Reported in New York Official Reports at Biotech Surgical Supply, Inc. v Country Wide Ins. Co. (2024 NY Slip Op 50118(U))
[*1]| Biotech Surgical Supply, Inc. v Country Wide Ins. Co. |
| 2024 NY Slip Op 50118(U) |
| Decided on January 26, 2024 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1003 Q C
against
Country Wide Insurance Company, Respondent.
Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velasquez, LLP, for respondent (no brief filed).
Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered September 14, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $500.23 pursuant to a stipulation of settlement entered into on February 3, 2003, awarded plaintiff statutory no-fault interest from February 14, 2017. The appeal from the judgment brings up for review so much of an order of that court entered February 22, 2018 as, sua sponte, tolled the accrual of statutory no-fault interest.
ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.
This action by a provider to recover assigned first-party no-fault benefits for a claim arising out of an accident that occurred on October 6, 1999 was commenced in 2001 and settled on February 3, 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 30, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On February 14, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 30, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered February 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual [*2]of statutory no-fault interest through February 14, 2017, the date plaintiff filed its motion. A judgment was entered on September 14, 2023 accordingly, from which plaintiff appeals on the ground of inadequacy.
Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to the date of plaintiff’s motion. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest from the date of the settlement until the date plaintiff filed the instant motion (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).
Accordingly, the judgment, insofar as appealed from, is reversed, so much of the February 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 26, 2024Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50119(U))
Reported in New York Official Reports at Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50119(U))
[*1]| Metro Med. Diagnostics, P.C. v Country Wide Ins. Co. |
| 2024 NY Slip Op 50119(U) |
| Decided on January 26, 2024 |
| 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 January 26, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1025 Q C
against
Country Wide Insurance Company, Respondent.
Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velasquez, LLP, for respondent (no brief filed).
Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 13, 2023. The judgment, insofar as appealed from, upon awarding plaintiff the principal sum of $1,704.68 pursuant to a stipulation of settlement entered into on July 10, 2010, awarded plaintiff statutory no-fault interest from January 9, 2017. The appeal from the judgment brings up for review so much of an order of that court entered October 22, 2018 as, sua sponte, tolled the accrual of statutory no-fault interest.
ORDERED that the judgment, insofar as appealed from, is reversed, with $30 costs, so much of the October 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.
This action by a provider to recover assigned first-party no-fault benefits for a claim arising out of an accident that occurred on January 5, 2000 was commenced in 2001 and settled on July 10, 2010. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 9, 2017 pursuant to CPLR 5003-a, awarding plaintiff statutory no-fault interest from the date of the settlement at a simple rate. On January 17, 2017, plaintiff moved, pursuant to CPLR 5019 (a), to, in effect, correct the January 9, 2017 judgment by recalculating the statutory no-fault interest from a simple rate to a compound rate. By order entered October 22, 2018, the Civil Court granted the motion and directed the clerk to recalculate [*2]the interest at a rate of 2% per month, compounded, but, sua sponte, tolled the accrual of statutory no-fault interest from the date of the settlement through January 9, 2017. A judgment was entered on September 13, 2023 accordingly, from which plaintiff appeals on the ground of inadequacy.
Plaintiff correctly argues that the Civil Court erred in tolling the statutory no-fault interest from the date of the settlement to January 9, 2017, the date of the original judgment. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [internal quotation marks omitted]; see CPLR 5003-a [e]; NCT Diagnostics, Inc. v Countrywide Ins. Co., 77 Misc 3d 133[A], 2022 NY Slip Op 51247[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Therefore, the Civil Court erred in tolling the accrual of interest from the date of the settlement to the date of the original judgment (see Seaside Rehabilitation v Allstate Ins. Co., 2019 NY Slip Op 50918[U]).
