Past Couple-O-Months of no-fault.

 

App. Div., 2nd Dept

Matter of Carothers v GEICO Indem. Co., 2010 NY Slip Op 09256 (App. Div., 2nd 2010)

St. Barnabas Hosp. v Country Wide Ins. Co., 2010 NY Slip Op 09121 (App. Div., 2nd 2010)

Contrary to the plaintiff's contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff's claim, based upon the contention that the policy limits have been partially exhausted (see Hospital for Joint [*2]Diseases v Hertz Corp., 22 AD3d 724; see generally Buechel v Bain, 97 NY2d 295, 303, cert denied 535 US 1096; Frankel v J.P. Morgan Chase & Co., 76 AD3d 664).

Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 2010 NY Slip Op 08933  (App. Div., 2nd 2010)

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile benefits, insurance companies are required to either pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[c]). Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its claim for benefits since the evidence demonstrates that the defendant made a partial payment and a partial denial of the claim within 30 days after receipt thereof (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512; see generally Alvarez v Prospect Hosp., 68 NY2d 320).

Furthermore, under the circumstances of this case, the minor factual discrepancy contained in the defendant's denial of claim form did not invalidate the denial. In addition, the denial was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665, quoting Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44; cf. New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564).

St. Barnabas Hosp. v Penrac, Inc., 2010 NY Slip Op 09122 (App. Div., 2nd 2010)

The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that it timely denied the subject claim on the ground that the hospital did not submit the claim until approximately 18 months after services were rendered to the patient, a period well beyond that called for in the applicable regulation (see 11 NYCRR 65-2.4[c]). The hospital did not provide any clear and reasonable justification for the delay in response to the denial. Moreover, the hospital failed to raise a triable issue of fact in opposition to the defendant's motion, specifically in connection with its argument that the denial of the claim was invalid. In this regard, while the hospital based its own motion for summary judgment, and its opposition to the defendant's motion, on its assertion that the defendant's denial of claim form contained errors which rendered it fatally defective and a nullity (see e.g. St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996;Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664), the errors complained of were inconsequential and posed no possibility of confusion or prejudice to the hospital under the circumstances [*2]of this case. Accordingly, the defendant fulfilled its obligation to "include the information called for in the prescribed denial of claim form" and to "promptly apprise the [hospital] with a high degree of specificity of the ground" for the denial of no-fault benefits (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d at 996 [internal quotation marks omitted]).

App. Div., 3rd Dept

Kruger v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 09456 (App Div., 3rd 2010)

After joinder of issue and discovery, defendant moved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right to payment for no-fault benefits to her chiropractor and did not have standing to bring the present action. Supreme Court agreed that plaintiff lacked the capacity to sue and dismissed the complaint, and plaintiff appeals.

Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was not raised in a pre-answer motion to dismiss or in defendant's answer, it was waived and cannot [*2]now be advanced (see CPLR 3211 [a] [3], [e]; McHale v Anthony, 70 AD3d 466, 467 [2010]; Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1087 [2007]). Contrary to defendant's contention, the standing issue does not implicate the jurisdiction of Supreme Court such as to render it nonwaivable. Supreme Court is empowered to determine whether defendant is liable to pay no-fault benefits (see Marangiello v Kamak, 64 AD2d 624, 625 [1978]), and whether plaintiff is a proper person to pursue that claim "is an issue separate from the subject matter of the action or proceeding, and does not affect the court's power to entertain the case before it" (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2007]; see Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092-1093 [2008]). Accordingly, defendant waived its right to assert lack of standing as an affirmative defense.

App. Term 1st Dept

Triangle R Inc. v Praetorian Ins. Co., 2010 NY Slip Op 52294(U) (App. Term 1st 2010)

Although defendant's September 28, 2007 follow-up request, issued 15 days after the expiration of the 30-day period within which plaintiff was required to respond to the initial August 14, 2007 verification request, did not strictly comply with the time limitation prescribed by the regulation (see 11 NYCRR 65-3.6[b]), this does not, under the circumstances presented here, deprive defendant of the benefit of the tolling of the 30-day period (see Infinity Health Prod., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; see also Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Moreover, defendant's "improper" follow-up request of August 28, 2007 (cf. Infinity Health Prod., Ltd.,supra), does [*2]not vitiate the validity of the September 28, 2007 follow-up request. "[I]t would be incongruous to conclude that the insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer's requests" (id. at 865). Accordingly, since plaintiff did not respond to defendant's verification requests, its action is premature, and defendant's motion for summary judgment dismissing the complaint as premature should have been granted. 

Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co., 2010 NY Slip Op 52297(U) (App. Term 1st 2010)

In this action to recover assigned first-party no-fault benefits, defendant's submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers' Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor's employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010];Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). "Primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board" (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record "is best suited for determination by the [Workers' Compensation] Board, given its expertise in the area" (Arvatz, 171 AD2d at 269), and the parties' respective summary judgment motions should have been held in abeyance pending a determination by the Workers' Compensation Board as to the applicability of the Workers' Compensation Law to plaintiffs' claim (see Botwinick, supra; Dunn, supra;LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

We note that, contrary to plaintiffs' contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).

Lenox Hill Radiology, PC v Tri-State Consumer Ins. Co., 2010 NY Slip Op 20529 (App. Term 1st 2010)

Before concluding, we would be remiss in failing to note that the facts and circumstances of this action do much to illustrate the disturbing reality that first-party no-fault benefits litigation has become the antithesis of what was supposed to be an expeditious and simplified process for the payment of medical costs for injuries sustained in motor vehicle accidents (see Walton v Lumbermans Mutual, 88 NY2d 211, 214 [1996]). Too often, lawsuits with a value akin to a small claims action become bogged down by an insistence by one party or another that mailing of routine forms be established with scientific precision, asking judges, already burdened to the breaking point with the veritable legion of no-fault cases overflowing from our court dockets (while very able arbitrators remain underutilized), to require multiple witnesses to be summoned to the courthouse, merely to establish a presumption of mailing, even in the absence of an express denial of receipt of the disputed correspondence. Unfortunately, this class of cases has spawned a body of "gotcha" jurisprudence, marked by a near manic preoccupation with form over substance.

How we have reached this sorry state is of little moment.

Enko Enters. Intl., Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52267(U) (App. Term 1st 2010)

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, which asserted claims to recover assigned first-party no-fault benefits. Defendant demonstrated, through the affirmed peer review report of a physician, that the medical supplies plaintiff-provider afforded to its assignor were not medically necessary (see generally CPT Medical Services, P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 [2007]). In this connection, we note that the physician opined that the medical supplies were not medically necessary because the assignor was already receiving both physical and chiropractic therapy for his injuries, treatment that the physician concluded was sufficient under the circumstances. In opposition, plaintiff, which did not submit any evidence regarding the medical necessity of the supplies, failed to raise a triable issue. 

Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 2010 NY Slip Op 52039(U) (App. Term 1st 2010)

In a separate action commenced by defendant-insurer against various medical providers, including plaintiff herein, Supreme Court, Kings County (Richard Velasquez, J.), declared in a judgment resolving that action that defendant may deny all no-fault claims arising from injuries sustained by plaintiff's assignor, Jarrod Ward, in a May 21, 2008 motor vehicle accident. Based upon this Supreme Court judgment, the underlying actions commenced by plaintiff to recover assigned, first-party no-fault benefits for medical services rendered to Jarrod Ward for injuries sustained in the May 21, 2008 accident are barred under the doctrine of res judicata (see SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [2009]). Notably, a different judgment in the underlying actions would destroy or impair rights established by the judgment rendered by Supreme Court, Kings County in the prior action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff's claim, the Supreme Court judgment is a conclusive final determination, notwithstanding that it was entered on the default of plaintiff, since res judicata applies to a judgment taken by default that has not been vacated (see Trisingh Enters., Inc. v Kessler, 249 AD2d 45 [1998]; Robbins v Growney, 229 AD2d 356 [1996]). Therefore, Civil Court should have granted defendant's motion for summary judgment dismissing the underlying actions.

Odessa Med. Supply, Inc. v MVAIC, 2010 NY Slip Op 51930(U) (App. Term 1st 2010)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law on its claim for assigned first-party no-fault benefits (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]), defendant raised a triable issue regarding its "lack of coverage" defense (see generally Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Notably, defendant submitted competent evidence identifying a potential source of insurance for the subject loss (see Insurance Law § 5221).

Michael Palmeri, M.D., PLLC v General Assur. Co., 2010 NY Slip Op 51879(U) (App. Term 1st 2010)

Defendant did not present a reasonable excuse for its failure to provide written responses to plaintiff's disclosure requests or its failure to submit opposition papers to plaintiff's motion to strike defendant's answer pursuant to CPLR 3126. Therefore, Civil Court providently exercised its discretion in denying defendant's motion to vacate a default judgment entered against it following its failure to oppose plaintiff's motion to strike.

Even assuming that defendant's argument regarding its request for an adjournment of plaintiff's motion to strike is properly before us, Civil Court providently exercised its discretion in denying that request (see generally Santora & McKay v Mazzella, 211 AD2d 460, 462 [1995]).

