DMG – Page 64

Missing letter

Riley v Segan, Nemerov & Singer, P.C., 2011 NY Slip Op 02048 (App. Div. 1st 2011)

Supreme Court denied defendants' motion based on its finding that the moving papers were deficient because a March 7, 2005 letter referenced therein was not attached. We find that Supreme Court should have considered the motion on the merits because it is clear that defendants mistakenly failed to attach the letter to their moving papers but corrected their mistake by including it on reply. Plaintiffs were not prejudiced in any way because they actually received the letter as an exhibit with their copy of the moving papers and so were able to address the letter in their opposition (see Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 381-382 [2006]).

CPLR § 2001 from up on high

CPLR § 2001 Mistakes, omissions, defects, and irregularities

Goldenberg v Westchester County Health Care Corp., 2011 NY Slip Op 02075 (Ct. App. 2011)

The bill that amended CPLR 2001 was introduced at the request of the Chief Administrative Judge upon the recommendation of the Advisory Committee on Civil Practice. Its purpose was to allow trial courts to fix or, where non-prejudicial, overlook defects in the filing process, including the failure to acquire or purchase an index number so long as the applicable fees were eventually paid (see L 2007, ch 529). The Introducer's Memorandum states that the bill was offered in response to our decisions in Harris, Matter of Fry v Village of Tarrytown (89 NY2d 714 [1997]) and Matter of Gershel v Porr (89 NY2d 327 [1996]) (see Senate Introducer Mem in Support, Bill Jacket, L 2007, ch 529, at 5). Gershel and Harris both involved failure to pay the proper filing fee; in Fry, the plaintiff did not file a signed copy of an order to show cause along with his petition ^[FN3]. In each of these cases the correct initiatory papers were filed. As the Introducer's Memorandum emphasizes, the amendments to
section 2001 were not meant to

"excuse a complete failure to file within the statute of limitations. Moreover, in order to properly commence an action, a plaintiff or petitioner would still have to actually file a summons and complaint or a petition. A bare summons, for example, would not constitute a filing. The purpose of this measure is to clarify that a mistake in the method of filing, AS OPPOSED TO A MISTAKE IN WHAT IS FILED, is a mistake subject to correction in the court's discretion" (id. at 5-6 [capitalization in original] [emphasis added]).

Here, plaintiff never filed a summons and complaint. The closest he came was the proposed complaint attached to the petition he filed when seeking permission to file a late notice of claim, itself a prerequisite to the commencement of this action. Given the absence of a summons, there was "a complete failure to file within the statute of limitations," which CPLR 2001 does not allow a trial judge to disregard.^[FN4]

3211(a)(1), 3212(a)(f), among other things

NYP Holdings, Inc. v McClier Corp., 2011 NY Slip Op 02738 (App. Div., 1st 2011)

The motion that resulted in the order appealed from was Ruttura's second motion; it had previously made a motion for summary judgment dismissing the third-party complaint based on the volunteer doctrine (see 65 AD3d 186 [2009]).

As a general rule, "[p]arties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (Phoenix Four v Albertini, 245 AD2d 166, 167 [1997] [internal quotation marks and citation omitted]). However, there are exceptions to this rule (see e.g. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [2002]).

Ruttura made its previous motion on behalf of all third-party defendants, and not every third-party defendant had the same subcontract with third-party plaintiff McClier Corporation that Ruttura did; for example, third-party defendant Stallone Testing Laboratories, Inc.'s subcontract was oral. Therefore, Ruttura was not barred from making the instant motion with respect to the cause of action for contractual indemnification. However, the arguments that Ruttura now raises with respect to common-law or implied indemnification (McClier's participation in the wrongdoing alleged by plaintiff), contribution (the lack of tort damages), and breach of contract (McClier's failure to allege damages other than indemnification damages) could have been made on behalf of all the third-party defendants; hence, they should have been raised on the prior motion (see Phoenix, 245 AD2d at 167).

In addition, third-party defendants Stallone, Fred Geller Electrical, Inc., and First Women's Fire Systems Corp. had previously moved to dismiss the third-party complaint; the court (Herman Cahn, J.) granted the motion in part and denied it in part (see 2007 NY Slip Op 34111[U]). To the extent these third-party defendants' interests were identical to Ruttura's, they were in privity (see Matter of Midland Ins. Co., 71 AD3d 221, 226 [2010]), and to the extent an issue was actually decided on the Stallone motion, law of the case applies (see id. at 225-226). Thus, law of the case bars McClier's contribution claim against Ruttura and permits the common-law indemnification and breach of contract claims to survive. However, it does not prevent Ruttura from moving against the contractual indemnification claim, as Justice Cahn did not decide this issue.

Because neither the rule against successive summary judgment motions nor law of the case barred Ruttura from moving against the contractual indemnification claim, we consider it on the merits. The indemnification provision in the McClier-Ruttura subcontract states, in pertinent part, "[T]he Subcontractor shall indemnify . . . the . . . Contractor . . . from and against all claims . . . arising out of or resulting from performance of the Subcontractor's Work . . ., provided that any such claim . . . is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself)" (emphasis added).

One paragraph of the complaint alleges, in conclusory fashion, that "the Post has been damaged and continues to suffer damages to itself and to other property" (emphasis added). However, conclusory allegations are insufficient (see Celnick v Freitag, 242 AD2d 436, 437 [1997]; Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613, 615 [2010]). Read as a whole, the complaint's factual allegations show that the only property damage suffered by plaintiff was damage to its printing plant — for example, cracked concrete slabs and the fact that repair work will result in physical damage to the plant. Therefore, by submitting the complaint with its moving papers, Ruttura made a prima facie showing of entitlement to judgment as a matter of law on the contractual indemnification claim.

In opposition to this part of Ruttura's motion, McClier merely relied on the complaint. However, "[t]he burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified" (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343 [1974] [internal quotation marks and citation omitted]). "Bald conclusory assertions are insufficient to defeat summary judgment" (Spaulding v Benenati, 57 NY2d 418, 425 [1982]).

Note all the issues here: Successive SJ, Law of the Case, Privity, etc.

Gonzalez v ARC Interior Constr., 2011 NY Slip Op 02728 (App. Div., 1st, 2011)

However, we reject plaintiff's argument that as part of the award of summary judgment, the court should have, essentially, dismissed the affirmative defense of culpable conduct as a matter of law. The police report and plaintiff's bare-bones affidavit stating that she looked for oncoming traffic before crossing the street were insufficient to eliminate any issue of fact whether plaintiff exercised reasonable care in crossing the intersection (see Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]; Lopez v Garcia, 67 AD3d 558 [2009]; Hernandez v New York City Tr. Auth., 52 AD3d 367, 368 [2008]). It is noted again that the motion was made before defendants had an opportunity to depose plaintiff concerning the circumstances surrounding the accident and test her credibility (see Lopez, 67 AD3d at 558-559; CPLR 3212[f]; see also Donato v ELRAC, Inc., 18 AD3d 696, 698 [2005]). Thus, dismissal of the defense would have been premature.

