—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Jason Tenenbaum of counsel), for appellants.

Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.

In an action to recover damages for slander per se, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated November 19, 2008, as denied that branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.

The plaintiff alleged in the complaint that the defendants committed slander per se when they reported to the police that the plaintiff had filed a fraudulent claim with them for no-fault medical benefits for his son. However, the complaint failed to comply with CPLR 3016 (a), which requires that a complaint sounding in defamation “set forth ‘the particular words complained of’ ” (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497 [2004], quoting CPLR 3016 [a]; see Fusco v Fusco, 36 AD3d 589 [2007]). Compliance with CPLR 3016 (a) is strictly enforced (see Abe’s Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690 [2007]). Accordingly, that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action should have been granted. Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered October 6, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking to amend the answer to include the defense of fraudulent incorporation and to compel plaintiff to produce its owner, Valentina Anikeyeva, for a deposition.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, by order entered October 6, 2008, granted defendant leave to amend the answer to include the defense of fraudulent incorporation and directed plaintiff to produce its owner, Valentina Anikeyeva, for a deposition within 60 days of the order. The order also stated that plaintiff’s failure to produce its owner for the deposition would result in dismissal. Plaintiff appeals from the order entered October 6, 2008.

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff’s failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action (see Matter of Aho, 39 NY2d 241, 248 [1976]).

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered January 10, 2008. The order denied defendant’s motion to dismiss the complaint and granted plaintiff’s cross motion for a protective order.

Order reversed without costs, plaintiff’s cross motion for a protective order denied and defendant’s motion to dismiss the complaint granted to the extent of directing plaintiff to produce its owner, Perumunda K. Sharma, for a deposition within
60 days of the date of the order entered hereon, or on such other date to which the parties shall agree.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3126 due to plaintiff’s inadequate response to defendant’s discovery demands and plaintiff’s failure to produce its owner, Perumunda K. Sharma (Sharma), for a deposition. Plaintiff opposed the motion and cross-moved for a protective order. The Civil Court denied defendant’s motion, finding that defendant had failed to submit sufficient factual evidence to establish its entitlement to an order compelling the deposition of Sharma, and granted plaintiff’s cross motion for a protective order. This appeal by defendant ensued.

The record reveals that defendant set forth detailed and specific reasons for believing that plaintiff may be ineligible to recover no-fault benefits as a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Consequently, defendant is entitled to a deposition of Sharma, plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire and Casualty Company, 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, plaintiff’s cross motion for a
protective order is denied and defendant’s motion to dismiss the complaint pursuant to CPLR [*2]3126 is granted to the extent of directing plaintiff to produce its owner, Sharma, for an examination before trial.
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 20, 2009

[*1]

Supreme Court, Appellate Term, Second Department, July 20, 2009

APPEARANCES OF COUNSEL

Law Office of Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.

{**25 Misc 3d at 40} OPINION OF THE COURT

Memorandum.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant argued at trial that there was no coverage for plaintiff’s assignor’s alleged injuries because the injuries were not sustained in a covered accident. Following the nonjury trial, the Civil Court dismissed the complaint, finding that defendant had sustained its burden of proving lack of coverage by a preponderance of the evidence. On appeal, plaintiff contends that defendant had to prove, by clear and convincing evidence, rather than by a mere preponderance of the evidence, that the alleged injuries were the result of an insurance fraud scheme. Plaintiff further argues that even if the Civil Court correctly determined that defendant’s burden could be satisfied by defendant proving its defense by a mere preponderance of the evidence, the evidence presented by defendant was insufficient to satisfy this burden.

In its decision, the Civil Court noted that, while an insurer may put forth evidence of a fraudulent scheme in order to prove that a collision was not an accident, the insurer need not prove fraud (see Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005]). As stated in the court’s decision,

“courts commonly invoke the term ‘fraud’ when discussing the defense of lack of coverage; this may be because so many cases involving allegedly noncovered incidents center on accidents purportedly staged for the purpose of generating fraudulent insurance claims . . . Perhaps the seminal embodiment of this formulation is the Second Department’s pronouncement [in State Farm Mut. Auto. Ins. Co. v Laguerre (305 AD2d 490, 491 [2003])] that ‘[a] deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident’ ” (V.S. Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 334, 339 [2006]).

However, explained the Civil Court, “it does not matter whether the accident was staged in furtherance of an insurance fraud scheme or was deliberately caused under some other [*2]circumstances” (id. at 335). Rather, the court need only determine “whether the incident was unintentional (i.e., a true accident) or whether at least one driver intended to make contact (i.e., a deliberate event)” (id. at 340). This is because “[i]f the collision{**25 Misc 3d at 41} was an intentional occurrence, then it is outside the scope of the no-fault policy regardless of why or how it occurred or who was behind it” (id. at 341). We agree with the Civil Court’s reasoning regarding this issue.

In Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277, 284 [2007], affd 10 NY3d 556 [2008]), the Appellate Division explained that “[w]hat excuses the insurer’s compliance with the 30-day rule in a staged-accident case is not the egregiousness of the fraud; rather, it is the absence of coverage for something that is not an ‘accident.’ ” As noted by the Appellate Division, “[t]he rationale for such [a] holding[ ] is that a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an ‘accident’ covered by the subject insurance policy” (id. at 283). Thus, in the case at bar, defendant could properly premise its defense upon a lack of coverage and could establish this defense by a preponderance of the evidence; defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter (see Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855 [2008]), by clear and convincing evidence (see Simcuski v Saeli, 44 NY2d 442 [1978]; Hutt v Lumbermens Mut. Cas. Co., 95 AD2d 255 [1983]). Upon a review of the record, we agree with the Civil Court’s determination that defendant’s proof, which plaintiff failed to rebut, established by a preponderance of the evidence its defense of lack of coverage (see Praimnath v Torres, 59 AD3d 419 [2009]). Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered April 9, 2008, deemed from a judgment of the same court entered May 29, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 9, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $829.84.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied
defendant’s cross motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered.