New Millenium Med. Supply v Clarendon Natl. Ins. Co., 2010 NY Slip Op 51820(U) (App. Term 1st 2010)

Plaintiff's cause of action to recover assigned first-party no-fault benefits pursuant to a policy of insurance was not interposed within the applicable six-year statute of limitations (see Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775 [2007]), since the cause of action accrued on the date the claim became overdue — here, 30 days after defendant's receipt of the claim — not the date of defendant's untimely denial of the claim (see Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987], lv denied 71 NY2d 801 [1988]). Plaintiff's reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. (272 AD2d 222 [2000]) is misplaced, since that case involved a general denial of claim issued under 11 NYCRR 65.15(g)(2)(ii) (now 65-3.8[b][2]) terminating no-fault benefits on the ground that the claimant was no longer disabled, while the matter at bar involves the factually and legally distinct situation in which a specific claim for no-fault benefits has been submitted to an insurer for payment or denial. Therefore, the complaint should have been dismissed as time-barred (see Insurance Law § 5106[a]; 11 NYCRR 65-3.8[a][1]; Matter of Travelers Indem. Co. of Conn., supra; Benson, supra).

App. Term 2nd Dept

Davidov Med., P.C. v Firemans Fund Ins. Co., 2010 NY Slip Op 52220(U)

Upon a review of the record, we find that defendant did not make a prima facie showing [*2]that it had paid the four specific bills alleged by plaintiff in its complaint to be outstanding. Accordingly, defendant's motion should have been denied (see Alvarez v Prospect Hosp., 68 NY2d at 324).

Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 52222(U)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. In the case at bar, defendant was not attempting to prove that the assignor was injured as documented in his medical records, or that he was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in the assignor's records were true, the treatment allegedly provided by plaintiff was not medically necessary. Therefore, such underlying medical records were not being used for a hearsay purpose (see e.g. Matter of State of New York v Wilkes, ___ AD3d ___, 2010 NY Slip Op 07006 [4th Dept 2010]; Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided plaintiff was not medically necessary is irrelevant.

We further note that plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue which plaintiff provided were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat defendant's motion for summary judgment.

Gentle Care Acupuncture, P.C. v Geico Ins. Co., 2010 NY Slip Op 52226(U)

The record demonstrates that the acupuncture services at issue were rendered by a licensed acupuncturist, and that defendant timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the portions of plaintiff's claims for acupuncture services that it determined exceeded the proper rate of reimbursement for services provided by a licensed acupuncturist. As a matter of law, an insurer may use the workers' compensation fee [*2]schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such services (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since it is undisputed that defendant reimbursed plaintiff pursuant to such workers' compensation fee schedule, plaintiff is not entitled to any additional reimbursement on the claims which defendant determined exceeded the proper rate of reimbursement under the fee schedule for acupuncture services rendered by a chiropractor, and defendant's cross motion for summary judgment with respect to the unpaid portions of said claims should have been granted.

Belt Parkway Imaging, P.C. v State Wide Ins. Co., 2010 NY Slip Op 52229(U)

On appeal, defendant contends that the Civil Court erred in finding that defendant had to establish its defense – – that plaintiffs were operated in violation of state licensing requirements thereby making plaintiffs ineligible for reimbursement of no-fault benefits – – by clear and convincing evidence rather than merely by a preponderance of the evidence. In support of this proposition, defendant cites V.S. Med. Servs., P.C. v Allstate Ins. Co. (25 Misc 3d 39 [App Term, 2d, 11th & 13th Jud Dists 2009] [an insurer need only establish the defense of a staged accident by a preponderance of the evidence]). We need not ultimately decide this issue here since, upon a review of the record, we find that the evidence adduced at trial was insufficient to establish, even by a preponderance of the evidence, that plaintiffs were operated in violation of state licensing requirements. To the extent that defendant sought to establish at trial that the management company hired by plaintiffs was the entity that actually "operated" (Mallela at 319) the plaintiff corporations, the record is devoid of facts establishing any of the indicia of ownership or control by one other than plaintiffs' licensed professional.

Where, as here, a provider is found to be entitled to reimbursement of no-fault benefits, it is entitled to no-fault statutory interest from the time that the claim is overdue (see former Insurance Department Regulations [11 NYCRR] § 65.15 [h] [1], now Insurance Department Regulations [11 NYCRR] § 65-3.9 [a]). However, statutory interest is tolled if the provider fails to request arbitration or commence a lawsuit within 30 days after receiving the denial (see LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217, 223 [2009]; East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d & 11th Jud Dists 2007], affd 61 AD3d 202 [2009]). Since defendant failed to establish that it ever sent denial of claim forms to plaintiffs, the accrual of interest was never tolled and interest due on the claims commenced from 30 days after the claims were submitted to the insurer for payment (see Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). Upon a review of the [*3]record, we find that the Civil Court properly determined the date that interest began to accrue.