Accordingly, the judgment, insofar as appealed from, is reversed, so much of the October 22, 2018 order as, sua sponte, tolled the accrual of statutory no-fault interest is vacated, and the matter is remitted to the Civil Court for the entry of a new judgment in accordance with this decision and order.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 26, 2024New Life Acupuncture, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50120(U))
Reported in New York Official Reports at New Life Acupuncture, P.C. v Country Wide Ins. Co. (2024 NY Slip Op 50120(U))
[*1]| New Life Acupuncture, P.C. v Country Wide Ins. Co. |
| 2024 NY Slip Op 50120(U) |
| Decided on January 26, 2024 |
| 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 January 26, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-1043 Q C
against
Country Wide Insurance Company, Respondent.
Glinkenhouse Queen, Esqs. (Alan Queen of counsel), for appellant. Jaffe & Velasquez, LLP, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 5, 2018. The order, in effect, denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered March 22, 2017.
ORDERED that the order is reversed, with $30 costs, and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.
This action by a provider to recover assigned first-party no-fault benefits for a claim submitted to defendant on or about May 4, 2000, arising from an accident that occurred on November 15, 1999 was commenced in 2002 and settled on July 31, 2008. Defendant did not pay the settlement amount, and a judgment was subsequently entered on March 22, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple 2% per month rate. Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated pursuant to the pre-2002 regulations, which required no-fault interest to be calculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). Plaintiff appeals from an order of the Civil Court which, in effect, denied its motion.
Plaintiff correctly argues that the claim involved herein is governed by the former regulations providing for compound interest because the accident occurred prior to the effective date of the current regulations, which now provide for a simple rate of interest (see 11 NYCRR [*2]65-3.9 [a], effective April 5, 2002; Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 155-156 [2021]; Health Value Med., P.C. v Country Wide Ins. Co., 66 Misc 3d 127[A], 2019 NY Slip Op 52036[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, plaintiff’s motion should have been granted. We note that, contrary to the statement of the Civil Court, postjudgment interest in a no-fault action is governed by Insurance Law § 5106 and its implementing regulations, not the CPLR (see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144; Health Value Med., P.C. v Country Wide Ins., 77 Misc 3d 128[A], 2022 NY Slip Op 51137[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).
Accordingly, the order is reversed and plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment entered March 22, 2017 is granted.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 26, 2024Warton Supplies, Inc. v GEICO Indem. Co. (2024 NY Slip Op 50071(U))
Reported in New York Official Reports at Warton Supplies, Inc. v GEICO Indem. Co. (2024 NY Slip Op 50071(U))
[*1]| Warton Supplies, Inc. v GEICO Indem. Co. |
| 2024 NY Slip Op 50071(U) [81 Misc 3d 140(A)] |
| Decided on January 19, 2024 |
| 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 January 19, 2024
PRESENT: : WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
2022-1014 K C
against
GEICO Indemnity Company, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered November 21, 2018. 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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).
Plaintiff’s sole contention on appeal is that, pursuant to CPLR 2106 (a), the attorney affirmation that defendant submitted to establish that plaintiff had failed to appear for the EUOs was not admissible since the affirming attorney was employed by a law firm as “staff counsel” to defendant. Such an argument lacks merit (see Matter of Reid v Rochdale Vil., Inc., 137 AD3d 797 [2016]; Warton Supplies, Inc. v GEICO Indem. Co., 76 Misc 3d 126[A], 2022 NY Slip Op 50770[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Warton Supplies, Inc. v GEICO (Gov Empls.), 73 Misc 3d 146[A], 2021 NY Slip Op 51253[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2021]).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 19, 2024JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))
Reported in New York Official Reports at JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50064(U))
[*1]| JSJ Anesthesia Pain Mgt., PLLC v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 50064(U) |
| Decided on January 12, 2024 |
| 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 January 12, 2024
PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-163 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Maksin Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J. Ammendolea of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.
For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
OTTLEY, J.P., BUGGS and HOM, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))
Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50065(U))
[*1]| Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 50065(U) |
| Decided on January 12, 2024 |
| 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 January 12, 2024
PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-164 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC (Francis J, Ammendolea of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated December 15, 2022. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.
