Decided on December 2, 2015

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, Queens County (Ulysses Bernard Leverett, J.), entered February 20, 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 the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action 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. The Civil Court denied plaintiff’s motion, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action as premature because plaintiff had failed to provide requested verification, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the remaining causes of action due to the failure of plaintiff’s assignor to appear for independent medical examinations (IMEs) and examinations under oath (EUOs).

In support of the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also demonstrated prima facie that it had not received the requested verification and thus that plaintiff’s third cause of action is premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to and received by defendant (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this cause of action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Contrary to plaintiff’s contention, defendant established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims underlying the remaining causes of action on that ground, defendant was entitled to summary judgment dismissing the remaining causes of action. In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled EUOs, which alleged nonappearance was another basis for the denial of these claims.

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s third cause of action is denied.

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

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 2, 2015

APPEARANCES OF COUNSEL

Gary Tsirelman P.C., Brooklyn (David M. Gottlieb of counsel), for appellant.

Law Office of Printz & Goldstein, Woodbury (Lawrence J. Chanice of counsel), for respondent.

Ordered that the order is reversed, without costs, and plaintiff’s motion to restore the action to the trial calendar is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff filed a notice of trial on May 19, 2008. A notation on the New York State Unified Court System eCourts public website indicates that the matter was “settled” on March 9, 2009. Approximately 31/2 years later, plaintiff, asserting that the case was mistakenly marked “settled,” moved to restore the action to the trial calendar and for an order exempting plaintiff from filing another notice of trial. Defendant opposed plaintiff’s motion and cross-moved to dismiss the complaint based upon plaintiff’s failure to proffer a reasonable excuse for not timely moving to restore the case. Plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion as untimely, finding that restoration of the case would prejudice defendant.

In support of plaintiff’s motion, its attorney stated that her review of the file shows that there had been no settlement, whereas defendant’s attorney asserts that the case was dismissed because the same causes of action had been settled with previous counsel. While the eCourts website, of which we may take judicial notice (see Matter of Cento Props. Co. v Assessor, 71 AD3d 1015 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]), states that this matter was settled on March 9, 2009, such a notation on the website “does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy the open-court requirement of CPLR 2104” (Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2006]; see Johnson v Four G’s Truck Rental, 244 AD2d 319 [1997]). Furthermore, as there is no indication that the{**50 Misc 3d at 106} purported settlement was reduced to a writing and signed by the parties, or made in open court, an enforceable settlement agreement cannot be determined from the record before us (see CPLR 2104; Stuart Realty Co. v Rye Country Store, 296 AD2d 455 [2002]). Since there is no proof that an enforceable settlement was ever reached, plaintiff’s motion should have been granted. We note that, contrary to the determination of the Civil Court, plaintiff was not obligated to demonstrate in its motion, among other things, lack of prejudice to defendant, since the case had been marked “settled” (see Long-Waithe v Kings Apparel Inc., 10 AD3d 413[*2][2004]), whether or not erroneously. In view of the foregoing, we reach no other issue.

Accordingly, the order is reversed and plaintiff’s motion to restore the action to the trial calendar is granted.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.; op 39 Misc 3d 1216[A], 2013 NY Slip Op 50633[U]), entered March 7, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