With regard to defendant's contention that the interest was improperly compounded, former Insurance Department Regulations (11 NYCRR) § 65.15 (h) (1) provided for interest at the rate of "two percent per month, compounded." While the aforementioned regulation was superseded on April 5, 2002 by Insurance Department Regulations (11 NYCRR) § 65-3.9 (a), which provides for "interest at a rate of two percent per month, calculated on a pro-rata basis using a 30-day month," the claims involved herein are all governed by the former Insurance Department Regulations. Defendant further asserts that to the extent that the former regulation provided for the compounding of interest, it was inconsistent with the statute. However, the statute merely provides for interest to be calculated at a rate of 2% per month and does not indicate a legislative preference for either simple or compound interest. Since the regulation providing for compound interest is not inconsistent with Insurance Law § 5106 (a) and it "is neither irrational nor unreasonable, it is entitled to deference" (East Acupuncture, P.C., 61 AD3d at 209). Accordingly, defendant's contention that the court erred in awarding compound interest lacks merit.

Finally, defendant's defense of statute of limitations was waived since defendant never raised said defense in its answer or in a pre-answer motion to dismiss the complaint (see CPLR 3211 [e]; Ferri v Ferri, 71 AD3d 949 [2010]).

Axis Chiropractic, PLLC v United Auto. Ins. Co., 2010 NY Slip Op 52150(U)

Where a defendant moves to dismiss an action on jurisdictional grounds and such jurisdictional challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In its cross motion papers, plaintiff failed to show that some basis for jurisdiction existed; rather, it merely argued that the affidavit of defendant's litigation specialist was insufficient since he did not establish that he had the authority to speak on jurisdictional matters on behalf of defendant. Plaintiff further asserted that it was entitled to discovery to see whether there was proper jurisdiction. We find no merit to plaintiff's contention that the affidavit of defendant's litigation specialist was insufficient (see generally NYC Med. & Neurodiagnostic, P.C. v Republic W. Ins. Co., 8 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, plaintiff failed to establish that facts essential to justify opposition may exist" but are not available to it, thereby warranting a continuance for further discovery (see CPLR 3211 [f]).

We turn next to plaintiff's contention, raised for the first time on appeal, that defendant's motion to dismiss pursuant to CPLR 3211 (a) (8) was improperly made after defendant had served its answer. Even if it be assumed that this contention is properly before us, we note that CPLR 3211 (c) provides that, after adequate notice to the parties, the court may treat a CPLR 3211 motion as a motion for summary judgment. It has been held that where, as here, a motion is mislabeled as a motion to dismiss pursuant to CPLR 3211 instead of CPLR 3212 and the opponent is not notified that the motion will be treated as a motion for summary judgment, the defect should be disregarded if it caused the plaintiff no prejudice (see Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Hertz Corp. v Luken, 126 AD2d 446 [1987]; see generally O'Hara v Del Bello, 47 NY2d 363 [1979]). Further, while defendant should have annexed a copy of its answer to its motion (CPLR 3212 [b]), this defect was properly overlooked by the Civil Court (see Rodriguez v Ford Motor Co., 62 AD3d 573 [2009]).

Vincent Med. Servs., P.C. v GEICO Ins. Co., 2010 NY Slip Op 52153(U)

To the extent that defendant asserted that the fees charged were not in conformity with the workers' compensation fee schedule, defendant did not specify the actual reimbursement rates which formed the basis for its determination that plaintiff had billed in excess of the maximum amount permitted (see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant failed to raise a triable issue of fact, and plaintiff was properly awarded summary judgment, with respect to the first, second and third causes of action.

Fortune Med., P.C. v Country Wide Ins. Co., 2010 NY Slip Op 52154(U)

To the extent that defendant, in its brief on appeal, seeks restitution in the event the judgment is reversed (see CPLR 5523), its application is denied without prejudice to seeking such relief in the Civil Court, to be decided by the court upon its determination of the merits of the action. 

Triangle R, Inc. v Clarendon Ins. Co., 2010 NY Slip Op 52159(U)

Contrary to plaintiff's contention, the fact [*2]that copies of the verification requests, which were sent to plaintiff's assignor, were sent to the wrong address does not render the verification requests a nullity since the requested verification was sought from plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [c]; § 65-3.6 [b]; cf. Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the commencement of the action, with the requested verification, the 30-day period within which defendant was required to pay or deny the claims did not begin to run and plaintiff's action is premature (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007];Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Allstate Social Work & Psychological Svcs, PLLC v GEICO Gen. Ins. Co., 2010 NY Slip Op 52162(U)

