Decided on March 29, 2019

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

Decided on March 29, 2019

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

The Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov and Zachary 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 February 10, 2017. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

Plaintiff commenced this action to recover assigned first-party no-fault benefits on May 10, 2011. Defendant interposed an answer on June 29, 2011. Defendant served plaintiff’s attorney with a 90-day written demand pursuant to CPLR 3216 (b) (3), which was received on October 5, 2015. By notice of motion dated March 16, 2016, defendant moved, pursuant to CPLR 3216, to dismiss the complaint, alleging that plaintiff had not filed a notice of trial or otherwise responded to the 90-day demand. Plaintiff served a notice of trial on November 4, 2016 and served opposition to defendant’s motion on November 22, 2016, but did not seek to explain its delay in responding to the 90-day demand or set forth a meritorious cause of action until it served a sur-reply on February 6, 2017, four days before the motion was scheduled for oral argument. Defendant appeals from so much of an order of the Civil Court as denied its motion to dismiss.

Once a 90-day demand is served upon a plaintiff, the plaintiff must either comply with the demand by filing a notice of trial within 90 days (see CPLR 3216 [c]), or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d [*2]& 11th Jud Dists 2008]). Since plaintiff failed to do any of these, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay in properly responding to the 90-day demand and the existence of a meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43). Plaintiff sought to make the required showing for the first time in sur-reply papers, which the Civil Court should not have considered (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983 [2015]; Flores v Stankiewicz, 35 AD3d 804 [2006]). Consequently, defendant’s motion should have been granted.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

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

Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for appellant. Gabriel & Shapiro, LLC (Max Valerio of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (James F. Matthews, J.), dated August 28, 2017. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, and granted plaintiff’s cross motion for summary judgment upon the entire complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, are granted, and the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover upon those 17 claims are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the District Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, and granted plaintiff’s cross motion for summary judgment upon the entire complaint. The District Court determined that letters scheduling examinations under oath (EUOs) of plaintiff were defective because they did not specify the claims to which the letters pertained.

Defendant established that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to [*2]the finding by the District Court, the EUO scheduling letters were not “defective.” We note that the initial EUO scheduling letter identified the assignor, the date of the accident and defendant’s file number. The initial EUO scheduling letter resulted in a toll of defendant’s time to pay or deny plaintiff’s claims as to each claim form which had been submitted by the same plaintiff for the same assignor and accident prior to the EUO request, as long as the request had been timely with respect to such claim, and to any claim form received subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also Tsatskis v State Farm Fire & Cas. Co., 36 Misc 3d 129[A], 2012 NY Slip Op 51268[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Defendant further established that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) its denial of claim forms denying the claims on that ground. In opposition, plaintiff failed to raise a triable issue of fact. However, defendant concedes that it failed to timely request EUOs for claims in the amounts of $148.69, $188.16, $54.74 and $138.72 and offers no basis to disturb so much of the order as granted plaintiff summary judgment on those claims.

Defendant, if it be so advised, may move in the District Court to resettle the order of the District Court to correct the error regarding defendant’s name in the caption therein.

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon 17 of 21 claims set forth therein, other than those in the amounts of $148.69, $188.16, $54.74 and $138.72, are granted, and the branches of plaintiff’s cross motion seeking summary judgment upon so much of the complaint as sought to recover upon those 17 claims are denied.

ADAMS, P.J., GARGUILO and EMERSON, JJ., concur.

[*1]

Hollander Legal Group, P.C. (Harris J. Zakarin, P.C., Melville, NY, of counsel), for appellant.

Aleksandr Vakarev, Brooklyn, NY (Harlan Wittenstein of counsel), for respondent.

In an action to recover no-fault benefits for medical expenses, the defendant appeals from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated October 26, 2017. The order, inter alia, in effect, denied that branch of the defendant’s motion which was for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant’s motion which was for summary judgment dismissing the complaint is granted.

On October 3, 2014, the plaintiff allegedly was injured when he was struck by a motor vehicle owned by George W. Nellen. The defendant was Nellen’s motor vehicle insurance carrier at the time of the accident. The plaintiff submitted an application for no-fault benefits for medical expenses to the defendant. The defendant denied the plaintiff’s application on the ground that the plaintiff’s injuries were not causally related to the alleged motor vehicle accident.

