Reported in New York Official Reports at Parisien v Allstate Ins. Co. (2019 NY Slip Op 51249(U))
| Parisien v Allstate Ins. Co. |
| 2019 NY Slip Op 51249(U) [64 Misc 3d 140(A)] |
| Decided on August 2, 2019 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 2, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-445 K C
against
Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin Toell of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni 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 September 23, 2016. 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the insured vehicle had not been involved in the alleged accident in question.
In support of its motion, defendant submitted the transcript of the examination under oath (EUO) of its insured, in which she testified that she had been parking her vehicle at the time of the alleged accident, that no accident had occurred and that plaintiff’s assignor, a pedestrian, had not been struck by her vehicle. In a supporting affidavit, the insured attested to the same facts. The EUO testimony and the affidavit are sufficient to demonstrate, prima facie, that “the alleged injury [did] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 26 Misc 3d 126[A], 2009 NY Slip Op 52601[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 25 Misc 3d 139[A], [*2]2009 NY Slip Op 52379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since plaintiff opposed defendant’s motion only with an affirmation by counsel, who did not assert that he possessed personal knowledge of the facts, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019
Reported in New York Official Reports at Matter of Hereford Ins. Co. v American Tr. Ins. Co. (2019 NY Slip Op 05778)
| Matter of Hereford Ins. Co. v American Tr. Ins. Co. |
| 2019 NY Slip Op 05778 [174 AD3d 805] |
| July 24, 2019 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Hereford Insurance Company, as Subrogee of
Samuel Mensah, Respondent, v American Transit Insurance Company, Appellant. |
Law Offices of Richard A. Reinstein, P.C., Brooklyn, NY (Joshua M. Goldberg of counsel), for appellant.
Goldberg, Miller & Rubin, P.C., New York, NY (Harlan R. Schreiber and Timothy R. Bishop of counsel), for respondent.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated April 13, 2017, American Transit Insurance Company appeals from an order of the Supreme Court, Queens County (Cheree A. Buggs, J.), entered March 26, 2018. The order granted the petition to confirm the arbitration award.
Ordered that the order is affirmed, with costs.
On May 15, 2015, a vehicle insured by Hereford Insurance Company (hereinafter Hereford) and owned by Samuel Mensah, and a vehicle insured by American Transit Insurance Company (hereinafter ATIC), were involved in a motor vehicle accident. As a result of the accident, Hereford paid a total of $70,027.94 in benefits to the injured party.
Thereafter, Hereford sought to recover the sum of $50,000 from ATIC in compulsory arbitration pursuant to Insurance Law § 5105. Of the $50,000 sought by Hereford, ATIC “disput[ed] the total of $16,551.89 over paid for services rendered in New Jersey.” The arbitrator determined that ATIC’s insured was 100% at fault in the happening of the accident. The arbitrator also determined that Hereford had proved all damages and awarded Hereford the sum of $50,000.
On October 16, 2017, Hereford, as subrogee of Mensah, commenced this proceeding pursuant to CPLR article 75 to confirm the arbitration award. ATIC opposed the petition, and requested that the award be vacated. In an order entered March 26, 2018, the Supreme Court granted the petition to confirm the award, determining that, “based upon the parties’ submissions, there [was] no basis to vacate the arbitrator’s award.” The court also noted that “[t]he fee schedule defenses were raised by [ATIC] in full detail in its contentions and fully considered by the arbitrator.” ATIC appeals.
“While judicial review of arbitration awards is limited to the grounds set forth in CPLR 7511, an award that is the product of compulsory arbitration, such as the one at issue in this case, must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious” (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y., 144 AD3d 1160, 1160-1161 [2016] [internal quotation marks omitted]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982 [2018]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 46 [2015], quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).
Here, the arbitrator’s determination that Hereford was entitled to recoup $50,000 for the benefits paid to the injured party was not arbitrary and capricious. “[E]ven assuming that the arbitrator might have misapplied applicable law . . . the arbitrator’s award was . . . supported by a ‘reasonable hypothesis’ and was not contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).