Defendant's motion to vacate the notice of trial and strike the matter from the trial [*2]calendar was timely, and the affirmation in support of the motion accurately stated the reason that the action was not entitled to be on the trial calendar (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]), i.e., that there was outstanding discovery, an allegation which is undisputed by plaintiff. Consequently, the motion was properly granted since it was based upon a certificate of readiness which contains the erroneous statement that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]; Hillside Neurology Care P.C. v Travelers Ins. Co., 11 Misc 3d 127[A], 2006 NY Slip Op 50234[U] [App Term, 1st Dept 2006]). Contrary to plaintiff's contention, the doctrine of laches does not warrant a denial of defendant's motion (see Kornblatt v Jaguar Cars, 172 AD2d 590 [1991]; Queens Chiropractic Mgt., P.C., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U]). Moreover, since plaintiff failed to timely challenge the propriety of defendant's discovery demands (see CPLR 3122 [a]; 3133 [a]), it must comply with the Civil Court's direction that it provide responses to defendant's discovery demands, except as to matters which are privileged or palpably improper (see Fausto v City of New York, 17 AD3d 520 [2005]).

Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 20493

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order dated August 8, 2006, the Civil Court denied both the motion and the cross motion, found that the only triable issue of fact was whether the fees charged were excessive and stated that the trial was limited to that issue, citing CPLR 3212 (g).

In accordance with the August 8, 2006 order, the nonjury trial began with defendant's presentation of its defense. Defendant's attorney sought to present evidence to demonstrate, in effect, that plaintiff was not eligible for reimbursement under the No-Fault Law because plaintiff's sole shareholder was not licensed or certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 [*2]Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Civil Court would not allow defendant to present this evidence because, the court found, it was barred by the August 8, 2006 order, which limited the issue for trial to the excessiveness of the fee schedule. When defendant failed to proffer any evidence as to its fee schedule defense, plaintiff moved for a directed verdict and the court granted plaintiff's motion. Subsequently, a judgment was entered in favor of plaintiff, and the instant appeal by defendant ensued.

On appeal, defendant argues, in effect, that the August 8, 2006 order improperly barred defendant from asserting its defense that plaintiff was not eligible for reimbursement under the No-Fault Law pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12). Defendant also argues, in effect, that to the extent said order could be interpreted to read that plaintiff did not have to prove its case at trial, the order was improper.

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to "ascertain what facts are not in dispute or are incontrovertible" (CPLR 3212 [g]). Under that circumstance, the court is directed to "make an order specifying such facts," which will then "be deemed established for all purposes in the action." In addition, the court is permitted to "make any order as may aid in the disposition of the action."

Upon a review the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted "proof of the fact and amount of loss sustained" to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff's motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Accordingly, the judgment is reversed, so much of the order dated August 8, 2006 as stated that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

Five Boro Psychological, P.C. v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 52122(U)

In opposition to the motion, plaintiff established that on November 5, 2007, prior to the date that defendant brought the motion that gave rise to the instant appeal, the Civil Court had issued an order granting plaintiff summary judgment in this action and awarding it the sum of $1,078.32, together with applicable statutory interest, attorney's fees, costs and disbursements. In view of the foregoing, there has been a final adjudication on the merits in this action (see QFI, Inc. v Shirley, 60 AD3d 656 [2009]; Methal v City of New York, 50 AD3d 654 [2008]). Thus, there was no longer a pending action with which other actions could be consolidated pursuant to CPLR 602 (a) (see Fischer v RWSP Realty, LLC, 53 AD3d 595 [2008]). Accordingly, the order denying defendant's motion for consolidation is affirmed. We pass on no other issue.

St. Vincent's Hosp. & Med. Ctr. v American Tr. Ins. Co., 2010 NY Slip Op 52063(U)

Defendant's verification requests sought copies of NF-5 forms signed by SVHMC's assignors. However, the only [*2]portions of an NF-5 form which may bear the signature of an eligible injured person are the portions which authorize the release of health service or treatment information in accordance with the No-Fault Law and which either assign no-fault benefits to a provider or authorize the provider to receive payments directly from the insurer. As defendant was already in possession, prior to its verification requests, of the subject NF-5 forms, which each bore notations that the assignor's signature was "on file," defendant's verification requests, in effect, sought a copy of the document(s) "on file" which had been signed by the assignors. Since SVHMC established that it had, in response to the verification requests, provided defendant with copies of the authorizations to release information and the assignments executed by the assignors, SVHMC established that it had complied with those requests. While defendant's attorney asserted that defendant had never received the signed assignment of benefits forms, defendant's attorney's affirmation was without probative value as defendant's attorney lacked personal knowledge of same (see Wolfson v Rockledge Scaffolding Corp., 67 AD3d 1001 [2009]; Fiveborough Chiropractic & Acupuncture, PLLC v American Employers' Ins. Co. Div. of Onebeacon Am. Ins. Co., 24 Misc 3d 133[A], 2009 NY Slip Op 51395[U] [App Term, 9th & 10th Jud Dists 2009]).