Rivera v Board of Educ. of the City of New York, 2011 NY Slip Op 02142 (App. Div., 1st 2011)

While defendant's prior motion sought to dismiss either on the pleadings or on summary judgment and was denied as premature in light of the need for further discovery (with leave to renew within 120 days after a certain deposition was taken), the instant motion seeks to dismiss solely for failure to state a cause of action. Defendant therefore was not bound to bring the motion within the time imposed by the court for renewal of the summary judgment motion (see CPLR 3211[e]; Herman v Greenberg, 221 AD2d 251 [1995]). Nor does the motion violate the single motion rule (see CPLR 3211[e]), since the prior motion was not decided on the merits (see generally Ultramar Energy v Chase Manhattan Bank, 191 AD2d 86 [1993]; compare Miller v Schreyer, 257 AD2d 358, 361 [1999] ["the issue to be decided is whether defendants are entitled to a second determination of the identical question"]).

Comito v Foot of Main, LLC, 2011 NY Slip Op 02344 (App. Div., 2nd 2011)

The defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), contending that documentary evidence established the plaintiff's failure to comply with certain notice and payment provisions of the parties' stipulation of settlement. The items submitted to the Supreme Court by the defendants in support of their motion do not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1149-1150; Fontanetta v John Doe 1, 73 AD3d 78, 85-87). Even if these items constituted documentary evidence, they did not utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; All Is. Media, Inc. v Creative AD Worx, Inc., 79 AD3d 677; Granada Condominium III Assn. v Palomino, 78 AD3d at 996-997). Accordingly, the Supreme Court properly denied the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(1).

Deleg v Vinci, 2011 NY Slip Op 02619 (App. Div., 2nd 2011)

Furthermore, contrary to the defendants' contention, the plaintiffs' motion was not premature, as the defendants failed to demonstrate 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 plaintiffs and the nonparty driver (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736). "[T]he defendants' purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts" (Abramov v Miral Corp., 24 AD3d 397, 398). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760; see Corwin v Heart Share Human Servs. of N.Y., 66 AD3d 814; Monteleone v Jung Pyo Hong, 79 AD3d 988).

Freiman v JM Motor Holdings NR 125-139, LLC, 2011 NY Slip Op 02622 (App. Div. 2nd 2011)

Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the plaintiff's express written acknowledgments established that he was employed "at-will" and that the fraud allegations were patently insufficient, as they derived from his cause of action alleging breach of contract and were based on stated opinions or projections, rather than assertions of fact. The Supreme Court denied the motion for summary judgment, finding that the issues were "impossible to resolve" in the midst of discovery. We reverse.

****

There was no need to delay the determination of the motion by virtue of CPLR 3212(f). The plaintiff failed to demonstrate that additional discovery might lead to relevant evidence which would have defeated any branch of the defendants' motion (see Dempaire v City of New York, 61 AD3d 816; Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Lopez v WS Distrib., Inc., 34 AD3d 759, 760).

Greenpoint Props., Inc. v Carter, 2011 NY Slip Op 02625 (App. Div., 2nd 2011)

The Supreme Court erred by, in effect, granting that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, since the defendant failed to demonstrate good cause for not timely serving the motion as required by CPLR 3212(a) (see Brill v City of New York, 2 NY3d 648). "Significant outstanding discovery may, in certain circumstances, constitute good cause for the delay in making a motion for summary judgment" (Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d 702, 703; see Grochowski v Ben Rubins, LLC, 81 AD3d 589; Kung v Zheng, 73 AD3d 862, 863; Richardson v JAL Diversified Mgt., 73 AD3d 1012, 1012-1013; McArdle v 123 Jackpot, Inc., 51 AD3d 743, 745; Sclafani v Washington Mut., 36 AD3d 682, 682). Here, however, contrary to the defendant's contention, the discovery outstanding at the time the note of issue was filed was not essential to his motion (see Tower Ins. Co. of N.Y. v. Razy Assoc., 37 AD3d at 703). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, "the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment" (John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901; see Brill v City of New York, 2 NY3d at 652). Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was for leave to serve and file a late motion for summary judgment, and otherwise denied the motion as academic.

It's an interesting case on timing.

Great case on 3211(a)(1)

Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 2011 NY Slip Op 02628 (App. Div., 2nd 2011)

Further, the Supreme Court properly denied that branch of Scottsdale's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint based on a defense founded upon documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; Fontanetta v John Doe 1, 73 AD3d 78, 83; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "In order for evidence to qualify as documentary,' it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d at 996, quoting Fontanetta v John Doe 1, 73 AD3d at 84-86). "Neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997). The letters from the attorney and claims service relied upon by Scottsdale do not constitute "documentary evidence" for the purposes of CPLR 3211(a)(1).

Westport Ins. Co. v Altertec Energy Conservation, LLC, 2011 NY Slip Op 02652 (App. Div., 2nd 2011)

In response to Energy Spectrum's establishment of its entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact or establish that additional discovery was necessary to oppose the motion. While the plaintiff claimed that discovery was necessary, it failed to submit any affidavits establishing that facts existed which were essential to justify opposition to the motion but were not in its possession in light of the fact that discovery had yet to be completed (see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636, 637). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Arpi v New York City Tr. Auth., 42 AD3d 478, 479; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 687). Consequently, the Supreme Court should have granted Energy Spectrum's motion for summary judgment dismissing the complaint insofar as asserted against it.

CPLR § 4017 and a missing witness

CPLR § 4017 Objections

Lerner v New York City Tr. Auth., 2011 NY Slip Op 02731 (App. Div. 1st, 2011)

Defendant's argument that the trial court erred in not permitting its counsel to cross-examine plaintiff's medical expert on an injury that was not pleaded in the bills of particulars is not preserved for appellate review (CPLR 4017). In any event, the trial court providently exercised its discretion in declining to permit defense counsel's line of questioning on the unpleaded injury especially since it precluded plaintiff's counsel from the same line of questioning on direct (see Salm v Moses, 13 NY3d 816, 817 [2009]).

The trial court did not err in giving the missing witness charge to the jury based on [*2]defendant's failure to call its medical expert. Plaintiff established her entitlement to the charge and defendant failed to show that its expert's testimony would have been cumulative to the testimony of plaintiff's expert (see O'Brien v Barretta, 1 AD3d 330 [2003]).