On June 28, 2008, plaintiff’s assignor was injured in an automobile accident. On July 14, 2008, plaintiff’s assignor assigned her right to be reimbursed for first-party no-fault benefits to plaintiff. On September 29, 2008, defendant received a claim from plaintiff for services rendered to plaintiff’s assignor between August 13, 2008 and September 9, 2008. By letter dated October 6, 2008, defendant notified plaintiff that the claim was delayed pending an examination under oath (EUO) of plaintiff’s assignor, which had previously been scheduled for October 8, 2008. On October 27, 2008, defendant received another claim from plaintiff for services rendered to plaintiff’s assignor between September 8, 2008 and October 7, 2008. On October 27, 2008, defendant notified plaintiff that the claim was delayed pending an EUO of plaintiff’s assignor scheduled for November 7, 2008. Defendant also requested other documentary verification. By letter dated December 23, 2008, defendant sent a letter to plaintiff’s assignor advising her that defendant had voided ab initio the automobile insurance policy which she had obtained due to her having made material misrepresentations as to where the vehicle would be kept. On December 29, 2008, defendant denied both of the claims which are at issue in this action on the ground there was no coverage because, by the December 23, 2008 letter, defendant had rescinded the policy ab initio. On or about February 17, 2009, defendant commenced an action in Virginia against the assignor to void the insurance policy ab initio due to the assignor’s material misrepresentations. On August 18, 2009, the assignor and defendant agreed to the entry of a “dismissal order” in the Virginia action which voided the insurance policy ab initio.

On July 29, 2010, plaintiff commenced this action to recover assigned first-party no-fault benefits upon the claims which plaintiff had submitted and defendant had received. Subsequently, defendant moved for summary judgment dismissing the complaint based upon the Virginia court’s August 18, 2009 order rescinding plaintiff’s assignor’s underlying automobile insurance policy. By order entered March 7, 2013, the Civil Court granted defendant’s motion.

In support of its motion, defendant submitted, among other things, the February 2009 complaint in the Virginia action and a copy of the “dismissal order” in the Virginia action, dated August 18, 2009, signed by counsel for both parties, which declared the subject insurance policy to be void ab initio.

On appeal, plaintiff argues that the Virginia “dismissal order” should not have been considered by the Civil Court, as the order was not certified. Plaintiff further argues that, in any event, it is not bound by the order, since it was neither a party to, nor in privity with a party to, the Virginia action.

We agree with plaintiff’s contention that, since it was not a party to the Virginia action, it is not bound by the “dismissal order” rendered therein, as it did not have a full and fair opportunity to defend its interests in that action. Although plaintiff’s assignor was a party to the Virginia action, defendant failed to show that plaintiff was in privity with the assignor at the time the Virginia action was commenced (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Quality Psychological Servs. v Infinity Prop. & Cas. Co., 47 Misc 3d 142[A], 2015 NY Slip Op 50645[U] [App Term, 1st Dept 2015]; see also Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant was not entitled to judgment as a matter of law.

We reach no other issue.

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

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered August 11, 2011. The judgment, entered pursuant to a decision of the same court dated May 3, 2011, after a nonjury trial, awarded plaintiff the principal sum of $10,859.64 plus statutory interest, with the exception of the period from February 13, 2004 through March 22, 2006, during which time the accrual of statutory interest was stayed pursuant to the parties’ stipulation.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated May 3, 2011 is deemed a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009; as so modified, the judgment is affirmed, without costs, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

Plaintiff commenced this action to recover assigned first-party no-fault benefits for medical services rendered. In a decision after a nonjury trial, the Civil Court awarded plaintiff the principal sum of $10,859.64 plus statutory interest, except for the period from February 13, 2004 to March 22, 2006, during which time the accrual of interest had been stayed pursuant to the parties’ prior stipulation which had vacated the dismissal of the action. After defendant filed its notice of appeal from the decision, a judgment was subsequently entered. We deem the notice of appeal from the decision a premature notice of appeal from the judgment entered August 11, 2011 (see CPLR 5520 [c]). On appeal, defendant challenges plaintiff’s proof of mailing of the claims and whether plaintiff established that the claims remained unpaid at the time of trial. Defendant further argues that, due to plaintiff’s inaction after the dismissal of the action had been vacated, the accrual of statutory interest should be further stayed until February 27, 2009, the date plaintiff resumed prosecution of the action by filing a notice of trial.