For the reasons stated in Pain Med., PLLC, as Assignee of Van-Bochove, Nourine v State Farm Mut. Auto. Ins. Co. (— Misc 3d —, 2024 NY Slip Op — [appeal No. 2023-753 K C], decided herewith), the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
OTTLEY, J.P., BUGGS and HOM, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))
Reported in New York Official Reports at Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 50069(U))
[*1]| Pain Med., PLLC v State Farm Mut. Auto. Ins. Co. |
| 2024 NY Slip Op 50069(U) |
| Decided on January 12, 2024 |
| 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 January 12, 2024
PRESENT: : LISA S. OTTLEY, J.P., CHEREÉ A. BUGGS, PHILLIP HOM, JJ
2023-753 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. De Martini & Yi, LLP (Bryan Visnius of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), dated January 6, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the policy limits had been exhausted, and denied plaintiff’s cross-motion for summary judgment.
To obtain summary judgment on its asserted defense of policy exhaustion, defendant had to prove that it had paid the limits of the policy in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], affd 191 AD3d 934 [2021]). Here, defendant failed to demonstrate, as a matter of law, that it had [*2]made any payments under the policy because, as plaintiff argues, defendant’s claim specialist did not lay a sufficient foundation for the payment log, upon which defendant relied, to be accepted as proof that the payments listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JPC Med., P.C. v State Farm Mut. Auto. Ins. Co., 75 Misc 3d 136[A], 2022 NY Slip Op 50562[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; JPF Med. Servs., P.C. v Nationwide Ins., 69 Misc 3d 127[A], 2020 NY Slip Op 51122[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the complaint.
Plaintiff’s cross-motion for summary judgment was properly denied, as plaintiff 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 form 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 motion for summary judgment dismissing the complaint is denied.
OTTLEY, J.P., BUGGS and HOM, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: January 12, 2024Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))
Reported in New York Official Reports at Art of Healing Medicine, P.C. v Allstate Ins. Co. (2023 NY Slip Op 51471(U))
[*1]| Art of Healing Medicine, P.C. v Allstate Ins. Co. |
| 2023 NY Slip Op 51471(U) |
| Decided on December 22, 2023 |
| 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 22, 2023
PRESENT: : PHILLIP HOM, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2023-513 K C
against
Allstate Insurance Company, Respondent.
Petre and Associates, P.C. (Mark Petre of counsel), for appellant. The Law Office of John Trop (Jeff G. Winston of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha M. Alleyne, J.), dated March 8, 2023. The order granted defendant’s motion to vacate a judgment of that court entered May 3, 2022 upon defendant’s failure to appear or answer the complaint and to compel plaintiff to accept defendant’s answer.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on May 3, 2022 upon defendant’s failure to appear or answer the complaint. According to the affidavit of service, the summons and complaint were served upon a named individual known by the process server to be an employee of defendant authorized to accept service of process. Defendant subsequently moved to vacate the default judgment pursuant to CPLR 5015 (a) (1) and to compel plaintiff to accept defendant’s answer pursuant to CPLR 3012 (d). Plaintiff opposed the motion. By order dated March 8, 2023, the Civil Court granted defendant’s motion. On appeal, plaintiff argues that defendant provided neither a reasonable excuse for its default nor a potentially meritorious defense to the action.
“A defendant seeking to vacate a default in answering a complaint pursuant to CPLR 5015 (a) (1) and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012 (d) [*2]must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v Abrahim, 183 AD3d 698 [2020]; US Bank N.A. v Dedomenico, 162 AD3d 962, 964 [2018])” (JE & MB Homes, LLC v U.S. Bank N.A., 189 AD3d 1195, 1196 [2020]).