Some good old fashioned No-Fault

The big one is Langan, which I posted about last week, and there is a little chatter about a footnote if you are interested.

A big change is coming to no-fault paradise. While you are there checking for the changes click on the NYFAIR thing–you will find NYFAIR's update on the Insurance Industry's 2011 agenda.

The Appellate Term, First Department published a slew of interesting cases, indicating a very sharp division between how the First and Second Department address peer review defenses, among other things.

Devonshire Surgical Facility Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50511(U) (App. Term, 1st 2011)

Since the plaintiffs' motion was based upon an alleged "change in the law that would change the prior determination," it was, in actuality, a motion for renewal (CPLR 2221[e][2]; see Daniels v Millar El. Indus., Inc., 44 AD3d 895 [2007]). While there is no time limitation in which to make a motion for leave to renew (see CPLR 2221[e]; Ramos v City of New York, 61 AD3d 51, 54 [2009], app withdrawn 12 NY3d 922 [2009]; Luna v Port Auth. of NY & N.J., 21 AD3d 324, 326 [2005]), plaintiffs failed to demonstrate that their delay in seeking renewal for over four years was, in fact, due to a change in the law.

Contrary to plaintiffs' contention, appellate authority in their favor long preceded the motion court's decision in 2005 (see Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996], lv dismissed 89 NY2d 1030 [1997]; Quality Med. Healthcare, P.C., v Lumberman's Mut. Cas. Co., 2002 NY Slip Op 50098[U] [2002]), and the case cited by plaintiffs does not represent a change in decisional law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 n 5 [2007]). Moreover, plaintiffs failed to present a reasonable justification for their lengthy four-year delay in seeking renewal (see Levy v New York City Health & Hosps. Corp., 40 AD3d 359, 360 [2007], lv dismissed 9 NY3d 1001 [2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50512(U)(App. Term, 1st 2011)

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant's documentary submissions established its receipt of plaintiffs' claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).

In opposition to the plaintiffs' motion for summary judgment, defendant, which was precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense of lack of medical necessity (see Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743; Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to judgment in their favor.

This is the first time I've seen anyone try SJ on the complaint (CPLR 3213)

Devonshire Surgical Facility, Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50513(U)(App. Term, 1st 2011)

In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant issued timely denials of plaintiffs' claims (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by defendant to deny plaintiffs' claims is conclusory and fails to set forth sufficient facts to raise triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).

Devonshire Surgical Facility & Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co., 2011 NY Slip Op 50514(U)(App. Term, 1st 2011)

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to grant (1) summary judgment in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000 and (2) partial summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $7,835.29; and, as so modified, order affirmed without costs. The Clerk is directed to enter judgment accordingly (see Devonshire Surgical Facility v American Tr. Ins. Co., Cal. No. 11-012, decided simultaneously herewith).

Another SJ on the complaint.

Stephen Matrangalo, DC, PC v Allstate Ins. Co., 2011 NY Slip Op 50517(U)(App. Term, 1st 2011)

Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a "financial relationship" with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.

Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a "financial relationship" with the health care provider (Public Health Law § 238-a[1][a]). A "financial relationship" is defined in section 238(3) of the Public Health Law as "an ownership interest, investment interest or compensation arrangement." Critically, a "compensation arrangement" means "any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider" (Public Health Law § 238-a[5][a]), but does not include "payments for the rental or lease of office space" if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).

The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any "financial relationship" between plaintiff and the referring practitioner. No allegation is made that there was any "ownership interest" or "investment interest" between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant's limited submission failed to establish that there was any "compensation arrangement" in general or any "payments for the rental or lease of office space" in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

The Appellate Term, Second Department put out a few decisions as well.

A.M. Med. Servs., P.C. v Allstate Ins. Co., 2011 NY Slip Op 50436(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

In this action to recover assigned first-party no-fault benefits, the Civil Court (Diccia T. Pineda-Kirwan, J.), after a nonjury trial, awarded plaintiff "the sum of $10,196 plus statutory interest and attorney's fees." Thereafter, plaintiff filed a proposed judgment which included, among other things, the sum of $4,259.42 in attorney's fees.

On October 24, 2006, defendant filed a "Rejection of Proposed Judgment." In that rejection, defendant stated, insofar as is relevant to this appeal, that the award of attorney's fees should be limited to the sum of $850. On October 30, 2006, plaintiff received two checks from defendant, one in the amount of $27,173 (representing the principal plus interest) and one in the amount of $915 (representing attorney's fees of $850 plus filing fees), which plaintiff deposited. On December 4, 2006, a judgment was entered in favor of plaintiff, which included, among other things, the sum of $4,259.42 in attorney's fees. Thereafter, plaintiff submitted the judgment to the marshal's office for collection of the balance due thereunder, and the marshal sent a notice of execution to defendant. Upon receiving the notice, defendant moved, in effect, to vacate the notice of levy and sale of its property. By order entered July 21, 2009, the Civil Court (Maureen A. Healy, J.) granted defendant's motion. This appeal by plaintiff ensued.

A review of defendant's moving papers indicates that defendant sought to challenge so much of the judgment as had awarded plaintiff attorney's fees in the sum of $4,259.42. In LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (12 NY3d 217 [2009]), the Court of [*2]Appeals reversed an order of the Appellate Division, Third Department (46 AD3d 1290 [2007]), which had held that attorney's fees in a no-fault action should be calculated on a per-claim, not a per-assignor, basis. Giving effect to an opinion letter of the Superintendent of Insurance (Ops General Counsel NY Ins. Dept. No. 03-10-04 [Oct. 2003]) which interpreted the Insurance Department regulation (Insurance Department Regulations [11 NYCRR] § 65-4.6) establishing the amount of statutory attorney's fees (Insurance Law § 5106 [a]) to be awarded, the Court of Appeals held that attorney's fees in no-fault actions are to be calculated based on the aggregate of all of the bills submitted by a provider with respect to each insured in any action, up to a maximum of $850. Since the regulation and the opinion letter of the Superintendent of Insurance fixing the proper method for calculating the amount to be awarded as attorney's fees pursuant to the regulation were extant at the time the judgment in the case at bar was entered; the Appellate Division ruling had not yet been handed down; the issue of the proper calculation of the attorney's fees due plaintiff had not at that time been determined by the court; and the assessment of the statutory attorney's fees pursuant to the Insurance Department regulation was, in essence, a ministerial matter, the clerk's mistake in entering a judgment which included attorney's fees in the sum of $4,259.42 was properly subject to correction by the Civil Court pursuant to CPLR 5019 (see Kiker v Nassau County, 85 NY2d 879 [1995] cf. Bank of NY v Carlucci, 289 AD2d 349 [2001] [where attorney's fees are not statutorily fixed, an award of attorney's fees is a substantive part of a judgment not subject to correction pursuant to CPLR 5019 (a)]). Accordingly, the order is affirmed and the matter is remitted to the Civil Court for the entry of a corrected judgment awarding plaintiff attorney's fees in the sum of $850.

