Reported in New York Official Reports at Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co. (2014 NY Slip Op 51786(U))
| Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co. |
| 2014 NY Slip Op 51786(U) [46 Misc 3d 127(A)] |
| Decided on December 11, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1380 K C
against
Travelers Property Casualty Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Leonard Scholnick, J.H.O.), entered August 8, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $791.35.
ORDERED that the judgment is affirmed, with $25 costs.
At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, among other things, that plaintiff had satisfied its prima facie burden. The sole issues before the Civil Court were whether defendant had timely sent letters scheduling examinations under oath and whether defendant had timely denied plaintiff’s claims. After counsel for the parties discussed the facts underlying the issues with the court, defense counsel did not call any witnesses. The court awarded judgment to plaintiff.
Inasmuch as the parties stipulated to plaintiff’s prima facie case and defendant failed to present any evidence, there is no basis to reverse the judgment (see Dilon Med. Supply Corp. v Travelers Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50737[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 11, 2014
Reported in New York Official Reports at NYU-Hospital for Joint Diseases v Allstate Ins. Co. (2014 NY Slip Op 08613)
| NYU-Hospital for Joint Diseases v Allstate Ins. Co. |
| 2014 NY Slip Op 08613 [123 AD3d 781] |
| December 10, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| NYU-Hospital for Joint Diseases, as Assignee of
Martha G. Lopez, Respondent, et al., Plaintiff, v Allstate Insurance Company, Appellant. |
McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for appellant.
Joseph Henig, P.C., Bellmore, N.Y. (Gregory Henig of counsel), for respondent.
In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered September 26, 2013, which, upon an order of the same court entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, is in favor of the plaintiff NYU-Hospital for Joint Diseases, as assignee of Martha G. Lopez, and against it in the principal sum of $19,095.62.
Ordered that the judgment is reversed, on the law, with costs, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is denied, and the order entered September 10, 2013, is modified accordingly.
On October 18, 2012, Martha G. Lopez allegedly was injured in a motor vehicle accident. Approximately six months later, Lopez underwent surgery at the plaintiff NYU-Hospital for Joint Diseases (hereinafter the plaintiff). Lopez assigned her rights to no-fault benefits to the plaintiff. On October 18, 2012, the plaintiff mailed a copy of the NF-5 claim form to the defendant, Lopez’s automobile insurance carrier. The defendant received it on or about October 20, 2012, and thereafter issued an NF-10 denial of claim form dated November 14, 2012. The plaintiff, while not disputing that the defendant had issued a denial of claim within 30 days after its receipt of the NF-5 claim form, asserted in its motion for summary judgment that the NF-10 form was “defective” because it “contain[ed] the wrong amount of the bill and the wrong amount in dispute.” Upon an order entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $19,095.62.
Among the ways in which a no-fault insurer may comply with the “30 day rule” (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]) is by issuing a “timely and sufficient” NF-10 denial of claim form within 30 days after its receipt of an NF-5 claim form (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013]). Nonprejudicial mistakes or omissions in [*2]an otherwise timely and proper “NF-10” denial of claim form are not necessarily fatal (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191-1192 [2011]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]; cf. St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Here, the papers submitted in support of the plaintiffs’ motion for summary judgment included a copy of the defendant’s NF-10 denial of claim form. Contrary to the plaintiff’s contention, the NF-10 form was timely and sufficient. Under the circumstances of this case, the plaintiffs did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 46). Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, regardless of the sufficiency of the papers submitted by the defendant in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.
Reported in New York Official Reports at Restoration Sports & Spine v Geico Ins. Co. (2014 NY Slip Op 51729(U))
| Restoration Sports & Spine v Geico Ins. Co. |
| 2014 NY Slip Op 51729(U) [45 Misc 3d 134(A)] |
| Decided on December 5, 2014 |
| 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 December 5, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-1983 Q C
against
Geico Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered June 25, 2012. The order denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.
ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.
Plaintiffs commenced this action to recover assigned first-party no-fault benefits in September 2008. On June 25, 2011, defendant served a 90-day notice pursuant to CPLR 3216 (b) (3). Plaintiffs did not file a notice of trial, move to vacate the 90-day notice, or move to extend the 90 days. In April 2012, defendant moved to dismiss the complaint pursuant to CPLR 3216. The Civil Court denied defendant’s motion.
Except under circumstances not presented here, a plaintiff seeking to avoid dismissal pursuant to CPLR 3216 is required to demonstrate both a justifiable excuse for its delay and a meritorious cause of action (see CPLR 3216 [e]; Belson v Dix Hills Air Conditioning, Inc., 119 AD3d 623 [2014]; Davis v Goodsell, 6 AD3d 382, 384 [2004]; Lama v Mohammad, 29 Misc 3d 68 [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiffs’ attorney’s conclusory statement that bills had been submitted to defendant and had not been paid within 30 days of their submission was insufficient to demonstrate the merit of plaintiffs’ case (see Sortino v Fisher, 20 AD2d 25 [1963]; Lama, 29 Misc 3d 68; Comeau v McClacken, 5 Misc 3d 134[A], 2004 NY Slip Op 51455[U] [App Term, 2d & 11th Jud Dists 2004]). Moreover, plaintiff did not commence this action upon a verified complaint (CPLR 105 [U]).