Astoria Wellness Med., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 52008(U) (there is a dissent)

To vacate an order upon default, the movant is required to establish both a reasonable excuse for its default and a meritorious defense to the motion (see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]; A.B. Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). A court may exercise its discretion and accept a claim of law office failure as a reasonable excuse (seeCPLR 2005), provided the facts submitted in support thereof, in evidentiary form, are sufficient to justify the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]) and include "a detailed explanation of [the] oversights" (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 443 [2004]; see Grezinsky v Mount Hebron Cemetery, 305 AD2d 542 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682, 683 [1993]). Defendant's excuse of law office failure was not reasonable under the circumstances presented. Defendant failed to adequately explain why it did not re-file its opposition papers in the correct Civil Court part after the court clerk had notified defendant of its filing error and had provided it with instructions on [*2]how to properly re-file. 

Ave T MPC Corp. v Amica Mut. Ins. Co., 2010 NY Slip Op 52009(U)

This action by a provider to recover assigned first-party no-fault benefits was commenced in February 2005. Defendant moved for summary judgment dismissing the complaint and attached the affidavit of its claims representative, who stated that defendant had received the complaint on March 1, 2005 and had received the bills at issue for the first time, by facsimile, on March 17, 2005. Defendant also annexed the proof of mailing that plaintiff had submitted to defendant along with the bills. The claims representative stated that the proof of mailing indicated that the claim forms had previously been mailed to an address at which defendant has never been located. In opposition to defendant's motion, plaintiff argued, among other things, that the acknowledgment accompanying defendant's affidavit did not comply with CPLR 2309 (c). Defendant submitted reply papers, including a certificate of conformity. The Civil Court granted defendant's motion, finding that defendant's failure to submit a certificate of conformity had been cured and that the action was premature since defendant had not received the claim forms at issue until after the lawsuit had been commenced.

Under these circumstances, we find that defendant's submissions support the determination that defendant had not received any claim forms prior to the commencement of the [*2]action. With respect to plaintiff's timely objection to the form of defendant's claims representative's affidavit, we note that while defendant permissibly sought to cure this defect by annexing a certificate of conformity to its reply papers (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]), the document annexed to defendant's reply papers was not made by an authorized person pursuant to Real Property Law § 299-a. Because the certificate of conformity can be given nunc pro tunc effect once the proper certificate is obtained, we affirm the order on the conditions stated above (see Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co., 26 Misc 3d 131[A], 2010 NY Slip Op 50043[U] [App Term, 1st Dept 2010]; see generally Sandoro v Andzel, 307 AD2d 706 [2003]).

Golden Age Med. Supply, Inc. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 52010(U)

Defendant's second argument is that plaintiff should not recover for services rendered to assignor Espinal because he made material misrepresentations in order to obtain the subject New Jersey insurance policy. While New York law does not allow for the retroactive cancellation of an automobile insurance policy (see Vehicle and Traffic Law § 313), New Jersey law does allow for such retroactive rescission for a material misrepresentation at the inception of the policy (see Rutgers Cas. Ins. Co. v LaCroix, 194 NJ 515, 946 A2d 1027 [2008]), and, had there been a cancellation of the subject insurance policy, New Jersey law would properly be applied (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). However, defendant has not demonstrated that it cancelled the subject insurance policy.

On the other hand, defendant's employee's assertion that the subject insurance policy was obtained by fraud and/or material misrepresentations is a permissible affirmative defense that, if proved, precludes any recovery by the insured or a health care provider who accepts an assignment of the insured's no-fault benefits (see A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8, 11 [App Term, 2d & 11th Jud Dists 2006]). We find that while the documents attached to defendant's cross motion are not a sufficient basis for an award of summary judgment dismissing the complaint as to the claims submitted for services rendered to assignor Espinal, they are sufficient to raise a triable issue of fact as to whether the subject insurance policy was fraudulently obtained.

Viviane Etienne Med. Care, P.C. v Alea N. Am. Ins. Co., 2010 NY Slip Op 52011(U)

In support of its motion, defendant submitted an affidavit from a claims adjuster employed by defendant's third-party claims administrator, who averred that her company had become aware of this action on or about January 26, 2007 when it had received copies of the summons and complaint. The administrator tried to locate the underlying claim file but was delayed in doing so because the file was in the process of being transferred to the insurance company that had just purchased the subject insurance policy from defendant. The administrator finally obtained the claim file on or about August 1, 2007 and only then assigned counsel, who served plaintiff with an answer on August 15, 2007.