Alur Med. Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50438(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit submitted by defendant's claims examiner in opposition to plaintiff's motion and in support of defendant's cross motion was sufficient to establish that defendant's claim denial forms, which denied plaintiff's claims on the ground that the equipment provided was not medically necessary, were timely mailed in accordance with defendant's standard office practices and procedures (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 fact that there were handwritten notations on the claim denial forms did not [*2]affect their validity, and defendant was not, under these circumstances, required to provide a further explanation.

In addition, the affirmed peer review reports submitted by defendant's doctors were sufficient to establish a lack of medical necessity as they provided a factual basis and medical rationale for the doctors' determinations that there was a lack of medical necessity for the medical equipment at issue (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Contrary to plaintiff's assertions, the fact that the peer reviewers took into consideration medical records of other providers in formulating their opinions did not render the peer review reports inadmissible (see Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Since defendant established, prima facie, a lack of medical necessity for the equipment in question, the burden shifted to plaintiff to rebut defendant's prima facie showing (see Alur Med. Supply, Inc. v Clarendon Natl. Ins. Co., 27 Misc 3d 132[A], 2010 NY Slip Op 50700[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In opposition to defendant's cross motion, plaintiff submitted an affirmation from a doctor, which was sufficient to raise a triable issue of fact as to medical necessity (see Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; cf. A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, plaintiff's motion for summary judgment should have been denied, and we leave undisturbed the denial of defendant's cross motion.

Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 2011 NY Slip Op 50447(U) (App. Term, 2nd, 11th & 13 Jud. Dists. 2011)

The affidavit of defendant's litigation claims examiner established that defendant had timely mailed its request and follow-up request for verification to plaintiff (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; § 65-3.6 [b]) in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). The mere denial by plaintiff's medical biller of receipt of the verification requests did not overcome the presumption that proper mailing had occurred and that plaintiff had received the verification requests (see Schmiemann v State Farm Fire & Cas. Co., 13 AD3d 514 [2004]; Morales v Yaghoobian, 13 AD3d 424 [2004]; Truscello v Olympia Constr., 294 AD2d 350 [2002]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant's motion for [*2]summary judgment dismissing the complaint was properly granted, as defendant's time to pay or deny the claims had not begun to run (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]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

And there was a very interesting decision from a lower court.

Novacare Med. P.C. v Travelers Prop. Cas. Ins. Co., 2011 NY Slip Op 50500(U) (Dist Ct Nassau County, Second Dist)

In short, there appears to be no basis in the law, and no basis in logic, for accepting an affirmed peer review doctor's opinion, carte blanche, without scrutinizing the report's contents. As plaintiff's counsel cogently argues, "[e]very peer review report is different and requires individual scrutiny to determine whether or not in contains a [sufficient] factual basis and medical rationale." The Court agrees that such scrutiny is necessary and appropriate before it decides whether the burden should be shifted back to the plaintiff to submit contrary expert proof. If the plaintiff can demonstrate, through references to the medical records or otherwise, that the peer review doctor's opinion lacks a sufficient "factual basis" and/or "medical rationale" because it is conclusory, or because it fails to address essential factual issues or is based upon disputed or apparently incorrect facts, the defendant's motion should be denied regardless of whether plaintiff submits expert proof of its own.

In the instant matter, plaintiff's opposition points to such shortcomings in the peer review report. The peer review doctor's opinion rests, in large part, upon his factual assumption that the medical records failed to document "persistent radicular symptoms". However, as plaintiff's counsel demonstrates, this assertion is contradicted by the very medical records that defendant's expert reviewed.

Notably, the reports of claimant's treating physicians document, over a course of nearly a month, the persistence of radiating pain in claimant's neck and back. Several weeks after claimant's accident, his family physician, Dr. Grigoran, performed a physical examination which resulted in an assessment of "cervical radiculopothy." Upon Dr. Grigoran's referral to a neurologist, Dr. Kahn, claimant was examined again. Despite having undergone weeks of conservative treatment, claimant was still suffering from "frequent" neck and back pain, accompanied by "numbness". A cervical compression test was "positive" for "radicular symptomology." So, too, the results of a Spurling test were reported as "positive".

In light of theses symptoms and test results, Dr. Kahn's diagnosis included findings of "Cervical/Lumbar radiculopothy," and "Cervical radiculitis." His recommendations included the performance of EMG/NCS tests of the cervical/lumbar spine and upper/lower extremities "to elucidate the degree and location of compression on existing nerve roots and peripheral nerves." Not surprisingly, the electro-diagnostic test results revealed "an abnormal study, consistent with a left C5-6 and right L4-5 and L5-S1 radiculopothy."

When such test results are viewed together with claimant's well documented medical history, it is difficult to accept, at face value, the peer review doctor's factual assumption that he found no evidence of "persistent radicular symptoms" which may have justified Dr. Kahn's decision to recommend electro-diagnostic testing. Moreover, in the peer doctor's description of the accepted standards and protocols for electro-diagnostic testing, defendant's peer review doctor acknowledges that such tests may be medically appropriate for patients whose radicular symptoms "are persistent or unresponsive to initial conservative treatments."

In the face of the medical record evidence, cited above, and the absence of proof of a more definitive, clear cut standard for prescribing electro-diagnostic tests, plaintiff's opposition makes a convincing case that defendant's moving papers fail to meet its burden. To a significant extent, the peer review doctor's opinion rests upon conclusory assumptions and disputed or incorrect facts. Consequently, such an opinion, by itself, is insufficient to prove defendant's entitlement to judgment as a matter of law on its lack of medical necessity defense. In these circumstances, the absence of opposing expert proof from plaintiff is immaterial.

Langan. Kind of important.

