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 (Robin Kelly Sheares, J.), entered June 21, 2012. The order granted defendant’s motion to dismiss 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 to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the court lacked personal jurisdiction over defendant. In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company. In opposition to the motion, plaintiff’s attorney submitted an affirmation wherein he stated, in a conclusory manner, that defendant may have an agent which operates in New York and asserted that discovery is needed to determine that issue. By order entered June 21, 2012, the Civil Court granted defendant’s motion to dismiss the complaint.

Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court’s exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant’s motion papers demonstrated that it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff’s cause of action, so as to bring it within the Civil Court’s long-arm jurisdiction. In its opposition papers, plaintiff failed to rebut defendant’s showing. Instead, plaintiff argued that discovery was necessary to determine whether there was proper jurisdiction. However, plaintiff failed to establish that facts essential to justify opposition may exist but are not available to it, thereby warranting discovery (see CPLR 3211 [d] Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2008] Roldan v Dexter Folder Co., 178 AD2d 589 [1991] Viviane Etienne Med. Care, P.C. v United Auto. Ins. Co., 29 Misc 3d 141[A], 2010 NY Slip Op 52151[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant’s motion to dismiss the complaint was properly granted. [*2]

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order, insofar as appealed from, upon reargument and renewal, adhered to a prior determination granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature since plaintiff had failed to provide requested documentary verification. By order dated February 29, 2012, the District Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant appeals from so much of an order dated June 4, 2012 as, upon reargument and renewal, adhered to the prior determination.

Defendant established, through the affidavit of its no-fault litigation examiner, that it had first received plaintiff’s hospital claim form on May 9, 2011. Defendant further indicated that it had received copies of the same hospital bill on May 25 and July 18, 2011. Defendant also demonstrated that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) initial and follow-up requests for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b] 65-3.6 [b]) on May 29, 2011 and June 29, 2011, respectively, and that plaintiff had not responded to the verification requests. Plaintiff, which asserted that defendant had received the claim form on July 18, 2011, failed to rebut defendant’s showing of its receipt of an identical claim on May 9, 2011, or establish that it had responded to defendant’s verification requests. Contrary to plaintiff’s contention, the 30-day period in which to pay or deny a claim did not run anew as the result of plaintiff’s resubmission of the claim (see New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005] Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]). Consequently, the District Court should have dismissed the complaint as premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007] Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 [*2]AD3d 492 [2005] Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

Accordingly, the order, insofar as appealed from, is reversed, and, upon reargument and renewal, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]) its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity. The sworn peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services provided to plaintiff’s assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). However, in opposition to defendant’s motion, plaintiff submitted a sworn letter of medical necessity by its treating chiropractor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2012. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, at which plaintiff’s witness was the sole witness. Plaintiff attempted to move into evidence certain documents, including an NF-10 denial of claim
form and a mailing log. The court, however, refused to admit those documents and, after trial, dismissed the complaint on the ground that plaintiff had failed to establish a prima facie case.

Plaintiff sufficiently established that the NF-10 denial of claim form that it was trying to introduce into evidence was the denial of claim form that it had received from defendant, which referenced the claim form at issue in this action. Contrary to the ruling of the Civil Court, plaintiff should have been allowed to use that denial to demonstrate that the claim form in question had been submitted to defendant (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007] Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). In such a case, a plaintiff is not trying to use the denial as the plaintiff’s own business record pursuant to CPLR 4518 (a); instead, in this context, the denial is being used as an admission by the defendant that the claim form had been received. Consequently, plaintiff’s attempt to use the denial to prove the submission of the claim form was improperly denied. As plaintiff proved that defendant had not paid the claim and as defendant consented to the admission into evidence of plaintiff’s claim form, judgment should have been awarded to plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014

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 (Robin Kelly Sheares, J.), entered December 20, 2011. The order held in abeyance plaintiff’s motion for summary judgment and defendant’s motion for summary judgment dismissing the complaint, pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 costs

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court held both motions in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was a triable issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010] cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976] see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). We find that, in the circumstances, defendant’s failure to submit certificates of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Gullo & Associates, LLC, Brooklyn, N.Y. (Cristina Carollo of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), dated July 10, 2012, as denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