Based on the above facts, defendant failed to proffer a reasonable excuse for its default. A party in jeopardy of defaulting for nonappearance in an action may request an extension of time to file its answer upon good cause shown (see CPLR 2004). Failure to move pursuant to CPLR 2004 for an extension of time to file an answer may eviscerate the grounds for a reasonable excuse (cf. Builders Mechanic Co. v Claiborne, 277 AD2d 193 [2000]; Weiss v Kahan, 209 AD2d 611, 612 [1994]). Here, defendant was served with the summons and complaint on January 15, 2007 and its third-party claims administrator received a copy of the summons and complaint on January 26, 2007. Thereafter, both defendant and its third-party [*2]claims administrator knowingly failed to take any action with respect to this lawsuit for approximately eight months. In the interim, plaintiff applied for a default judgment in March 2007, and a default judgment was entered on September 6, 2007.

Rockaway Med. & Diagnostic, P.C. v Country-Wide Ins. Co., 2010 NY Slip Op 52012(U)

Although defendant proved that it had timely denied the claim on the sole ground that the MRI was not medically necessary, the only proof submitted by defendant in opposition to plaintiff's summary judgment motion was a registered nurse's peer review report. While "expert medical testimony need not come from a licensed physician" (People v Kehn, 109 AD2d 912, 914 [1985]), a registered nurse is a mere lay informant for purposes of medical diagnosis and treatment and is incompetent to render medical opinions without an accounting of his or her "training, observations or experience sufficient to establish such competence" (SZ Med. P.C. v [*2]Country-Wide Ins. Co., 12 Misc 3d 52, 55 [App Term, 2d & 11th Jud Dists 2006]; see generally People v Munroe, 307 AD2d 588, 591 [2003]). In the case at bar, the peer review report contained no facts in relation to any of the criteria necessary to establish that the nurse was competent to assert an expert medical opinion as to the lack of medical necessity of the MRI. Thus, defendant failed to raise a triable issue of material fact, and plaintiff should have been awarded summary judgment. In view of the foregoing, we reach no other issue.

Crotona Hgts. Med., P.C. v Mercury Ins. Co., 2010 NY Slip Op 52019(U)

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro's affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, 265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]), and the Civil Court should not have considered any facts set forth in that affirmation (see Pisacreta, 265 AD2d 540). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2010 NY Slip Op 52022(U)

The chiropractor's peer review report was affirmed (cf. CPLR 2106) instead of being sworn to before a notary public. However, inasmuch as plaintiff did not submit papers in opposition to defendant's cross motion for summary judgment, plaintiff waived such defect by failing to object to it in the Civil Court (see Akamnonu v Rodriguez, 12 AD3d 187 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut the conclusion set forth in the peer review report, the branch of defendant's cross motion seeking to dismiss the first cause of action should have been granted.

RLC Med., P.C. v Allstate Ins. Co., 2010 NY Slip Op 51962(U)

In opposition to plaintiff's motion, and in support of its cross motion to compel discovery, defendant established that facts may exist which are essential to oppose plaintiff's summary judgment motion but which could not then be stated (see CPLR 3212 [f]). Defendant indicated that it could not set forth sufficient facts to establish one of its defenses, to wit, plaintiff's alleged fraudulent incorporation (seeInsurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), since such information was within plaintiff's possession and plaintiff had not complied with defendant's notice to produce Dr. Collins for a deposition. In addition, defendant established its entitlement to depose Dr. Collins (see CPLR 3101 [a]; RLC Med., P.C. v Allstate Ins. Co., 27 Misc 3d 130[A], 2010 NY Slip Op 50642[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Sharma Med. Servs., P.C. v[*2]Progressive Cas. Ins. Co., 24 Misc 3d 139[A], 2009 NY Slip Op 51591[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Midwood Acupuncture, P.C. v State Farm Fire and Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d & 11th Jud Dists 2008]).

Axis Chiropractic, PLLC v Geico Gen. Ins. Co., 2010 NY Slip Op 51963(U)

Defendant's timely motion to vacate the notice of trial (see Uniform Rules of the New York City Civil Court [22 NYCRR] § 208.17 [c]) was properly granted inasmuch as the certificate of readiness contained erroneous statements that discovery had been completed (see Savino v Lewittes, 160 AD2d 176 [1990]; Queens Chiropractic Mgt., P.C. v Country Wide Ins. Co., 23 Misc 3d 142[A], 2009 NY Slip Op 51073[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; First Aid Occupational Therapy, PLLC v State Farm Mut. Auto. Ins. Co., 21 Misc 3d 128[A], 2008 NY Slip Op 51963[U] [App Term, 2d & 11th Jud Dists 2008]; Great Wall [*2]Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45 [App Term, 2d & 11th Jud Dists 2008]).