ATIC’s remaining contention is without merit.
Accordingly, we agree with the Supreme Court’s determination to grant the petition to confirm the arbitration award. Mastro, J.P., Miller, Barros and Christopher, JJ., concur.
Reported in New York Official Reports at Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Integon National Insurance Company, Appellant.
Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Odierno Law Firm, P.C. (Paul A. Bargellini of counsel), for respondent.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered August 16, 2018. The judgment, upon a decision of that court dated February 2, 2015, after a nonjury trial, awarded plaintiff the principal sum of $17,388.68.
ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 2, 2015 is deemed a premature notice of appeal from the judgment entered August 16, 2018 (see CPLR 5520 [c]); and it is further,
ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held, limited, pursuant to a stipulation, to defendant’s defense of lack of medical necessity. The parties further stipulated that defendant’s witness, an orthopedic surgeon, was an expert. Defendant’s witness testified that he had read a peer review report prepared by a different doctor and that he agreed with the peer reviewer’s conclusion that the services provided to the assignor were not medically necessary nor causally related to the assignor’s motor vehicle accident. Plaintiff did not call any witnesses to rebut defendant’s doctor’s testimony. Following the trial, the Civil Court found that defendant’s witness was not credible and awarded judgment to plaintiff in the principal sum of $17,388.68.
When reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and [*2]demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). At a no-fault trial involving a defense of lack of medical necessity, an insurer has an initial burden to rebut the presumption of medical necessity which attaches to a claim form (see Dayan v Allstate Ins. Co., 49 Misc 3d 151[A], 2015 NY Slip Op 51751[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Here, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s expert witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary (see A-Quality Med. Supply v GEICO Gen. Ins. Co., 39 Misc 3d 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, we find no basis to disturb the Civil Court’s findings.
Accordingly, the judgment is affirmed.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. (2019 NY Slip Op 51185(U))
| Active Care Med. Supply Corp. v Erie Ins. Co. of N.Y. |
| 2019 NY Slip Op 51185(U) [64 Misc 3d 139(A)] |
| Decided on July 19, 2019 |
| 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1348 K C
against
Erie Insurance Company of New York, Appellant.
Robyn M. Brilliant of counsel, for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Joy F. Campanelli, J.), entered February 15, 2014, deemed from a judgment of that court entered June 22, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 15, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,652.63.
ORDERED that the judgment is reversed, with $30 costs, the order entered February 15, 2014 is vacated, 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, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground of lack of medical necessity. By order entered February 15, 2014, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. Defendant’s appeal from the February 15, 2014 order is deemed from a judgment that was entered on June 22, 2017 pursuant to the order (see CPLR 5501 [c]).
In support of its cross motion, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St.
Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant submitted a sworn peer review report which set forth a factual basis and medical rationale for the peer reviewer’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit from a doctor which failed [*2]to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the judgment is reversed, the order entered February 15, 2014 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Right Aid Med. Supply Corp. v Travelers Ins. Co. (2019 NY Slip Op 51184(U))
| Right Aid Med. Supply Corp. v Travelers Ins. Co. |
| 2019 NY Slip Op 51184(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 2019 |
| 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-797 K C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Janice A. Robinson of counsel), for respondent.
Appeal from a decision of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated September 26, 2016, deemed from a judgment of that court entered November 29, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to a decision of the same court dated September 26, 2016, after a nonjury trial, dismissed the complaint.ORDERED that the judgment is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether the verification requested by defendant had been provided. The only witness at trial was an employee of defendant who testified that defendant had not received the requested verification. The Civil Court found the testimony to be credible and entered judgment dismissing the complaint.
Contrary to plaintiff’s sole argument, the testimony by defendant’s witness was sufficient to establish that defendant had not received the requested verification. The witness, a 27-year employee of defendant, testified regarding defendant’s policies and procedures for the receipt of mail, both at the Buffalo office, where certain items were sent, and the Melville office, where the claims at issue were processed.