Contrary to defendant’s contention, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (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]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists [*2]2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claims, defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense of lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]; Zappone v Home Ins. Co., 55 NY2d 131 [1982]), defendant’s submissions in opposition to plaintiff’s motion for summary judgment and in support of the cross motion for summary judgment were insufficient to demonstrate that defendant’s defense of lack of coverage was “premised on the fact or founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered April 7, 2008, deemed from a judgment of the same court entered May 28, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 7, 2008 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s motion for summary judgment, awarded plaintiff the principal sum of $459.14.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment, finding that after defendant initially requested verification of the claims, defendant failed to allow 30 days to pass before issuing second requests. This appeal by defendant ensued. A judgment was subsequently entered.

Defendant’s contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (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]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Consequently, defendant’s contention that the instant action is premature lacks merit. Accordingly, the judgment is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 8, 2008, deemed from a judgment of the same court entered May 6, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 8, 2008 order which, insofar as appealed from, granted so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $879.73, awarded plaintiff the principal sum of $879.73.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, insofar as is relevant to this appeal, granted so much of plaintiff’s motion for
summary judgment as sought summary judgment with respect to plaintiff’s $879.73 claim, finding, inter alia, that after defendant initially requested verification of the claim, it failed to allow 30 days to pass before issuing a second request. This appeal by defendant ensued. A judgment was subsequently entered.

Inasmuch as defendant raises no issue on appeal as to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

Defendant’s papers establish that defendant mailed its follow-up request for verification on the 30th calendar day after it mailed its verification request. As a result, the follow-up request was premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claim, defendant was precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Since defendant failed to raise a triable issue of fact, the judgment is affirmed. [*2]

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), entered November 2, 2007. The order, insofar as appealed from as limited by the brief, held that defendant had not established its entitlement to depose plaintiff’s owner, Perumunda K. Sharma.

Appeal dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3126, to dismiss the complaint due to plaintiff’s allegedly insufficient response to defendant’s interrogatories. While the motion was pending, defendant served plaintiff with a notice to take the deposition of plaintiff’s owner, Perumunda K. Sharma (Sharma). After plaintiff served papers which purported to be a cross motion (but which did not include a notice of cross motion) seeking a protective order with respect to the deposition of Sharma, defendant submitted reply papers setting forth the reasons why defendant believed it was entitled to such a deposition. The Civil Court denied defendant’s motion. The court further stated that defendant did not establish its need for a deposition of Sharma and that plaintiff’s purported cross motion, which, the court noted, did not appear on its calendar, was denied as moot. Defendant appeals from so much of the order as held that defendant had not established its entitlement to depose Sharma.

The portion of the order which provided that defendant did not establish its entitlement to depose Sharma is not appealable as of right because it did not decide a motion on notice seeking such relief (CCA 1702 [a] [2]; CPLR 2211). Since leave to appeal from that portion of the order has not been granted, the appeal is dismissed (see CCA 1702 [c]; Robertson v United Equities, Inc., 61 AD3d 838 [2009]; Consolidated Resources, LLC v 210-220-230 Owner’s Corp., 59 AD3d 579 [2009]; Mohler v Nardone, 53 AD3d 600 [2008]).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), dated September 13, 2007. The order denied a motion by defendant seeking to vacate a default judgment and compel plaintiff to accept its late answer, and for sanctions.

Order modified by providing that so much of the motion by defendant as sought to vacate the default judgment and to compel plaintiff to accept its late answer is granted, and the answer annexed to defendant’s moving papers is deemed served upon plaintiff; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment entered following its failure to answer, to compel plaintiff to accept its late answer, and for sanctions. The Civil Court denied the motion, finding that the affirmation of defendant’s attorney was insufficient to establish a reasonable excuse for the default. The instant appeal by defendant ensued.
A party seeking vacatur of a default judgment must demonstrate both a reasonable excuse for its default in appearing and answering the complaint, and a 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]). The affidavits of the claims representatives, which defendant submitted in support of its motion, suffice to establish a reasonable excuse for defendant’s relatively short delay in answering the complaint. Moreover, plaintiff has not indicated that it was prejudiced by the delay. Furthermore, defendant made a prima facie showing of a potentially meritorious defense as to whether plaintiff is ineligible to receive reimbursement of no-fault benefits (see State Farm [*2]Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Accordingly, the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept its late answer are granted.

In our opinion, the record does not support the imposition of sanctions against plaintiff. We thus leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking sanctions.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 14, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered November 5, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion to amend its answer to add affirmative defenses and to compel plaintiff to respond to defendant’s amended discovery demands.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion, which sought leave to amend the answer to assert the affirmative defenses that plaintiff was a fraudulently incorporated professional service corporation and that, as a result, plaintiff lacked standing to bring the instant action, and to compel plaintiff to respond to its amended discovery demands. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

The Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer in order to interpose the aforementioned affirmative defenses (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]) since plaintiff failed to demonstrate that prejudice or surprise would result therefrom (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defenses were neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Ingrami v Rover, 45 AD3d 806, 808 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). Moreover, defendant made a sufficient showing that its amended discovery demands were material and necessary to its defenses so as to warrant the granting of the branch of its
cross motion seeking to compel plaintiff to respond thereto (see CPLR 3101; Mallela, 4 NY3d 313).

Weston, J.P., Rios and Steinhardt, JJ., concur. [*2]
Decision Date: July 14, 2009