CPLR 3103 (a) empowers a court to issue a protective order "at any time." The failure of a party to promptly move for a protective order after receipt of discovery demands, however, is more likely to be resolved against the movant who provided no objections and was tardy with the motion (see B.Y. M.D., P.C. v Lancer Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50493[U] [App Term, 9th & 10th Jud Dists 2010]; Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3103:3). The issuance of a protective order is within the broad discretion of the court and dilatory conduct can result in a court's refusal to exercise its powers under CPLR 3103. Since plaintiff did not proffer a reasonable excuse for its delay in moving for a protective order, the Civil Court did not improvidently exercise its discretion when it denied the branch of plaintiff's cross motion seeking such relief.

AAA Chiropractic, P.C. v MVAIC, 2010 NY Slip Op 51896(U)

While plaintiff contends that the Civil Court erred in granting defendant's motion for summary judgment and denying its cross motion to compel defendant to respond to plaintiff's discovery demands, plaintiff's bald conclusory assertion that defendant should be compelled to respond to plaintiff's discovery demands because it could not adequately oppose defendant's motion for summary judgment without said discovery responses (see CPLR 3212 [f]) was insufficient "to demonstrate that discovery was needed in order to show the existence of a triable issue of fact" (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Indeed, any proof needed to establish a reasonable justification for plaintiff's failure to submit its claim forms to defendant in a timely manner would already be in plaintiff's possession.

Olga Bard Acupuncture, P.C. v Geico Ins. Co., 2010 NY Slip Op 51898(U)

ORDERED that the order, insofar as appealed from, is modified by providing that so much of plaintiff's motion as sought summary judgment as to the second and third causes of action and as to claims bearing codes 97810 and 97811 included in the first cause of action is denied, and so much of defendant's cross motion as sought summary judgment dismissing the second, third, fourth and fifth causes of action as well as so much of the first cause of action as sought to recover for claims bearing codes 97810 and 97811 is granted; as so modified, the order, insofar as appealed from, is affirmed without costs and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney's fees on the remaining award to plaintiff in the principal sum of $109.34.

B.Y., M.D., P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51902(U)

The District Court denied plaintiffs' motion on the ground that plaintiffs' complaint was insufficient pursuant to CPLR 3013 and 3014. The court ordered plaintiffs to submit an amended complaint, and held defendant's cross motion in abeyance pending such resubmission. The instant appeal by plaintiffs ensued.

Defendant's proof was sufficient to raise a question of fact as to whether plaintiffs' assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v [*2]American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order is reversed and plaintiffs' motion and defendant's cross motion are remitted to the District Court to be held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties' rights under the Workers' Compensation Law.

We note that, while the claims of the five plaintiffs were pleaded under one cause of action in the complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]).

Active Imaging, P.C. v Progressive Northeastern Ins. Co., 2010 NY Slip Op 51842(U)

Plaintiff contends that defendant failed to establish its prima facie entitlement to summary judgment since, although defendant's peer review doctor listed the medical reports and/or records of third parties that he had reviewed in reaching his conclusion that the services rendered were not medically necessary, defendant failed to annex to its moving papers copies of these documents. We reject this contention since these reports and records are not part of defendant's prima facie showing. We note that, pursuant to CPLR 3212 (f), a court has discretion to deny a motion for summary judgment or order a continuance to permit affidavits to be obtained or disclosure to be had, if "facts essential to justify opposition may exist but cannot then be stated." However, plaintiff failed to "put forth some evidentiary basis to suggest that discovery might lead to relevant evidence" (Trombetta v Cathone, 59 AD3d 526, 527 [2009]; see Canarick v Cicarelli, 46 AD3d 587 [2007]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2007]; Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614 [1999]), and the "mere hope" that discovery will uncover the existence of a material issue of fact is insufficient to delay a summary judgment determination (Giraldo v Morrisey, 63 AD3d 784, 785 [2009]). Inasmuch as plaintiff failed to rebut defendant's prima facie showing of its entitlement to summary judgment, defendant's motion was properly granted.

Craniofacial Pain Mgt. v MVAIC, 2010 NY Slip Op 51843(U)

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied a motion by defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC), pursuant to CPLR 5015, to vacate a default judgment entered against it. Inasmuch as MVAIC's motion was made more than one year after MVAIC was served with notice of the judgment, the court properly denied MVAIC's motion on the ground that it was untimely (CPLR 5015 [a] [1]; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885 [2010]; Terlizzese v Robinson's Custom Serv. Inc., 25 AD3d 547 [2006]). In any event, MVAIC's proffered defense lacks merit since Insurance Law § 5214 does not bar the entry of a default judgment against MVAIC in an action in which MVAIC is the named defendant and has defaulted (A.B. Med. Servs., PLLC v Motor Veh. Acc. Indem. Corp., 25 Misc 3d 138[A], 2009 NY Slip Op 52363[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, it is unnecessary to consider whether MVAIC demonstrated a reasonable excuse for its default (see Toland v Young, 60 AD3d 754 [2009]).