State Farm Mut. Auto. Ins. Co. v Langan, 2011 NY Slip Op 02437 (Ct. App. 2011)

This appeal turns on whether decedent's injuries were caused by an accident [*4]within the meaning of the policy. Although the endorsements at issue do not define the term "accident," we have previously held that it is not to be "given a narrow, technical definition," but should be interpreted according to how it would be understood by the average person (Miller v Continental Ins. Co., 40 NY2d 675, 676 [1976]). We have determined that, for purposes of automobile insurance policies, the term "accident" means an event typically involving violence or the application of external force (see Michaels v City of Buffalo, 85 NY2d 754, 758 [1995]). In order to determine whether a particular event was "accidental, 'it is customary to look at the casualty from the point of view of the insured, to see whether or not . . . it was unexpected, unusual and unforeseen'" (Miller, 40 NY2d at 677 [citation omitted]). Although we have noted that the perspective of the injured victim should not be used to determine whether an accident has occurred, "'[b]ecause an injury is always fortuitous to a non-consenting victim'"
(Michaels, 85 NY2d at 759 [citation omitted]), here we have the situation where the victim is also the insured.

It is clear that, viewed from the insured's perspective, the occurrence was an unexpected or unintended event — and therefore an "accident" — even though Popadich admittedly intended to strike decedent with the vehicle. The language of the policy also suggests that this type of situation would be covered as it was an accident caused by the use of a motor vehicle that did not have an applicable insurance policy. Significantly, Insurance Department regulations require that an automobile owner's liability insurance policy contain a provision specifying "that assault and battery shall be deemed an accident unless committed by or at the direction of the insured" (11 NYCRR § 60-1.1 [f]). Although the provisions at issue here do not involve liability coverage, the regulation is relevant to the understanding of the extent of coverage provided by the endorsements.

The argument against requiring coverage, advanced by State Farm and relied upon by the Appellate Division, is based on the general principle that mandatory uninsured motorist benefits are meant to provide coverage that is coextensive with, and not greater than, that afforded by a standard liability policy. They rely on our statement that the purpose of mandatory UM benefits is "'to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident'" (Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 204 [2007], quoting Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]).

In support of its position, State Farm relies on McCarthy v Motor Veh. Acc. Indem. Corp. (16 AD2d 35 [4th Dept 1962], affd 12 NY2d 922 [1963]), a case where the plaintiff-victim was injured when the insured motorist committed an intentional assault against her using his vehicle. After the insurer denied coverage because the occurrence was not an [*5]accident within the meaning of the policy, plaintiff sought to recover under the policy's MVAIC endorsement — a statutorily required endorsement intended to afford coverage to a person injured by an uninsured or unidentified motorist, equal to that available to one injured by a motorist covered by an applicable liability policy (see McCarthy, 16 AD2d at 38). MVAIC is funded by assessments levied against all of the insurance companies licensed to conduct business in the state (see McCarthy, 16 AD2d at 39). McCarthy held that since an intentional assault committed by an insured motorist was not an accident subject to coverage under the standard liability policy, such an occurrence would likewise be excluded from coverage under the MVAIC endorsement (see McCarthy, 16 AD2d at 43). The Court also determined that allowing recovery under MVAIC would be inconsistent with the purpose for which the special fund had been established (see McCarthy, 16 AD2d at 44).

This case differs from McCarthy in two important respects. First, UM coverage, although required by statute, is part of the insured's own policy — a policy that the insured selected and for which he pays premiums. Benefits received through coverage under the UM endorsement do not come out of a State fund. Second, the insured is the victim in this case, not the tortfeasor, and the public policy against providing coverage for an insured's criminal acts is not implicated.

We hold that, consistent with the reasonable expectation of the insured under the policy and the stated purpose of the UM endorsement (to provide coverage against damage caused by uninsured motorists), the intentional assault of an innocent insured is an accident within the meaning of his or her own policy. The occurrence at issue was clearly an accident from the insured's point of view and Langan is entitled to benefits under the UM endorsement.

This result is also in keeping with the national trend toward allowing innocent insureds to recover uninsured motorist benefits under their own policies when they have been injured through the intentional conduct of another (see e.g. American Family Mut. Ins. Co. v Petersen, 679 NW2d 571 [Iowa 2004]; Shaw v City of Jersey City, 174 NJ 567, 811 A2d 404 [2002]; Wendell v State Farm Mut. Auto. Ins. Co., 293 Mont 140, 974 P2d 623 [1999]). Although the above decisions are not binding on this Court, we are persuaded that the view that has been adopted by these jurisdictions is the better one.

For many of the same reasons, Langan is entitled to coverage under the PIP endorsement and Coverage S. The average insured's understanding of the term "accident" is unlikely to vary from endorsement to endorsement within the same policy. The occurrence, from the insured's perspective, was certainly unexpected and unforeseen and should be considered an accident subject to coverage. Contrary to State Farm's argument, we perceive no danger that this result will frustrate efforts to fight fraud in the no-fault insurance system. Significantly, there is [*6]no allegation whatsoever of fraud in this case and it is patent that benefits should continue to be denied to those who intentionally cause their own injuries.

The argument that Langan is entitled to attorneys' fees was not addressed by the courts below and should be remitted to Supreme Court for its determination in the first instance.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting defendant judgment declaring in accordance with this opinion and remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed. The certified question should be answered in the negative.

There is a dissent from Smith.

Because I’m sick of posting cases

It might seem easy, but it is a time consuming pain in the ass to look through all the cases and get the relevant ones on here. Without my computer, keyboard, and mouse set-up, I probably wouldn't even bother with this. The screen is big enough so I can have two sites up at once, the keyboard is ergomic, and the mouse has enough programmable buttons to make everything happen (copy, paste, push everything to the side, fast scroll, etc.). The mouse is the key in all this. I've tried others but I always come back to Logitech's MX1100 (you can get it cheaper elsewhere–they may have replaced it with a something different). If you aren't a tech person, this means nothing to you, but if you are, and you are anything like me, you bring your own keyboard and mouse to the office, so rejoice in the fact that there is someone weirder than you out there. Add some Skitch and Dropbox and it's a pretty good setup. Wait. Can't forget about the Undo Closed Tabs and After The Deadline extensions for Chrome.

I haven't been reading much lately because my job has required more of my attention than usual, so I'm still reading the books I was since my last post on books and such. I picked up the Grammar Girl book and I've been reading it here and there, but that's about it.

What else. What else.

I've been sucked in to watching Mad Men and Fringe. I bought some notebooks that I will probably never write in. There is one notebook that has turned out to be pretty useful though: the action journal. If you haven't seen this video of a kid standing up to his bully, you should. As it turns out the quality of legal writing really doesn't mean much at all. I want this. But watching this mades me think that it really isn't all that important. At least someone is rooting for Barry Bonds. Rhetoric. Best blog on legal writing right here. Perilous headnotes. Faster, better, and.

And that's it. You know its time to stop when you don't feel like writing full sentences.

The No-Fault (most of March 2011)

I just realized that I haven't posted a no-fault case in over a month.