Generally, a party opposing a motion for summary judgment need only “raise a triable issue of fact with respect to the . . . theory . . . that is the subject of the moving party’s prima facie showing” (Stukas v Streiter, 83 AD3d 18, 24 [2011]). Here, in light of the limited basis of the plaintiff’s motion for summary judgment on the complaint, which was premised solely on the defendant’s alleged failure to timely pay or deny the no-fault claim within 30 days of receipt of proof of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]), “the defendant’s only burden in opposition . . . was to raise a triable issue of fact regarding its timely . . . denial of the [plaintiff’s] claim” (Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905, 905 [2011]; see Viviane Etienne Med. Care, P.C., v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 89 AD3d 1081, 1082-1083 [2011]). In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the defendant satisfied its burden by raising a triable issue of fact as to whether it did in fact mail a proper NF-10 denial of claim form to the plaintiff only 22 days after its receipt of the claim verification that it had previously requested (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984 [2012]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659 [2008]).

We do not reach the parties’ remaining contentions regarding the merits of the defendant’s cross motion, since the defendant has not appealed from so much of the order as denied its cross motion. Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.

—[*1] Spina, Korshin & Welden, Woodbury, N.Y. (Jeanne M. Ortega of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondents.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Brown, J.), entered December 20, 2011, which granted the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on the first cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz, for summary judgment on its first cause of action is denied.

The plaintiff Wyckoff Heights Medical Center, as assignee of Aida Ruiz (hereinafter the plaintiff), made a prima facie showing of entitlement to judgment as a matter of law on to the first cause of action by submitting evidence that the prescribed statutory billing forms were mailed to and received by the defendant, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; Westchester Med. Ctr. v Lancer Ins. Co., 94 AD3d 984 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]).

However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the subject claim (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant submitted evidence showing that it mailed to the plaintiff a denial of claim form NF-10 within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Although the denial of claim form incorrectly stated the amount of the claim and the amount in dispute, under the circumstances of this case, these minor errors did not render the denial fatally defective and a nullity (see 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]).

Contrary to the plaintiff’s contention, the fact that the defendant attached to its denial [*2]of claim form an unaffirmed and unsworn peer review report, which contained a stamped facsimile of the physician’s signature and did not comply with CPLR 2106, did not render the denial of claim ineffective, since the defendant was not obligated to submit the peer review report in the first instance (see CPLR 2106; cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]). The relevant no-fault regulations do not require that a denial of claim form be supported by a peer review report or other medical evidence at the time that the denial of claim form is issued (cf. 11 NYCRR 65-3.8). Indeed, this Court has previously held that a defendant is not required to set forth a medical rationale in its denial of claim form (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 832-833 [2007]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]).

Accordingly, the Supreme Court should have denied the plaintiff’s motion for summary judgment on the first cause of action. Rivera, J.P., Chambers, Hall and Miller, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, February 14, 2014

APPEARANCES OF COUNSEL

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellant. Conway, Farrell, Curtin & Kelly P.C., New York City (Jonathan T. Uejio of counsel), for respondent.

{**43 Misc 3d at 50} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed, without costs.

Plaintiff commenced this action to recover assigned first-party no-fault benefits from an out-of-state insurer for medical services plaintiff had provided to its assignor as a result of injuries sustained in an automobile accident that occurred in New York. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint, contending, among other things, that it had not been properly served with process and that the court lacked jurisdiction over it. Plaintiff opposed the cross motion. The Civil Court denied the motion and cross motion. Thereafter, defendant moved for leave to renew and reargue its prior cross motion, contending, among other things, that an out-of-state affidavit by its corporate officer, which had been submitted in support of the cross motion for summary judgment, was in compliance with CPLR 2309 (c), and that the court should have considered the facts alleged therein, which established that the court lacked jurisdiction over defendant. Plaintiff opposed the motion, contending, among other things, that the affidavit was inadmissible and that, in any event, had it been considered, it would not have changed the court’s prior determination denying{**43 Misc 3d at 51} summary judgment to defendant. The Civil Court granted defendant’s motion for leave to renew and reargue, and, upon renewal and reargument, granted defendant’s cross motion for summary judgment dismissing the complaint, albeit on non-jurisdictional grounds.

At the outset, we note that, despite defendant’s failure to submit a proper certificate of conformity together with the out-of-state affidavit of its corporate officer, as required by CPLR 2309 (c), this omission was not a fatal error (see CPLR 2001; Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680 [2013] Fredette v Town of Southampton, 95 AD3d 940 [2012] Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]) and, therefore, the affidavit has been reviewed on this appeal. In view of the foregoing, we find that the Civil Court properly granted defendant leave to renew and reargue its motion for summary judgment.