The plaintiff commenced this action to recover no-fault benefits for medical expenses. After issue was joined, the defendant moved pursuant to CPLR 3212, 3211 (a) (1), (3) and (7) to dismiss the complaint. The defendant alleged, inter alia, that the plaintiff had assigned his eligibility to receive no-fault benefits from the defendant to various medical providers, and, thus, he had no standing to maintain the action. The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211 (a) (3) and 3212, on the grounds that the motion was premature due to outstanding disclosure. The defendant appeals.

The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assigned his right to no-fault benefits to 10 different medical providers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209 [2018]).

We disagree with the Supreme Court’s denial of the defendant’s motion without prejudice with leave to renew due to outstanding disclosure. The plaintiff failed to establish that discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendant (see CPLR 3212 [f]; Portalatin v City of New York, 165 AD3d 1302 [2018]; Williams v Spencer-Hall, 113 AD3d 759, 760 [2014]; Boorstein v 1261 48th St. Condominium, 96 AD3d 703, 704 [2012]).

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint. Mastro, J.P., Cohen, Maltese and LaSalle, JJ., concur.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

In an action for a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, the plaintiff appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered October 30, 2017. The order denied the plaintiff’s unopposed motion for leave to enter a default judgment against the defendant.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for leave to enter a default judgment against the defendant is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas.

The plaintiff, a no-fault insurance carrier, commenced this action seeking a de novo adjudication of an insurance dispute concerning the denial of a no-fault claim involving the defendant (see Insurance Law § 5106 [c]). The plaintiff sought a judgment declaring that the plaintiff is not obligated to pay the claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, on the grounds that the services were not medically necessary, were not related to the subject motor vehicle accident, and/or were billed in excess of the fee schedule. The defendant had been awarded more than $5,000 against the plaintiff as a result of a master arbitration award.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to answer the complaint or appear in this action. The defendant failed to oppose the motion. The Supreme Court denied the plaintiff’s motion on the basis that the master arbitration award confirming an original arbitration award was supported by evidence in the record, was rationally based, and was not arbitrary or capricious. The plaintiff appeals.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215 [f]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 769 [2016]; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via the Secretary of State (see Business Corporation Law §§ 306 [b]; 1513; CPLR 311 [a] [1]), and an additional copy of the summons and complaint upon the defendant pursuant to CPLR 3215 (g) (4). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). It also submitted, inter alia, a copy of the complaint verified by its attorney (see CPLR 105 [u]; 3020 [d] [3]; 3215 [f]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195 [2017]; Martin v Zangrillo, 186 AD2d 724 [1992]), its expert’s affirmed peer review, the arbitration award in excess of $5,000, and the master arbitration award confirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770). The defendant failed to oppose the plaintiff’s motion (see Fried v Jacob Holding, Inc., 110 AD3d at 60).

Accordingly, the plaintiff’s motion for leave to enter a default judgment against the defendant should have been granted. Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the plaintiff is not obligated to pay a claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas (see Lanza v Wagner, 11 NY2d 317, 334 [1962]). Mastro, J.P., Balkin, LaSalle and Connolly, JJ., concur.

Decided on March 22, 2019

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

Decided on March 22, 2019

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

Zara Javakov, P.C. (Zara Javakov 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 (Devin P. Cohen, J.), entered December 16, 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered December 16, 2016, the Civil Court granted defendant’s motion. Plaintiff’s sole argument on appeal is that defendant’s motion should have been denied because plaintiff objected to defendant’s EUO demands and defendant failed to establish that the demands were reasonable.

The record reflects that plaintiff, in effect, objected to defendant’s EUO scheduling letters in connection with assignor Rosemary Leon on the ground that the letters did not set forth the objective standards on which the EUO demands were based or sufficiently specify the reasons for the demands, and further requested that defendant provide both the objective standards and reasons for the demands. Since plaintiff failed to submit proof that it had mailed an objection letter in connection with assignor Adris Maria, plaintiff’s argument with respect to that assignor lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant was not required to provide the reason for its demand for an EUO in response to an objection from plaintiff. “No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the [*2]regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The Department of Financial Services’^[FN1] interpretation of the No-Fault Regulations is entitled to deference unless that interpretation is ” ‘irrational’ ” or ” ‘unreasonable’ ” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006], quoting Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Since defendant was not required to provide—either in its scheduling letters or in response to an objection from plaintiff—the reason for its demand or the objective standards upon which its EUO demands were based, and since that is the only ground for plaintiff’s appeal, there is no basis to disturb the order appealed from.

Accordingly, the order is affirmed.

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

Footnotes

Footnote 1:In 2011, the Insurance Department and the Banking Department merged into the newly created “Department of Financial Services.”

Decided on March 22, 2019

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