR 3126, or, in the alternative, to compel plaintiff to respond to the discovery demands. Plaintiff served papers in opposition to defendant’s cross motion, which included incomplete responses to the discovery demands. By order entered July 28, 2014, the Civil Court (Richard G. Latin, J.) granted defendant’s cross motion to the extent of directing plaintiff to provide responses to the “supplemental combined demands” within 60 days. The order and notice of its entry were served on plaintiff’s counsel on August 5, 2014. Plaintiff did not serve the ordered discovery responses but, instead, served a notice of trial and certificate of readiness, which defendant’s attorneys received approximately one week later, on August 13, 2014.

Defendant then moved, pursuant to CPLR 3126, to dismiss the complaint, or, in the alternative, to vacate the notice of trial and certificate of readiness, or, in the alternative, to direct plaintiff to provide discovery responses, in accordance with the Civil Court’s July 28, 2014 order. Plaintiff opposed the motion and annexed responses which consisted primarily of objections to the “supplemental combined demands.” Plaintiff appeals from so much of an order of the Civil Court (Jodi Orlow, J.) entered February 3, 2015 as granted defendant’s motion to the extent of directing plaintiff to provide, within 60 days, responses to certain enumerated discovery demands and stated that the action would be dismissed based upon an affirmation of noncompliance by defense counsel.

Since the demands for discovery were served on plaintiff’s counsel on December 5, 2013 [*2]and plaintiff did not challenge the propriety of the demands within the time prescribed by CPLR 3122 (a), plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands at issue seek information which is palpably improper or privileged. In light of the foregoing and the Civil Court order entered July 28, 2014, and as plaintiff’s remaining contentions lack merit, we find no basis to disturb the February 3, 2015 order, insofar as appealed from.

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

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decided on February 8, 2017

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

Decided on January 20, 2017

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

Decided on January 20, 2017

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 22, 2014. The judgment entered pursuant to an order of the same court dated July 2, 2014 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 $549.18.

ORDERED that the judgment is reversed, without costs, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

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, among others, that the assignor’s failure to appear for examinations under oath (EUOs) violated a condition precedent to coverage, which provided defendant with a basis for its founded belief that the underlying accident was not a covered event. In the alternative, defendant’s cross motion sought a stay of the action pending the determination of a Supreme Court declaratory judgment action involving the same accident, medical provider and assignor. By order dated July 2, 2014, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant had failed to demonstrate that the assignor had failed to appear at two scheduled EUOs. A judgment was subsequently entered in plaintiff’s favor on August 22, 2014, from which defendant appeals.

Upon a review of the record, we find that plaintiff’s moving papers failed to establish either that defendant had failed to deny the claim within the requisite 30-day period or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; 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]). Consequently, plaintiff failed to establish its prima facie case.

In papers submitted in support of defendant’s cross motion, it was alleged that defendant had requested that the assignor appear for scheduled EUOs and that, although several EUOs had been rescheduled at the request of the assignor’s attorney, the assignor had ultimately failed to appear at the EUO scheduled on August 28, 2012, which EUO had not been rescheduled. [*2]Defendant’s papers further stated that defendant had subsequently mailed a denial of claim form to plaintiff which denied plaintiff’s claim on the ground that its assignor had failed to appear at EUOs. Inasmuch as defendant’s papers did not establish that plaintiff’s assignor had failed to appear for two duly scheduled EUOs, the Civil Court correctly found that defendant had failed to establish its entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 129[A], 2016 NY Slip Op 50928[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

We pass on no other issue.

Accordingly, the judgment is reversed, so much of the order dated July 2, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

Solomon, J.P., Weston and Elliot, JJ., concur.

Decided on January 20, 2017

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