Turning to the merits, we note that the record is devoid of any indication as to how or where service of process upon defendant was made. Nevertheless, defendant asserts that, however service was effectuated, there was no jurisdictional basis therefor since, as an out-of-state insurance company, jurisdiction could not have been obtained over it by virtue of service [*2]upon the New York State Superintendent of Insurance pursuant to Insurance Law § 1212 or § 1213.

In support of its cross motion, defendant demonstrated, prima facie, through documentary evidence, that it was not authorized to conduct an insurance business in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1212. Furthermore, defendant established, prima facie, through the affidavit of its corporate officer, that neither it nor its reciprocal insurers, affiliates, or subsidiaries provide, write, or sell insurance in the State of New York or to its residents. They do not provide goods or services within New York nor do they transact business in New York and they do not have any offices or agents in this state. Thus, defendant did not perform any of the acts specified in Insurance Law § 1213 (b) (1) in New York and, as a result, jurisdiction could not be obtained over it pursuant to Insurance Law § 1213 (see Farm Family Mut. Ins. Co. v Nass, 121 AD2d 498 [1986]).

As previously indicated, the record is devoid as to how or where service of process was made. We note that, for the same{**43 Misc 3d at 52} reasons that jurisdiction could not be obtained pursuant to Insurance Law § 1213, it could not be obtained under the long-arm statute (CCA 404), since the requirements of each statute are similar (see e.g. Chase Manhattan Bank v AXA Reins. UK, 300 AD2d 16 [2002] Cavaliere v New Jersey Ins. Underwriting Assn., 236 AD2d 502 [1997] American Ind. Ins. v Heights Chiropractic Care, P.C., 12 Misc 3d 228 [Sup Ct, NY County 2006]). This is especially true here, where defendant established through the affidavit of its corporate officer that there was no transaction of business in the State of New York, let alone New York City. We further note that the mere unilateral act of an automobile insurer’s insured of driving into New York State, without more, is insufficient to permit a New York court to exercise long-arm jurisdiction over the out-of-state insurer (see Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489 [2005] Franklin v Catawba Ins. Co., 291 AD2d 371 [2002] Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638 [1999]).

The burden of proving jurisdiction is on the party asserting it and, in the face of defendant’s contentions raised in its cross motion, plaintiff was obligated to come forth with definitive evidentiary facts to support jurisdiction over the out-of-state insurer (see Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002] Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [1988] Lamarr v Klein, 35 AD2d 248 [1970]); however, it failed to do so. Thus, jurisdiction was never acquired over defendant.

Plaintiff’s remaining contentions are found to be without merit. Accordingly, the order of the Civil Court is affirmed, albeit on grounds other than those stated by the Civil Court.

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

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 (Johnny Lee Baynes, J.), entered November 30, 2011. The order, insofar as appealed from as limited by the brief, denied, as untimely, defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as “rejected as untimely” defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5). As it is undisputed by the parties that defendant’s cross motion was timely pursuant to a so-ordered stipulation setting forth the dates by which any cross motion had to be served, the Civil Court erred in failing to consider defendant’s cross motion.

Accordingly, the order, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for a determination of the merits of defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (5).

Aliotta, J.P., Pesce and Weston, JJ., concur.
Decision Date: February 11, 2014

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

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered October 11, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,809.20.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the only issue for trial would be whether the medical devices provided to plaintiff’s assignor were medically necessary. After a nonjury trial, the Civil Court awarded judgment to plaintiff in the principal sum of $1,809.20. This appeal by defendant ensued.

At the trial, defendant’s doctor testified that, in his opinion, the cervical and lumbar traction units provided by plaintiff were not medically necessary, and he set forth a factual basis and medical rationale for his conclusion. Plaintiff called no witnesses to rebut defendant’s doctor’s testimony. In view of the foregoing and the Civil Court’s finding that defendant’s doctor’s testimony was “wholly credible,” we disagree with the Civil Court’s determination that defendant failed to establish that the medical devices at issue were not medically necessary.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, 45 NY2d 493 [1978] S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A], 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]).

Aliotta, J.P., Pesce and Solomon, JJ., concur.
Decision Date: February 07, 2014