Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 26, 2017. 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 a new trial on the issue of whether the requested verification remains outstanding.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether the additional verification requested by defendant remained outstanding. At the nonjury trial, the Civil Court (Robin Kelly Sheares, J.), with no testimony having been presented, granted a motion by defendant for a directed verdict, on the ground that plaintiff had failed to produce a witness to show that plaintiff had mailed the requested verification. Plaintiff appeals from a judgment, entered July 26, 2017, which dismissed the complaint.

In a prior order denying defendant’s motion for summary judgment dismissing the complaint, the Civil Court (Katherine A. Levine, J.) made the following four findings “for all purposes in this matter pursuant to CPLR 3212 (g)”: that plaintiff had timely submitted its bills to defendant, that defendant had received the bills, that the bills remained unpaid, and that defendant had timely mailed verification requests to plaintiff.^[FN1] The motion court found that [*2]plaintiff had raised a triable issue of fact as to whether it had provided the requested verification, and held that the only issue for trial was “whether the requested verification remains outstanding.”

Where a no-fault insurer is relying on the defense that an action is premature because verification is outstanding, it is the defendant insurer’s prima facie burden at trial to demonstrate (1) that verification requests were timely mailed and (2) that the defendant did not receive the requested verification (see 11 NYCRR 65-3.8 [a]; Right Aid Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 58 Misc 3d 140[A], 2017 NY Slip Op 51857[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As there was a finding for all purposes in this action that defendant had timely mailed verification requests to plaintiff, defendant did not have to prove this element of its defense at trial. In contrast, there was no finding that defendant had not received the requested verification. If the motion court had also found, for all purposes in the action, that defendant had not received the requested verification, meaning that that fact could no longer be disputed or rebutted, then, rather than denying defendant’s motion for summary judgment and making CPLR 3212 (g) findings, the appropriate course of action in this case would have been to grant summary judgment to defendant (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Instead, the motion court simply found that plaintiff had raised a triable issue of fact as to that question, the only impact of which was that a trial, limited to the issue of “whether the requested verification remains outstanding,” would take place (see Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 17 Misc 3d 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

CPLR 3212 (g) permits the limitation of issues for trial by the specification of facts that “are not in dispute or incontrovertible”; it does not permit the kind of burden shifting engaged in by the trial court as to issues which remain triable—here, by requiring plaintiff to commence the trial to establish that the outstanding verification had been mailed (see id.). Since the motion court had previously found that a trial was warranted, it remained defendant’s initial burden to present testimony to demonstrate that it had not received the requested verification, before the burden shifted to plaintiff to prove that it had provided responses. Consequently, the trial court erred in, in effect, requiring plaintiff to present its proof first at the limited trial and, when plaintiff failed to present a witness to testify with respect to plaintiff’s assertion that it had mailed the requested verification to defendant, granting defendant’s motion for a directed verdict.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial on the issue of whether requested verification remains outstanding.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: August 02, 2019

Footnotes

Footnote 1:The court specifically stated that the requests were mailed. The finding that they were timely mailed is implicit in the court’s order.

Decided on August 2, 2019

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

Decided on August 2, 2019

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

Decided on August 2, 2019

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

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 20, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered September 12, 2011 pursuant to an August 16, 2011 order of that court (Robin S. Garson, J.) granting plaintiff’s unopposed motion for summary judgment; 2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

ORDERED that the order entered January 20, 2017 is reversed, with $30 costs, and defendant’s motion to stay the execution of the judgment entered September 12, 2011, vacate the judgment and, in effect, the August 16, 2011 order, and dismiss the complaint is denied.

Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on June 27, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On September 12, 2011, a judgment was entered pursuant to the order. After the order had been entered, 21st Century commenced a declaratory judgment action in the Supreme Court, Nassau [*2]County, against SS Medical and its assignor herein, among other parties, pertaining to the June 27, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century’s motion, pursuant to CPLR 2201 and 6301, to “temporarily stay[]” pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the policy in question, and that the provider had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.

Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered September 12, 2011 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose SS Medical’s motion in the Civil Court for summary judgment, that it had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Richard J. Montelione, J.) entered January 20, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

In support of the branch of its motion in the Civil Court seeking to vacate the judgment, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff’s motion for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant’s attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff’s motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion.

We note that while the Supreme Court’s December 19, 2011 order “temporarily stayed” pending lawsuits, the action in the Civil Court was no longer pending, as a judgment had been entered in the Civil Court on September 12, 2011 awarding SS Medical the principal sum of $2,068.50.