Appellate Division, Second Department

Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 2011 NY Slip Op 02379 (App. Div., 2nd 2011)

The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against the defendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefits under a contract of insurance entered into between the plaintiff's assignee and the defendant. The defendant thereafter moved to modify the judgment pursuant to CPLR 5015(a), belatedly asserting that the judgment exceeded the coverage limit of the subject policy due, in part, to payments previously made under the policy to other health care providers. In the order appealed from, the Supreme Court properly denied the defendant's motion to modify the judgment.

The defendant failed to specify on which of the five subdivisions of CPLR 5015(a) its motion was based, much less establish its entitlement to relief on any of the enumerated grounds. To the extent that the defendant sought modification pursuant to CPLR 5015(a)(2) based upon "newly-discovered evidence," the defendant failed to demonstrate that the evidence offered in support of the motion, i.e., an affidavit of an employee setting forth the policy limits and the amount of benefits paid for alleged prior claims, "was not available at the time of the prejudgment proceedings" (Jonas v Jonas, 4 AD3d 336, 336; see Sicurelli v Sicurelli, 73 AD3d 735).

Moreover, although courts possess inherent discretionary power to grant relief from a judgment or order in the interest of justice, this "extraordinary relief" is not appropriate under the circumstances presented (Jakobleff v Jakobleff, 108 AD2d 725, 726-727; see Selinger v Selinger, 250 AD2d 752). The plaintiff previously moved for summary judgment on the complaint, seeking a certain amount of benefits, in accordance with the no-fault billing statement sent to the defendant, and this Court reversed the denial of that motion and granted the plaintiff's motion for summary judgment on the complaint (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045). Only after the plaintiff obtained, upon this Court's order, a judgment from the Clerk of the Supreme Court, Nassau County, representing, inter alia, the amount of benefits sought in the complaint, did the defendant raise the issue of exhaustion of the policy limits. Under these circumstances, modification of the judgment in the interest of justice is not warranted.

Manuel v New York City Tr. Auth., 2011 NY Slip Op 02362 (App. Div., 2nd 2011) ("Alighting")

For the no-fault statute to apply, the vehicle must be a proximate cause of the injury (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215). To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643). Also, the injury must result from the intrinsic nature of the motor vehicle as such, and the use of the vehicle must do more than merely contribute to the condition which produced it (see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597; Republic Long Is., Inc. v Andrew J. Vanacore, Inc., 29 AD3d 665; Duroseau v Town of Hempstead, 117 AD2d 579).

Here, the negligent operation of a motor vehicle was the proximate cause of the plaintiff's injuries. The plaintiff's theory of liability is that her injuries resulted from the manner in which the bus driver operated the bus, specifically his positioning of the bus next to a hole in the street when he pulled over at the bus stop. Moreover, this is not a case in which the plaintiff was completely outside of the vehicle when the accident occurred (see Walton v Lumbermens Mut. Cas. Co., 88 NY2d at 215; Santo v Government Empls. Ins. Co., 31 AD3d 525; Elite Ambulette Corp. v All City Ins. Co., 293 AD2d 643), or in which the plaintiff was the victim of an intentional tort (see Lancer Ins. Co. v Peterson, 175 AD2d 239; Locascio v Atlantic Mut. Ins. Co., 127 AD2d 746; Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Gholson], 71 AD2d 1004).

This case is analogous to Hill v Metropolitan Suburban Bus Auth. (157 AD2d 93). In Hill, the plaintiff fell while descending the stairs of the rear exit of a bus, when she tripped on a nail or tile on the bus staircase and fell into a hole in the sidewalk. This Court agreed with the defendant's assertion that the no-fault law applied, because the accident arose from the use or operation of a bus (see Matter of Celona v Royal Globe Ins. Co., (85 AD2d 635).

NYCTA was not estopped from arguing that the accident arose from the use or operation of the insured vehicle, as NYCTA never did anything to lead the plaintiff to believe that it would not argue that the accident arose from the use or operation of a motor vehicle (see Walsh v Prudential Ins. Co. of Amer., 101 AD2d 988). NYCTA stated at trial that first-party benefits had been denied because it had no record of the accident.

Appellate Division, FIrst Department

Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 2011 NY Slip Op 01948 (App. Div., 1st 2011)

The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants' assignors' failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). The failure to appear for IMEs requested by the insurer "when, and as often as, [it] may reasonably require" (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Fogel, 35 AD3d at 721-22).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).

There is likewise no merit to defendants' contention that the IME request notices were invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time-frames set forth in the No-Fault implementing regulations, and that defendants' assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 [2007]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).

Defendants' argument that plaintiff was required to demonstrate that the assignors' failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]), applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).

I think this is an absolutely terrible decision. The language of the decision permits an insurance policty to be voided ab initio as a result of the actions of someone other than the insured. So if the insured has an accident and a passenger gets hurt, but does not attend an IME, the insured's policy goes bye bye. It also expands the scope of a coverage defense beyond the Court of Appeal's definition. And the decision is in conflict with longstanding law from the Second Department. Hopefully the Court of Appeals will take this one.

For a much longer discussion of this decision and what it spells for the future of no-fault, head over to No-Fault Defender where there are 60 comments and counting.

Appellate Term, Second Department

The Appellate Term denied leave for Belt Parkway Imaging, P.C. v State Wide Ins. Co., 2010 NY Slip Op 52229(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Gateway Med., P.C. v Progressive Ins. Co., 2011 NY Slip Op 50336(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2011).

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint for lack of personal jurisdiction since the purported service of the summons and complaint under CPLR 312-a was never completed, as defendant never signed and returned an acknowledgment of service. Plaintiff opposed the motion, arguing that defendant should be compelled to sign the acknowledgment or, in the alternative, that plaintiff should be permitted to serve the summons and complaint by another manner. The Civil Court denied defendant's motion, and this appeal ensued.

The record reveals that an acknowledgment of receipt was never signed by defendant and returned to plaintiff. "If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner" (Dominguez v Stimpson Mfg. Corp., 207 AD2d 375 [1994]; see also Patterson v Balaquiot, 188 AD2d 275 [1992]). Plaintiffs did not effect service in another manner. Accordingly, the service was defective and defendant's motion to dismiss the complaint should have been granted.

JT had an interesting take on the case.

W & Z Acupuncture, P.C. v Allstate Ins. Co., 2010 NY Slip Op 52385(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Subsequent to that [discovery] order, the Civil Court issued an order dismissing the action since plaintiff failed to produce the court-ordered discovery. The dismissal of the action rendered the instant appeal academic (see Livny v Rotella, 305 AD2d 377 [2003]; Delta Diagnostic Radiology, P.C. v Allstate Ins. Co., 15 Misc 3d 131[A], 2007 NY Slip Op 50673[U] [App Term, 2d & 11th Jud Dists 2007]; Fair Price Med. Supply Corp. v ELRAC Inc., 13 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2006]).