Accordingly, the order is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.
Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 05, 2014
Reported in New York Official Reports at Clarke v Scottsdale Ins. Co. (2014 NY Slip Op 51586(U))
| Clarke v Scottsdale Ins. Co. |
| 2014 NY Slip Op 51586(U) [45 Misc 3d 131(A)] |
| Decided on October 29, 2014 |
| 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 29, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-1121 K C
against
Scottsdale Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered January 30, 2013. The order denied 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 appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that the out-of-state affidavit of defendant’s claims analyst submitted in support of the motion was not accompanied by a certificate of conformity. While plaintiff timely objected to the form of defendant’s affidavit, in that it did not comply with the requirements of CPLR 2309 (c), the absence of a certificate of conformity is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Bey v Neuman, 100 AD3d 581 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]), as the defect may be corrected nunc pro tunc or disregarded pursuant to CPLR 2001 (see Midfirst Bank v Agho, __ AD3d __, 2014 NY Slip Op 05778 [2d Dept 2014]).
Nevertheless, we find that the affidavit of defendant’s claims analyst was not in proper admissible form for a different reason, to wit, that the notary public never stated therein that the claims analyst had personally appeared before her and was personally known to her or had satisfactorily established her identity (see Galetta v Galetta, 21 NY3d 186 [2013]; see also Fryer v Rockefeller, 63 NY 268 [1875]; Gross v Rowley, 147 App Div 529 [1911]; cf. Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). As we do not consider the factual assertions contained in that document, we find no basis to disturb the Civil Court’s denial of defendant’s motion.
Accordingly, the order is affirmed.
Weston, J.P., Solomon and Elliot, JJ., concur.
Decision Date: October 29, 2014
Reported in New York Official Reports at Mount Sinai Hosp. v Auto One Ins. Co. (2014 NYSlipOp 06954)
| Mount Sinai Hosp. v Auto One Ins. Co. |
| 2014 NYSlipOp 06954 [121 AD3d 869] |
| October 15, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Mount Sinai Hospital, as Assignee of Chun Chen,
Respondent, v Auto One Insurance Company, Appellant. |
Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.
Joseph Henig, P.C., Bellmore, N.Y., for respondent.
In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 29, 2014, as denied, as premature, its cross motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 25, 2012, the plaintiff’s assignor, Chun Chen, was allegedly involved in an accident that occurred while he was a passenger in an automobile. More than three months later, on January 15, 2013, Chen was admitted to a facility operated by Mount Sinai Hospital (hereinafter the hospital), where he allegedly remained until the next day. On January 31, 2013, Hospital Receivables Systems, Inc. (hereinafter Hospital Receivables), on behalf of the hospital, sent the prescribed “no-fault NF-5 form” request for payment to the defendant Auto One Insurance Company (hereinafter Auto One) with respect to medical treatment which Chen had received at the hospital. Auto One received this form by February 4, 2013.
On February 14, 2013, Auto One sent the hospital a request for additional verification seeking, inter alia, “colored photos of surgery, [c]ervical spine MRI films for 11/15/12 and 12/13/12, [and] [c]omplete prior medical records from Dr. Leonid Reyfman for prior injury in 2011 to include any surgery records and prior MRI films.” Auto One also allegedly sent copies of this request for verification to Chen himself.
In a letter dated March 6, 2013, a representative of Hospital Receivables advised Auto One that “the hospital is not in possession of prior medical records from Dr. Leonid Reyfman including any surgery records and prior MRI Films”; that the hospital was not “in possession of any color photos of the surgery”; and that the hospital “was not authorized to release the actual cervical spine films that are in their [sic] possession.” This letter also indicated that the complete medical records maintained by the hospital referable to its treatment of Chen had been mailed to Auto One on March 5, 2013. Thereafter, Auto One sent a second request for verification dated March 19, 2013. In response thereto, Hospital Receivables, in effect, stated that it had already complied with the verification request.
[*2] In April 2013, the hospital, as assignee of Chen, commenced this action seeking payment of no-fault benefits. As relevant to this appeal, the Supreme Court denied Auto One’s cross motion for summary judgment dismissing the complaint, which was premised on the theory that the existence of outstanding requests for verification rendered the action premature. Auto One appeals.