Accordingly, the judgment is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Brand Med. Supply, Inc. v Repwest Ins. Co. (2019 NY Slip Op 51183(U))
| Brand Med. Supply, Inc. v Repwest Ins. Co. |
| 2019 NY Slip Op 51183(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 2019 |
| 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-686 K C
against
Repwest Ins. Co., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Bryan Cave, LLP (Laurie Belony of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 11, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and plaintiff cross-moved for summary judgment. Insofar as is relevant to this appeal, the Civil Court granted defendant’s motion.
Plaintiff’s sole argument on appeal is that defendant mailed the IME scheduling letters to the assignor’s address without using an apartment number, and that, therefore, that defendant’s motion should have been denied. However, the record demonstrates conclusively that the address to which defendant mailed the letters matched the address provided by plaintiff on its bill and by plaintiff’s assignor on the assignor’s application for no-fault benefits (NF-2). Thus, plaintiff has not demonstrated that defendant did not give the assignor proper notice of the IMEs (see Sunlight Med. Care, P.C. v Esurance Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51410[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U))
| Mollo v 21st Century Ins. Co. |
| 2019 NY Slip Op 51182(U) [64 Misc 3d 138(A)] |
| Decided on July 19, 2019 |
| 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 July 19, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-615 K C
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Konstantinos Tsirkas of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 2, 2017. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
Plaintiff correctly contends that certain letters from defendant were delay letters which failed to toll defendant’s time to pay or deny the claims. However, defendant’s motion also included copies of the examination under oath (EUO) scheduling letters which were timely mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Additionally, contrary to plaintiff’s argument, the affidavits submitted by defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123).
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 19, 2019
Reported in New York Official Reports at Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. (2019 NY Slip Op 29225)
| Pierre J. Renelique Physician, P.C. v Allstate Ins. Co. |
| 2019 NY Slip Op 29225 [64 Misc 3d 98] |
| Accepted for Miscellaneous Reports Publication |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, September 27, 2019 |
[*1]
| Pierre J. Renelique Physician, P.C., as Assignee of Jose Mercado, Appellant, v Allstate Insurance Company, Respondent. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, July 19, 2019
APPEARANCES OF COUNSEL
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel) for appellant.
Peter C. Merani, P.C. (Eric M. Wahrburg and Samuel Kamara of counsel) for respondent.
{**64 Misc 3d at 99} OPINION OF THE COURT
Ordered that the order is reversed, without costs, and the branch of defendant’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the default judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, a judgment was entered on April 15, 2016, upon defendant’s failure to appear or answer the complaint. Defendant thereafter moved to, among other things, vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that it has an excusable default and a meritorious defense, or, in the alternative, for an order directing a traverse hearing. Plaintiff appeals from an order of the Civil Court which granted the branch of defendant’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (1), arguing that defendant failed to establish a reasonable excuse for its default or a meritorious defense. Defendant contends, in response, that it did satisfy the requirements of CPLR 5015 (a) (1).[FN*]
At the outset, we note that the process server’s affidavit constituted prima facie evidence of proper service of process upon defendant pursuant to CPLR 311 (a) (1), by service upon a [*2]general agent of defendant who was authorized to accept service on its behalf (see Hayden v Southern Wine & Spirits of Upstate N.Y., Inc., 126 AD3d 673 [2015]; Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]; Indymac{**64 Misc 3d at 100} Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]). Thus, to vacate the default judgment pursuant to CPLR 5015 (a) (1), defendant was required to demonstrate a reasonable excuse for its default and a potentially meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Progressive Cas. Ins. Co. v Excel Prods., Inc., 171 AD3d 812 [2019]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695 [2011]).
