Reported in New York Official Reports at Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51608(U))
| Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. |
| 2016 NY Slip Op 51608(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2674 Q C
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered November 15, 2013. 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 examinations under oath.
For the reasons stated in Art of Healing Medicine, P.C., as Assignee of Owen Minns v Utica Mut. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2716 Q C], decided herewith), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51607(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51607(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2348 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 16, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath. By order entered September 16, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51606(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51606(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2347 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 17, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 17, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ____ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51605(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51605(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2346 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 16, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 16, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ___ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51604(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51604(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2345 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 16, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 16, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op _____ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51603(U))
| Omphil Care, P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51603(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2293 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 13, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ____ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U))
| Omphil Care, Inc. v Allstate Ins. Co. |
| 2016 NY Slip Op 51602(U) [53 Misc 3d 146(A)] |
| Decided on November 1, 2016 |
| 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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2290 Q C
against
Allstate Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 13, 2013. 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 modified by providing that defendant’s cross 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 moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 13, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Plaintiff correctly contends that defendant’s cross-moving papers failed to establish, as a matter of law, that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant did not demonstrate that it is not precluded from asserting its proffered defense. Consequently, defendant is not entitled to summary judgment. However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim 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 cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
Reported in New York Official Reports at Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. (2016 NY Slip Op 51598(U))
| Central Park Physical Medicine & Rehab., P.C. v National Liab. & Fire Ins. Co. |
| 2016 NY Slip Op 51598(U) [53 Misc 3d 145(A)] |
| Decided on October 31, 2016 |
| 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 31, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2015-350 S C
against
National Liability & Fire Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Second District (Carl J. Copertino, J.), dated December 23, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, for summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). In opposition, plaintiff argued with respect to those causes of action that defendant had failed to establish that it had timely mailed its IME scheduling letters and denial of claim forms. By order dated December 23, 2014, the District Court, among other things, denied those branches of defendant’s motion.
Upon a review of the record, we find that defendant failed to establish as a matter of law that the IME scheduling letters at issue had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, as defendant did not demonstrate that its 30-day period to pay or deny the claims had been tolled, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
Iannacci, J.P., Tolbert and Garguilo, JJ., concur.
Decision Date: October 31, 2016
Reported in New York Official Reports at Renelique v Lancer Ins. Co. (2016 NY Slip Op 51596(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Lancer Insurance Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 11, 2014. The order, insofar as appealed from and as limited by the brief, granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3126.
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 answered the complaint and served demands for discovery, including a notice to take the deposition of plaintiff. Thereafter, defendant moved, insofar as is relevant to this appeal, to compel plaintiff to provide discovery. Defendant argued in support of its motion that it sought plaintiff’s testimony as well as documentary evidence in connection with its defense that plaintiff was ineligible for reimbursement of no-fault benefits. By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”
When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.
The determination of whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the motion court (see CPLR 3126; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922 [2012], Giano v Ioannou, 78 AD3d 768 [2010], Fishbane v Chelsea Hall, LLC, 65 AD3d 1079 [2009]; Mir v Saad, 54 AD3d 914 [2008]; see also Kihl v Pfeffer, 94 NY2d 118 [1999]). Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply (see Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2012]; Rowell v Joyce, 10 AD3d 601 [2004]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: October 31, 2016
Reported in New York Official Reports at Infinity Chiropractic Health, P.C. v Republic W. Ins. Co. (2016 NY Slip Op 51564(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Republic Western Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered October 4, 2013. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action are granted.
Plaintiff commenced this action to recover assigned first-party no-fault benefits arising from a motor vehicle accident which occurred on July 16, 2010. Shortly before plaintiff brought this action, defendant had commenced a declaratory judgment action in the Supreme Court, New York County, naming, among others, various medical providers, including plaintiff herein, and the three assignors herein, and seeking a declaration that defendant owed no duty to pay first-party no-fault claims with respect to the July 16, 2010 accident. By order entered December 20, 2011, the Supreme Court granted, on default, defendant’s motion for the entry of a default declaratory judgment against, insofar as is relevant, Infinity Chiropractic Health, P.C., Lucky Johnson and Demetrius McClammy, but not as against Lawrence Jones, individually.
Defendant subsequently moved in the Civil Court for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrines of res judicata and collateral estoppel by virtue of the Supreme Court order in the declaratory judgment action. By order entered October 4, 2013, the Civil Court granted the branches of defendant’s motion seeking dismissal of the first through fourth causes of action, which pertained to assignors Demetrius McClammy and Lucky Johnson. However, insofar as is relevant to this appeal, the Civil Court denied the branches of defendant’s unopposed motion seeking summary judgment dismissing the fifth through eighth causes of action, which causes of action related to services that plaintiff had rendered to assignor Lawrence Jones, on the ground that the order in the declaratory judgment action had not been granted as against Lawrence Jones, individually. Defendant appeals from so much of the order as denied the branches of its motion seeking summary judgment dismissing the fifth through eighth causes of action.
The doctrine of res judicata is designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 772 [5th ed]). Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims or causes of action arising out of the same transaction which was raised or could have been raised in the prior litigation (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Neiberg Realty Corp., 250 NY 304, 306-207 [1929]). Furthermore, the doctrine of res judicata is applicable to an order or judgment taken by default which has not been vacated (see Matter of Hunter, 4 NY3d at 269; Barbieri v Bridge Funding, 5 AD3d 414, 415 [2004]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Plaintiff was named and served in the declaratory judgment and ultimately defaulted therein. As plaintiff’s right to recover as an assignee of Lawrence Jones was fully litigated in the Supreme Court action, notwithstanding defendant’s admitted failure to serve Lawrence Jones individually in that action, and notwithstanding that the declaratory judgment made no determination as against Lawrence Jones, individually, the order in the declaratory judgment action was a conclusive final determination barring plaintiff from recovering for any services it rendered to Lawrence Jones arising from the July 16, 2010 accident. Consequently, plaintiff’s claims underlying the fifth through eighth causes of action are barred (see Uffer v Travelers Cos., Inc., 88 AD3d 690, 691 [2011]; EBM Med. Health Care, P.C., 38 Misc 3d at 3).
Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing the fifth through eighth causes of action are granted.
Weston, J.P., Aliotta and Elliot, JJ., concur.
Decision Date: October 21, 2016