In support of its contention that it possessed a reasonable excuse for its default, defendant submitted an affidavit from a claims representative who averred that either the summons and complaint were not received, based on the absence of a record documenting the receipt of this document in defendant’s electronic system, or that the summons and complaint were not processed due to a reduction in the number of personnel in defendant’s office, where service allegedly occurred, due to the COVID-19 pandemic. Defendant’s claim of lack of receipt is insufficient to constitute a reasonable excuse, as defendant neither submitted an affidavit from the individual who had been named in the process server’s affidavit of service as having received service nor explained why such affidavit could not be provided (see Renelique v Allstate Ins. Co., 67 Misc 3d 128[A], 2020 NY Slip Op 50401[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 64 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Further, defendant’s assertion that a COVID-19-related staff reduction may have resulted in the failure to process the summons and complaint was conclusory and unsubstantiated, and, therefore, is also insufficient to qualify as a reasonable excuse (see V. v Leo, 219 AD3d 961, 962 [2023]; Wells Fargo Bank, N.A. v Krauss, 128 AD3d 813, 814 [2015]; Ahava Med. Diagnostic, P.C. v Hertz Co., 72 Misc 3d 138[A], 2021 NY Slip Op 50772[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In light of the foregoing, it is unnecessary to consider whether defendant demonstrated a potentially meritorious defense to the action (see Hingorani v Venus Enters. 11 Corp., 208 AD3d 1229, 1230 [2022]; Ahava Med. Diagnostic, P.C. v Hertz Co., 2021 NY Slip Op 50772[U], *1).
Accordingly, the order is reversed and defendant’s motion to vacate the default judgment entered May 3, 2022 and to compel plaintiff to accept defendant’s answer is denied.
HOM, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 22, 2023Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))
Reported in New York Official Reports at Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))
[*1]| Sovera Med. Supply Corp. v MVAIC |
| 2023 NY Slip Op 51476(U) [81 Misc 3d 141(A)] |
| Decided on December 22, 2023 |
| 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 22, 2023
PRESENT: : PHILLIP HOM, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2023-767 K C
against
MVAIC, Appellant.
Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated October 7, 2022. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.
Prior to the commencement of this action, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitration was thereafter withdrawn without prejudice. However, “[b]y electing to arbitrate, the plaintiff waived [its] right to commence an action to litigate subsequent disputes over no-fault benefits to which [it] was allegedly entitled as a result of that accident” (Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005] [emphasis added]; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Griffin v AIG, 121 AD3d 449 [2014]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [*2][“Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident,” even though the prior arbitration was dismissed without prejudice]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [while prior arbitration was dismissed without prejudice, “once a claimant chooses arbitration, it cannot resort to the courts”]). Consequently, MVAIC’s motion for summary judgment dismissing the complaint should have been granted.
We reach no other issue.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
HOM, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 22, 2023Blano Med., P.C. v Hertz Co. (2023 NY Slip Op 51406(U))
Reported in New York Official Reports at Blano Med., P.C. v Hertz Co. (2023 NY Slip Op 51406(U))
[*1]| Blano Med., P.C. v Hertz Co. |
| 2023 NY Slip Op 51406(U) [81 Misc 3d 137(A)] |
| Decided on December 15, 2023 |
| 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 15, 2023
PRESENT: : CHEREÉ A. BUGGS, J.P., MARINA CORA MUNDY, PHILLIP HOM, JJ
2023-66 K C
against
Hertz Co., Respondent.
The Rybak Firm, PLLC (Oleg Rybak and Richard Rozhik of counsel), for appellant. Rubin, Fiorella, Friedman & Mercante, LLP (Micahel Philippou of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Keisha Alleyne, J.), entered June 14, 2022. The order granted defendant’s motion to amend the pleadings and to dismiss the complaint on the grounds of res judicata and statute of limitations, and, in effect, denied plaintiff’s cross-motion for summary judgment.
ORDERED that the order is modified by providing that defendant’s motion to amend the pleadings and to dismiss the complaint on the grounds of res judicata and statute of limitations is denied; as so modified, the order is affirmed, without costs.
In August 2019, plaintiff commenced this action against defendant “Hertz Co.” to recover assigned first-party no-fault benefits for services it rendered to its assignor, who was allegedly injured in an automobile accident on January 26, 2015. In December 2016, “Hertz Vehicles, LLC” brought a declaratory judgment action in the Supreme Court, New York County, against “Blano Medical” and its assignor herein, among other parties, pertaining to the January 26th accident and, subsequently, moved for a default judgment against “Blano Medical” and its assignor. In an order and judgment entered March 4, 2019, the Supreme Court, upon granting the unopposed motion by Hertz Vehicles, LLC, declared that, with respect to the January 26th accident, Hertz Vehicles, LLC was not obligated to pay claims for reimbursement submitted by “Blano Medical” and its assignor.