When a health care provider, as assignee of a no-fault claimant, fails to respond to a verification request, including any follow-up request, “ ’the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the hospital is premature’ ” (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007], quoting New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Here, Auto One failed to demonstrate its prima facie entitlement to judgment as a matter of law, since the record reveals that the hospital replied to the verification request with respect to those records in the hospital’s possession that it alleged it was authorized to release. In addition, there remain triable issues of fact regarding the “propriety” of some of Auto One’s requests for verification, including whether the items requested existed or were in the possession of the hospital or Chen (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 43 AD3d 1039, 1040 [2007]). Thus, the Supreme Court properly denied, as premature, Auto One’s cross motion for summary judgment dismissing the complaint.
Given the existence of the triable issues of fact outlined above, there is no merit to the hospital’s contention that we should search the record and award it summary judgment. Mastro, J.P., Chambers, Sgroi and LaSalle, JJ., concur.
Reported in New York Official Reports at New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. (2014 NY Slip Op 06188)
| New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co. |
| 2014 NY Slip Op 06188 [120 AD3d 1322] |
| September 17, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| New York Hospital Medical Center of Queens, as
Assignee of Jose Tacuri, Appellant, v Nationwide Mutual Insurance Company, Respondent. |
Joseph Henig, P.C., Bellmore, N.Y., for appellant.
Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Mickei Milton of counsel), for respondent.
In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), dated January 13, 2014, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 25, 2013, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the principal sum of $25,621.20, and pursuant to CPLR 3012 (d) to extend its time to appear and to compel the plaintiff to accept its late notice of appearance.
Ordered that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially 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]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696 [2011]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d 791, 792 [2011]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]).
Here, the defendant established a reasonable excuse through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons with notice to its attorney (see Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 696; Perez v Travco Ins. Co., 44 AD3d 738, 739 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Furthermore, the defendant demonstrated a potentially meritorious defense to the action. Accordingly, in light of the foregoing, as well as the public policy favoring the resolution of cases on the merits, the defendant’s lack of willfulness, and the absence of any prejudice to the plaintiff, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment, to extend its time to appear, and to compel the plaintiff to accept its late notice of appearance (see CPLR 3012 [d]; NYU-Hospital for Joint Diseases v Praetorian Ins. Co., 98 AD3d 1101, 1102 [2012]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 697). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51324(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 28, 2013. The order denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.
ORDERED that the order is affirmed, with $25 costs.
Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and
defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.
After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion
for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.
Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), 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]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.
Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]). While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. (2014 NY Slip Op 51322(U))
| Delta Diagnostic Radiology, P.C. v National Liab. & Fire Ins. Co. |
| 2014 NY Slip Op 51322(U) [44 Misc 3d 142(A)] |
| Decided on August 20, 2014 |
| 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 August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-653 K C
against
National Liability & Fire Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment 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’s assignor had obtained the insurance policy in question through fraud. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion.
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s implicit determination with respect thereto.
The papers submitted by defendant were sufficient to establish that defendant had 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]) its denial of claim form, which denied the claim on the ground of the fraudulent procurement of the insurance policy in question by virtue of the assignor’s misrepresentation of his place of residence. Furthermore, defendant’s papers demonstrated that a triable issue of fact exists as to whether plaintiff’s assignor had provided a fraudulent address when he had obtained the insurance policy at issue. Consequently, plaintiff’s motion for summary judgment should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
With respect to defendant’s cross motion, upon the record before us, we find that defendant failed to make a prima facie showing of its entitlement to judgment dismissing the complaint as a matter of law.
Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2014 NY Slip Op 51321(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered January 18, 2013. The order implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.
The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 20, 2014
Reported in New York Official Reports at Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51315(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered August 3, 2012, deemed from a judgment of the same court entered September 28, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 3, 2012 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion to, among other things, disqualify defendant’s law firm from representing defendant in this action, dismissed the complaint.
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear. Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court entered August 3, 2012 granting defendant’s motion and denying plaintiff’s cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
As to defendant’s motion for summary judgment, we find that, contrary to plaintiff’s arguments on appeal, defendant submitted sufficient proof to show that the EUO scheduling letters and 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). Therefore, and as plaintiff’s remaining contentions with respect to this motion lack merit, we find that the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
In light of the foregoing, plaintiff’s request that defendant’s law firm be disqualified based [*2]on the attorney/witness rule is “moot since, summary judgment having been granted, there will be no trial of this matter” (Quiros v Mount St. Michael Academy, 303 AD2d 185, 186 [2003]; see also Lombino v Town Bd. of Town of Rye, 206 AD2d 462 [1994]). In any event, plaintiff failed to establish that disqualification of defendant’s law firm was warranted (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; see also e.g. Magnus v Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608 [2004]; Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]; Matter of Cowen & Co. v Tecnoconsult Holdings, 234 AD2d 86 [1996]; Talvy v American Red Cross in Greater NY, 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Solomon and Elliot, JJ., concur.
Decision Date: August 20, 2014