The bracketed word is mine.

Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 50315(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

The billing records submitted by plaintiff in support of its motion for summary judgment do not assert that the supplies at issue had been delivered to plaintiff's assignor. Nor did plaintiff's affiant state that he had delivered the supplies to plaintiff's assignor. Indeed, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or to (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff's moving papers failed to demonstrate its prima facie entitlement to summary judgment.

We note that the holding in Fair Price Med. Supply Corp. v Travelers Indem. Co. (10 NY3d 556 [2008]) does not impact our decision in this case because, in that case, the issue of whether the plaintiff had made out a prima facie case was not dealt with by either the Appellate Division (42 AD3d 277 [2007]) or the Court of Appeals (10 NY3d 556). The Court of Appeals held that a defense that the billed-for services or supplies were never provided is precluded if the insurer fails to timely deny the claim, and both courts limited their discussions to the preclusion issue. Here, we are asked to consider whether plaintiff's moving papers made out a prima facie case in the first instance so as to even shift the burden to defendant to raise a non-precluded defense (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and we conclude that they did not.

The Court distinguishes Fair Price in a way that renders the Court of Appeals' decision meaningless.

Quality Health Prods. v Country-Wide Ins. Co., 2011 NY Slip Op 50328(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Plaintiff established that defendant did not pay plaintiff's claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant's denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff's papers. Moreover, plaintiff's affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant's denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168). As a result, we need not consider the sufficiency of defendant's paper's submitted in opposition to the motion (see Westchester Med. Ctr., 78 AD3d 1168). Accordingly, the order denying plaintiff's motion for summary judgment is affirmed, albeit on a different ground.

Westchester doesn't quite say what they cite it to say.

Exoto, Inc. v Progressive Ins. Co., 2011 NY Slip Op 50329(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

On appeal, plaintiff asserts that it provided defendant with the NF-3 form it requested as additional verification. Plaintiff did not subsequently respond to defendant's follow-up request seeking the same verification because defendant failed to clearly state why the previously submitted NF-3 form was insufficient. Consequently, plaintiff argues, it is not in default in providing the requested verification.

A review of the record indicates that each of defendant's requests for NF-3 forms states, in pertinent part, that "Every box must be fully completed, blank boxes will not be accepted." It is uncontroverted that the box on the NF-3 form plaintiff provided in response to defendant's initial verification request – – wherein the provider's signature should be placed – – was left blank. Therefore, when defendant issued its follow-up request which, again, informed plaintiff that "Every box must be fully completed, blank boxes will not be accepted," defendant clearly apprised plaintiff of why the submitted NF-3 form did not satisfy its request for verification.

Since plaintiff did not demonstrate that it had provided defendant with the requested verification prior to the commencement of the instant action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Consequently, the Civil Court properly granted defendant's motion for summary judgment dismissing the complaint as premature and denied plaintiff's cross motion for summary judgment. Accordingly, the judgment is affirmed.

If you knew the facts of this case you would cringe after reading this decision.

CPLR R. 2219 Time and form of order.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50331(U) (App. Term, 2nd 11th & 13th Jud. Dists. 2010).

Contrary to the determination of the Civil Court, MVAIC defaulted because it failed to submit written opposition to plaintiff's motion for summary judgment (see CPLR 2219 [a]; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Millennium Med. Instruments v MVAIC, 27 Misc 3d 127[A], 2010 NY Slip Op 50583[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Accordingly, MVAIC's motion properly sought to vacate the default judgment entered against it.

In support of its motion, under the circumstances presented, MVAIC established both a reasonable excuse for its default and the existence of a potentially meritorious defense. Accordingly, MVAIC's motion to vacate the default judgment entered against it should have been granted (see Strauss v R & K Envtl., 66 AD3d 766 [2009]; New York Univ. Hosp. Rusk Inst. v Illinois Natl. Ins. Co., 31 AD3d 511 [2006]; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]).

Go here for some background on this appeal.

Appellate Term, First Department

Now take a look at how the First Department approaches and MVAIC appeal. Same attorneys.

Omega Diagnostic Imaging, P.C. v MVAIC, 2011 NY Slip Op 50432(U) (App. Term, 1st 2011)

[A]ffirmed, with $10 costs.

In this action by plaintiff-provider to recover assigned first-party no-fault benefits, defendant MVAIC's motion for summary judgment dismissing the claim based on plaintiff's failure to establish that its assignor qualified for MVAIC coverage, was properly denied (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (___AD3d ___, 2011 NY Slip Op 00176 [2011]). Nor has defendant established that plaintiff was required to "exhaust its remedies" prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] [2010]). Defendant's argument, raised for the first time on appeal, that it is entitled to dismissal of the action as premature based on outstanding verification requests is without merit (id.).

Kind of a big deal (below). I forgot whether I posted this before and I don't feel like checking.

Pomona Med. Diagnostics, P.C. v GEICO Ins. Co., 30 Misc 3d 141(A) (App. Term, 1st 2011)

In opposition to plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; Central Nassau Diagnostic Imaging, P.C. v GEICO, 28 Misc 3d 34, 36 [2010]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]), the report of defendant's peer review doctor, which relied on the assignor's medical records (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10, 11 [2006]; see also Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [2010]), raised a triable issue of fact as to whether the services provided by plaintiff were medically necessary (see Krishna v Liberty Mut. Ins. Co., 24 Misc 3d 128[A], 2009 NY Slip Op 51312[U] [2009]). Contrary to defendant's contention, however, its "submissions did not conclusively establish as a matter of law its defense of lack of medical necessity," and its cross motion was properly denied (A Plus Med., P.C. v Mercury Cas. Co., 23 Misc 3d 136[A], 2009 NY Slip Op 50824[U] [2009]).

Combine this decision with Abdalla v Mazl Taxi, Inc., 2010 NY Slip Op 06071 (App. Div., 2nd, 2010), Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010), and you have something interesting.