Accordingly, the order entered January 20, 2017 is reversed and defendant’s motion to stay the execution of the judgment entered September 12, 2011, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias and Bryan Rothenberg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered February 16, 2017. The order, upon a motion by defendant to: (1) stay the execution of a judgment of that court entered February 2, 2012 pursuant to an August 16, 2011 order of that court granting plaintiff’s unopposed motion for summary judgment; (2) vacate the judgment and, in effect, the August 16, 2011 order; and (3) dismiss the complaint, vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

ORDERED that the order entered February 16, 2017 is reversed, with $30 costs, and defendant’s motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

Plaintiff SS Medical Care, P.C. (SS Medical) commenced this action to recover assigned first-party no-fault benefits for medical services provided as a result of a motor vehicle accident which had occurred on November 23, 2009. After issue had been joined, SS Medical moved for summary judgment, and defendant 21st Century Insurance Company (21st Century) failed to submit any opposition. By order entered August 16, 2011, the Civil Court (Robin S. Garson, J.) granted the motion, finding that SS Medical had established its entitlement to judgment. On August 30, 2011, plaintiff submitted to the clerk of the court a proposed judgment pursuant to the order, which judgment included statutory interest and attorney’s fees, and sought its entry. After the order had been entered in the Civil Court, 21st Century commenced a declaratory judgment [*2]action in the Supreme Court, Nassau County, against SS Medical and its assignor herein, among other parties, pertaining to the November 23, 2009 accident, as well as other accidents involving other named assignors that had occurred between June 2009 and March 2010. On December 19, 2011, the Supreme Court granted 21st Century’s motion, pursuant to CPLR 2201 and 6301, to “temporarily stay[]” pending and future lawsuits against 21st Century pertaining to, insofar as is relevant, the health care services, assignor and insurance policy at issue. On February 2, 2012, without any indication in the record that the Clerk of the Civil Court was aware of the declaratory judgment action or the order issued therein on December 19, 2011, the Civil Court entered a judgment, pursuant to the August 16, 2011 order, awarding SS Medical the principal sum of $1,182.20. By order entered May 6, 2015, the Supreme Court granted a motion by 21st Century for summary judgment in the declaratory judgment action, finding that the insurer had established, prima facie, that it possessed a founded belief that the collision at issue was intentional and, thus, not covered by the insurance policy in question, and that the provider and its assignor had failed to raise a triable issue of fact. On February 4, 2016, a declaratory judgment was entered in the Supreme Court pursuant to the May 6, 2015 order.

Thereafter, on the basis of the Supreme Court declaratory judgment, 21st Century moved, in the Civil Court, to stay the execution of the judgment in favor of SS Medical entered February 2, 2012 pursuant to the August 16, 2011 order, to vacate the judgment and, in effect, the order, and to dismiss the complaint. In support of the motion, 21st Century asserted, as its excuse for failing to oppose plaintiff’s motion for summary judgment in the Civil Court, that 21st Century had been in the process of filing the declaratory judgment action in the Supreme Court. SS Medical opposed the motion and appeals from an order of the Civil Court (Robin S. Garson, J.) entered February 16, 2017 which vacated the judgment and, in effect, the August 16, 2011 order, and dismissed the complaint.

In support of the branch of its motion in the Civil Court seeking to vacate the judgment and, in effect, the August 16, 2011 order, 21st Century was required to establish, among other things, a reasonable excuse for its default in opposing plaintiff’s motion for summary judgment (seeCPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). However, the excuse proffered by defendant’s attorney was merely a conclusory statement that defendant had been in the process of filing the declaratory judgment action in the Supreme Court, which, in any event, does not constitute a reasonable excuse for failing to submit opposition to plaintiff’s motion. In view of the lack of an excusable default, it is unnecessary for this court to consider whether defendant demonstrated the existence of a potentially meritorious opposition to plaintiff’s motion.

We note that, by its order entered on August 16, 2011, the Civil Court rendered its determination to grant SS Medical’s motion for summary judgment, thus, completing the court’s judicial function (see Vogel v Edwards, 283 NY 118 [1940]). Thereafter, and prior to the issuance of the Supreme Court’s temporary stay of pending and future lawsuits against 21st Century, plaintiff applied in the Civil Court for the entry of a judgment pursuant to the August 16, 2011 order. As the order had resolved the motion, the entry of the judgment in the Civil Court on February 2, 2012, pursuant the August 16, 2011 order, was simply a ministerial act of [*3]the clerk (see e.g. Aetna Cas. & Sur. Co. v Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]). The record is devoid of any proceedings taken by either party in the Civil Court action in violation of the stay contained in the Supreme Court’s December 19, 2011 order following its issuance.

Accordingly, the order entered February 16, 2017 is reversed and defendant’s motion to stay the execution of the judgment entered February 2, 2012, to vacate the judgment and, in effect, the August 16, 2011 order, and to dismiss the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

Decided on August 2, 2019

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