By notice of motion returnable in the Civil Court in March 2020, defendant “Hertz Co.” moved, pursuant to CPLR 3025 (c), for an order “amending the named defendant in this action to the proper party, ‘Hertz Vehicles, LLC,’ ” and, upon such amendment, for dismissal of the complaint, pursuant to CPLR 3211 (a) (5), on the ground of res judicata, and dismissal of the complaint, pursuant to CPLR 3211 (a) (5) and 214 (2), on the ground that the statute of limitations had expired. Plaintiff cross-moved for summary judgment and opposed defendant’s motion. Plaintiff appeals from an order of the Civil Court entered June 14, 2022, which granted [*2]defendant’s motion and, in effect, denied plaintiff’s cross-motion for summary judgment.
CPLR 3025 (c) provides that “the court may permit pleadings to be amended before or after judgment to conform them to the evidence.” Upon a review of the record, we find that the Civil Court improperly exercised its discretion in granting the branch of defendant’s motion seeking to amend the pleadings, pursuant to CPLR 3025 (c), since defendant, Hertz Co., failed to proffer any evidence to support the conclusory statement by its claim representative that Hertz Vehicles, LLC is “the proper party” (see Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, the branch of defendant’s motion seeking to amend the caption is denied, and the caption remains as indicated on the August 2019 summons and complaint.
Defendant’s motion also sought an order dismissing the complaint pursuant to CPLR 3211 (a) (5) on the ground of res judicata based on the Supreme Court declaratory judgment order and judgment, entered on default, issued in the case of Hertz Vehicles, LLC v Blano Medical, among others. The doctrine of res judicata requires a final adjudication of a claim on the merits and precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]; Quality Health Supply Corp., 2020 NY Slip Op 50996[U], * 1). As defendant failed to show that the proper defendant here is “Hertz Vehicles, LLC,” there was no demonstration that there had been a final adjudication of the present claims on the merits in the Supreme Court action (see Ciraldo, 140 AD3d 912; Matter of Hunter, 4 NY3d 260; Schuylkill Fuel Corp., 250 NY 304; Quality Health Supply Corp., 2020 NY Slip Op 50996[U], *1), and the Civil Court should have denied this branch of defendant’s motion.
When a no-fault action is commenced against a self-insurer, the action is subject to the three-year statute of limitations set forth in CPLR 214 (2), as the no-fault benefits are not being sought pursuant to a contract with a private insurer, which carries a six-year statute of limitations (see CPLR 213 [2]), but rather because the liability exists solely due to a statute (see Contact Chiropractic, P.C. v New York City Tr. Auth.,31 NY3d 187, 196-197 [2018]; Greenway Med. Supply Corp. v Repwest Ins. Co., 77 Misc 3d 135[A], 2022 NY Slip Op 51269[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co.,73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Despite the conclusory and insufficient statement of defendant’s claim representative that defendant is self-insured, defendant did not otherwise establish that assertion since the documentation purportedly annexed to its motion papers is either inadmissible (see CPLR 4518 [c]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2015]; Adobea v Junel, 114 AD3d 818, 820 [2014]; Benejam v Khan, 78 Misc 3d 123[A], 2023 NY Slip Op 50397[U], *2 [Sup Ct, Queens County 2023]) or is not included in the record on appeal. Therefore, the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 3211 (a) (5) and 214 (2) on the ground that a three-year statute of limitations had expired is denied.
Furthermore, contrary to plaintiff’s contention, we find that it was not entitled to summary judgment as it did not demonstrate, prima facie, that defendant had either failed to timely deny the claims or that the NF-10 denial of claim forms were conclusory, vague or without merit as a [*3]matter of law (see Insurance Law § 5102 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, the Civil Court properly denied plaintiff’s cross-motion for summary judgment.
We pass on no other issue.
Accordingly, the order is modified by providing that defendant’s motion to amend the pleadings and to dismiss the complaint is denied in its entirety.
BUGGS, J.P., MUNDY and HOM, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 15, 2023