5015 generally

CPLR R. 5015

Giraldo v Weingarten, 2011 NY Slip Op 01433 (App. Div., 2nd 2011)

In support of that branch of the motion of the defendant Koytcho Koev (hereinafter the defendant) which was pursuant to CPLR 5015(a)(1) to vacate the judgment entered upon an order granting the plaintiffs' unopposed motion for leave to enter a judgment upon his failure to appear or answer the complaint, the defendant failed to demonstrate a reasonable excuse for his default in opposing the plaintiffs' motion and a potentially meritorious defense to the action (see NY SMS Waterproofing, Inc. v Congregation Machne Chaim, Inc.,AD3d, 2011 NY Slip Op 00661 [2d Dept 2011]; Bazoyah v Herschitz, 79 AD3d 1081; Campbell-Jarvis v Alves, 68 AD3d 701). Furthermore, the defendant did not offer any explanation for the six-month delay in moving to vacate the default judgment after he received it in the mail (see Alterbaum v Shubert Org., Inc., AD3d, 2011 NY Slip Op 00339 [2d Dept 2011]; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400).

In support of that branch of his motion which was pursuant to CPLR 317 to vacate the default judgment, the defendant failed to demonstrate that he did not personally receive notice of the summons in time to defend the action (see Thas v Dayrich Trading, Inc., 78 AD3d 1163; Commissioners of State Ins. Fund v Nobre, Inc., 29 AD3d 511; General Motors Acceptance Corp. [*2]v Grade A Auto Body, Inc., 21 AD3d 447).

Just a little 3212, including (f).

Gardner v Cason, Inc., 2011 NY Slip Op 01971 (App. Div., 2nd 2011)

It was premature to award summary judgment at this stage of the case. "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793). The plaintiff and the defendant Grumbly submitted, among other things, affidavits containing discrepancies pertaining to the circumstances of the accident, including as to the decedent's culpability. Furthermore, no depositions have been conducted, including any depositions of key eyewitnesses identified in the police accident report. Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle, 72 AD3d 1025; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578; Martinez v Ashley Apts. Co., LLC, 44 AD3d 830; Tyme v City of New York, 22 AD3d 571; see generally CPLR 3212[f]).

Carden v City of New York, 2011 NY Slip Op 01787 (App. Div., 2nd 2011)

In support of their motion for summary judgment, the defendants Hallen Construction Co., Inc. (hereinafter Hallen), and Keyspan Energy Delivery N.Y.C. (hereinafter Keyspan) submitted evidence sufficient to establish, prima facie, that they did not create the alleged defect in the roadway which caused the plaintiff driver to sustain injuries (see Courtright v Orange and Rockland Utils., Inc., 76 AD3d 501; Garcia v City of New York, 53 AD3d 644; Rubina v City of New York, 51 AD3d 761). In opposition, the plaintiffs submitted evidence sufficient to raise triable issues of fact as to the exact situs of the defect and whether Hallen and Kesypan created the alleged defect. Generally, an opposing party must make a showing of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557). "Under certain circumstances [o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment'" (Guzman v Strab Constr. Corp., 228 AD2d 645, 646 quoting Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see Phillips v Kantor & Co., 31 NY2d 307). Here, the accident report from the New York City Sanitation Department, which was produced during discovery and had sufficient indicia of reliability, raised a triable issue of fact as to whether the alleged defect was located within the area where Keyspan and Hallen performed their work (see Asare v Ramirez, 5 AD3d 193; Guzman v Strab Constr. Corp., 228 AD2d 645).

Heath v Liberato, 2011 NY Slip Op 01803 (App. Div., 2nd 2011)

In opposition, the defendant failed to raise a triable issue of fact. The defendant's opposition merely raised "feigned" issues of fact, which are insufficient to defeat a motion for summary judgment (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257; see Miller v City of New York, 214 AD2d 657; Garvin v Rosenberg, 204 AD2d 388). The defendant also failed to demonstrate that further discovery was warranted (see Benedikt v Certified Lbr. Corp., 60 AD3d 798; Lopez v WS Distrib., Inc., 34 AD3d 759).

Anastasio v Berry Complex, LLC, 2011 NY Slip Op 01778 (App. Div., 2nd 2011)

None of the defendants submitted evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Contrary to York's contention, a triable issue of fact exists as to whether it launched an instrument of harm by allegedly negligently erecting the sidewalk shed (see Manicone v City of New York, 75 AD3d 535; Ragone v Spring Scaffolding, Inc., 46 AD3d 652; Phillips v Seril, 209 AD2d 496). With respect to Design Built, triable issues of fact exist as to whether it exercised control over the construction site, as the general contractor, and whether it created or had actual or constructive notice of the alleged hazardous conditions (see Mancone v City of New York, 75 AD3d 535). Berry failed to establish, prima facie, that it lacked constructive notice of the alleged ice condition on the sidewalk abutting its property (see Martinez v Khaimov, 74 AD3d 1031; see generally Administrative Code of the City of New York 7-210). Since none of the parties satisfied their prima facie burden as the movants, we need not review the sufficiency of the plaintiff's opposition papers (see Totten v Cumberland Farms, Inc., 57 AD3d 653; Joachim v 1824 Church Ave., Inc., 12 AD3d 409).

AGFA Photo USA Corp. v Chromazone, Inc., 2011 NY Slip Op 01517 (App. Div., 1st 2011)

Defendants' argument that plaintiff's second motion for summary judgment should have been treated as a motion to renew, is improperly raised for the first time on appeal (see Callisto Pharm., Inc. v Picker, 74 AD3d 545 [2010]). Were we to review this argument, we would find that the court's treatment of the motion was entirely appropriate. When the court denied plaintiff's initial motion for summary judgment, it did so "without prejudice to another motion for summary judgment" with the submission of additional evidence (see CPLR 3212[f]).

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claims for breach of the equipment lease agreement and service maintenance agreement by submitting the subject agreements, the agreement assigning AFGA Corporation's rights to plaintiff and evidence of nonpayment in the form of the demand notices (see Advanta Leasing Servs. v Laurel Way Spur Petroleum Corp., 11 AD3d 571 [2004]). In opposition, defendants failed to raise a triable issue of fact. Contrary to defendants' argument that plaintiff failed to meet its obligations under the service maintenance agreement, any alleged failure by plaintiff to provide parts and services had no bearing on defendants' breach under the lease agreement. Moreover, the record establishes that plaintiff indeed continued servicing the equipment during the relevant time period.

Plaintiff also established its entitlement to summary judgment on its conversion cause of action. Plaintiff submitted evidence demonstrating that the individual defendant exercised unauthorized dominion and control over the equipment by making unapproved alterations to it, by removing the equipment from the installation site without notice or consent and by relocating the equipment to his new business (see Meese v Miller, 79 AD2d 237, 242 [1981] ["(c)onversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessory right of another in the property"]). Defendants' opposition failed to raise a triable issue of fact. The affidavit from the individual defendant conflicted with his deposition testimony and appears tailored to avoid the consequences of his earlier testimony (see e.g. Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [2000]).