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, 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 [*2]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, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

As plaintiff’s bills and proof of mailing were admitted into evidence through the testimony of its owner, who testified that the bills had not been paid, plaintiff sustained its burden of proving its prima facie case at trial. Defendant rested its case without offering a defense. Consequently, the Civil Court properly granted judgment to plaintiff (see Peace of Mind, Social Work, P.C. v Travelers Aetna Prop. Cas. Corp., 43 Misc 3d 127[A], 2014 NY Slip Op 50475[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Urban Radiology, P.C. v GEICO Gen. Ins. Co., 39 Misc 3d 146[A], 2013 NY Slip Op 50850[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

With respect to the award of statutory interest, the record shows that plaintiff did nothing to prosecute this action for approximately three years after the parties had stipulated to vacate the dismissal of the action. Plaintiff should not be rewarded for its years of inaction by receiving a windfall of interest (see 11 NYCRR 65-3.9 [d]; Aminov v Country Wide Ins. Co., 43 Misc 3d 87, 89 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the judgment is modified by providing that the accrual of statutory interest is further stayed to February 27, 2009, and the matter is remitted to the Civil Court for a recalculation of the interest in accordance herewith and the entry of an appropriate amended judgment thereafter.

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

Decided on November 30, 2015

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 (William A. Viscovich, J.), entered April 16, 2014. The judgment, entered pursuant to a decision of the same court dated August 19, 2013, after a nonjury trial, awarded plaintiff the principal sum of $8,939.66.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court stated that it found that plaintiff had established its prima facie case and that defendant had timely denied the claim. Furthermore, the court stated: “That shifts the burden to the Defendant to demonstrate the lack of medical necessity for the services in question.” In its decision after trial, the court stated that the necessity of the assignor’s right-shoulder surgery was not in question, and that the burden was on defendant to demonstrate that the injuries requiring the surgery were not related to the subject accident. The court further stated that “all things being equal,” it must find in favor of plaintiff, and, thus, the court awarded plaintiff the principal sum of $8,939.66. Defendant appeals from the decision. A judgment was subsequently entered on April 16, 2014. On the court’s own motion, the notice of appeal from the decision dated August 19, 2013 is deemed a premature notice of appeal from the judgment entered April 16, 2014 (see CPLR 5520 [c]).

It is well settled that “a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are [sic] overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer” (Viviane Etienne Med. Care v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]). At issue in this case is which party bears the burden of proving at trial the medical necessity or the lack of medical necessity of the assignor’s right-shoulder surgery, i.e., whether the injury was causally related to the accident in question. This court has previously stated that where, in rebutting a presumption of medical necessity which attaches to a claim form, an insurer is [*2]successful in satisfying its burden at trial of demonstrating a lack of medical necessity, “it is ultimately plaintiff who must prove, by a preponderance of the evidence, that the services or supplies were medically necessary” (Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., 37 Misc 3d 19, 22 n [App Term, 2d, 11th & 13th Jud Dists 2012]). Indeed, we view this as being no different from when an insurer, who has preserved such a defense by a timely denial, presents sufficient proof at trial that the billed-for services were not actually rendered or that the durable medical equipment was not provided, thereby shifting the burden back to the plaintiff provider to ultimately establish that it is seeking to recover for “necessary expenses” which were actually incurred (see 11 NYCRR 65-1.1 [c]). Thus, we hold that the Civil Court erred in ruling that defendant bore the ultimate burden of proof. As a result, since the decision in favor of plaintiff may have been the product of the court’s incorrect application of the burden of proof, a new trial is required.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

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

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated December 10, 2013. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

Plaintiff, an attorney who had represented a medical provider in various first-party no-fault actions, commenced this action to recover payment of a 12½% contingent fee, in the amount of $893.76, pursuant to a written attorney’s fee agreement with the provider. The complaint stated that the provider and defendant had settled some of the actions in or about June 2012, and that the attorney’s fee, among other things, was to be made payable to the order of plaintiff and mailed to his office. The complaint further stated that, in January 2013, plaintiff, after having received no payment, called defendant and was informed that all of the settlement monies, including the attorney’s fee, had been forwarded to the Internal Revenue Service (IRS) due to a tax levy on the provider. The complaint indicated that, notwithstanding a limit on attorney’s fees for no-fault actions, plaintiff was entitled to an excess award because of his “extraordinary” services. The complaint asserted that, because plaintiff’s lien on the principal settlement involving the provider was superior to a claim by the IRS, defendant improperly remitted the money to the IRS and was, therefore, liable to plaintiff in the sum of $893.76.

Defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), on the grounds that the complaint failed to state that plaintiff had given defendant notice of a contingency agreement prior to commencement of the action, in accordance with Judiciary Law § 475-a, and that an attorney’s fee for work in a no-fault action is limited to the statutory attorney’s fee provided by Insurance Law § 5106 (a) and the regulations promulgated thereto. Plaintiff opposed defendant’s motion and now appeals from an order of the District Court which granted defendant’s motion to dismiss the complaint.

In considering a motion to dismiss a complaint for failure to state a cause of action (CPLR 3211 [a] [7]), a court must accept the facts alleged in the complaint as true and give the plaintiff the benefit of all favorable inferences to determine whether the facts as alleged fit within any cognizable legal theory (see Canzona v Atanasio, 118 AD3d 837 [2014]; Breytman v Olinville Realty, LLC, 54 AD3d 703 [2008]; see also Leon v Martinez, 84 NY2d 83 [1994]).

Applying these principles here, the District Court properly granted defendant’s motion to [*2]dismiss the complaint, as the complaint failed to state a cause of action for recovery of contingent attorney’s fees. The complaint acknowledged the limitations on attorney’s fees in no-fault disputes, pursuant to 11 NYCRR 65-4.6 (g), which prohibits an attorney from demanding, requesting or receiving from the insurer “any payment of fees not permitted by this section” (11 NYCRR 65-4.6 [g]). Notably, in opposition to defendant’s motion to dismiss the complaint, plaintiff conceded that he had received statutory attorney’s fees as counsel for the provider in the settled first-party no-fault actions. The complaint merely set forth the conclusory allegation that plaintiff was entitled to collect attorney’s fees “in excess of the limitations set forth in” 11 NYCRR 65-4.6 (g) because his services were “extraordinary.” There are no factual allegations in the complaint sufficient to state a cause of action against the insurer for the recovery of contingent attorney’s fees beyond those authorized by statute, or to otherwise manifest any cause of action cognizable at law (see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094 [2011]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793 [2011]; Mayer v Sanders, 264 AD2d 827 [1999]).

Accordingly, the order is affirmed.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 6, 2013. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth 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, defendant moved for summary judgment dismissing the complaint. Defendant’s ground for dismissing the first through fourth and the sixth causes of action, which causes of action sought to recover upon the unpaid portions of the underlying claims which defendant had denied, was that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule. Its ground for dismissing the fifth and seventh causes of action was that it had timely denied the underlying claims due to plaintiff’s assignor’s failure to attend duly scheduled independent medical examinations (IMEs). By order entered February 6, 2013, the Civil Court granted the branches of defendant’s motion seeking summary judgment dismissing the first, second, fifth and seventh causes of action and denied the branches of defendant’s motion seeking summary judgment dismissing the sixth cause of action. The Civil Court also granted the branches of defendant’s motion seeking summary judgment dismissing the third and fourth causes of action to the extent of dismissing so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In support of its motion, defendant submitted affidavits by its employees which established that defendant had timely mailed the denial of claim forms at issue on this appeal (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff argues that defendant failed to establish that its fee schedule reductions were proper. We disagree and find that, with respect to the services at issue, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. [*2]v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, the Civil Court properly granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action, and so much of the third and fourth causes of action as sought to recover for services not billed under CPT Codes 97799 and 99203.

In addition, upon a review of the record, we find that there is a triable issue of fact regarding the propriety of the address to which the IME scheduling letters were sent. As a result, defendant is not entitled to summary judgment dismissing the fifth and seventh causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the fifth and seventh causes of action are denied.

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

Decided on November 20, 2015

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