As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed (see HSBC Bank USA, N.A. v Eliyahu, 170 AD3d 1130 [2019]; Indymac Fed. Bank FSB, 99 AD3d at 764; Aminov v Allstate Ins. Co., 62 Misc 3d 139[A], 2019 NY Slip Op 50056[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Thus, defendant’s attempt to establish a lack of service was insufficient, as defendant failed to swear to specific facts to rebut those contained in the affidavit of the process server. Under the circumstances, defendant’s moving papers failed to establish a reasonable excuse for its default, let alone a triable issue as to whether service had ever been effectuated (see Bank of N.Y. v Samuels, 107 AD3d 653 [2013]; Reich v Redley, 96 AD3d 1038 [2012]; cf. New York Hosp. Med. Ctr. of Queens v Nationwide Mut. Ins. Co., 120 AD3d 1322 [2014]).
Accordingly, the order is reversed and the branch of defendant’s motion seeking, pursuant to CPLR 5015 (a) (1), to vacate the default judgment is denied.
Siegal, J.P., Pesce and Elliot, JJ., concur.
Footnotes
Footnote *:Defendant does not argue on appeal that the judgment should be vacated pursuant to CPLR 5015 (a) (4) and no longer seeks, in the alternative, a traverse hearing.
Reported in New York Official Reports at Kanter Physical Medicine & Rehab, P.C., GEICO Ins. Co. (2019 NY Slip Op 51175(U))
| Kanter Physical Medicine & Rehab, P.C. v GEICO Ins. Co. |
| 2019 NY Slip Op 51175(U) [64 Misc 3d 138(A)] |
| Decided on July 12, 2019 |
| 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 July 12, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2018-394 Q C
against
GEICO Insurance Company, Respondent.
Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for appellant. Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 7, 2017. The order denied a petition to vacate a master arbitrator’s award dated October 16, 2016 in a proceeding pursuant to CPLR article 75.
ORDERED that the order is modified by adding thereto a provision confirming the master arbitrator’s award; as so modified, the order is affirmed, without costs.
Petitioner commenced this proceeding pursuant to CPLR article 75 to vacate a master arbitrator’s award dated October 16, 2016, which upheld the award of an arbitrator, rendered pursuant to Insurance Law § 5106 (b), denying petitioner’s claims to recover assigned first-party no-fault benefits. The Civil Court denied the petition.
Upon a review of the record, we find a rational basis for the determination of the master arbitrator upholding the arbitrator’s award (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]). Consequently, the Civil Court properly denied the petition to vacate the master arbitrator’s award. However, upon denying the petition, the court was required, pursuant to CPLR 7511 (e), to confirm the award (see Matter of Exclusive Med. & Diagnostic v Government Empls. Ins. Co., 306 AD2d 476 [2003]).
We note that a special proceeding should terminate in a judgment, not an order (see CPLR 411).
Accordingly, the order is modified by adding thereto a provision confirming the master arbitrator’s award.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019
Reported in New York Official Reports at Pro Health Acupuncture, P.C. v GEICO Ins. (2019 NY Slip Op 51174(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO Insurance, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary Albright Whiting of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Mary V. Rosado, J.), entered November 21, 2017. The order granted plaintiff’s motion for leave to reargue its opposition to defendant’s prior motion to dismiss the complaint pursuant to CPLR 3216, which prior motion had been granted in an order of that court entered May 11, 2017, and, upon reargument, vacated the order entered May 11, 2017 and denied defendant’s motion.
ORDERED that the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint pursuant to CPLR 3216 based upon plaintiff’s failure to comply with a 90-day notice, which motion was granted by order of the Civil Court entered May 11, 2017. Plaintiff subsequently moved for leave to reargue its opposition to that motion, and, upon reargument, to deny defendant’s motion. Defendant appeals from an order of the Civil Court entered November 21, 2017 granting plaintiff’s motion.
For the reasons stated in Faith Acupuncture, P.C., as Assignee of Igor Shkundin, v GEICO Ins. (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-302 K C], decided herewith), the order entered November 21, 2017 is modified by providing that, upon reargument, the order entered May 11, 2017 granting defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is adhered to.
WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019