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CPLR § 3213 and a problem with service

CPLR § 3213 Motion for summary judgment in lieu of complaint

Engel v Boymelgreen, 2011 NY Slip Op 00348 (App. Div., 2nd 2011)

The appeal from the amended order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the amended order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"Generally, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Washington Mut. Bank v Holt, 71 AD3d 670, 670; see Associates First Capital Corp. v Wiggins, 75 AD3d 614; City of New York v Miller, 72 AD3d 726, 727; Scarano v Scarano, 63 AD3d 716, 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing" (City of New York v Miller, 72 AD3d at 727; see Associates First Capital Corp. v Wiggins, 75 AD3d 614;Washington Mut. Bank v Holt, 71 AD3d 670; Scarano [*2]v Scarano, 63 AD3d 716; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343).

Here, the plaintiff's process server swore that he served the summons and motion papers upon the defendant by affixing the papers to the door of a property, which the plaintiff alleged was the defendant's dwelling place or usual place of abode, and then mailing a copy to that same address. The defendant swore that he did not reside at that address and provided an affidavit from the resident of that address which provided, in detail, that she lived at that address with her own family and had advised the plaintiff's process server that the defendant did not reside there. Thus, the defendant established that he was entitled to a hearing on the issue of service, and the Supreme Court erred in making a determination on the plaintiff's motion for summary judgment in lieu of complaint prior to conducting such a hearing (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894, 894; Kingsland Group v Pose, 296 AD2d 440). Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing at which the plaintiff will have to establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588; Zion v Peters, 50 AD3d 894).

Moreover, contrary to the plaintiff's contention, a letter dated July 8, 2008, allegedly sent to the plaintiff by the defendant—the document upon which the plaintiff moved for summary judgment in lieu of complaint—was a request for a loan and not an instrument for the payment of money only (see Weissman v Sinorm Deli, 88 NY2d 437, 444; Ro & Ke, Inc. v Stevens, 61 AD3d 953; Comforce Telecom, Inc. v Spears Holding Co., Inc., 42 AD3d 557; Stallone v Rostek, 27 AD3d 449; Gregorio v Gregorio, 234 AD2d 512). The Supreme Court erred in awarding judgment in favor of the plaintiff pursuant to CPLR 3213, as the letter did not contain an unconditional promise by the defendant to pay the plaintiff a sum certain by a set date (see Weissman v Sinorm Deli, 88 NY2d 437). Therefore, in the event that the Supreme Court, Kings County, determines, after a hearing, that it has personal jurisdiction over the defendant, the action is to proceed as a plenary action, with the motion and answering papers deemed to be the complaint and answer, respectively (see Lugli v Johnston, 78 AD3d 1133).

Interesting Jurisdiction Type Stuff

CPLR R. 3211

GS Plasticos Limitada v Bureau Veritas, 2011 NY Slip Op 00272 (App. Div., 1st 2011)

In this action for tortious interference with contractual relations, plaintiff, a Brazilian company authorized to do business in New York, alleges that it lost a contract with a third party due to the issuance by defendant Bureau Veritas Consumer Products Services (BVCPS) of reports falsely concluding that plaintiff's products contained excessive amounts of arsenic. BVCPS, an indirect subsidiary of defendant Bureau Veritas (BV), provides testing and inspection services for consumer products, with testing facilities located in Buffalo, New York. BV is a French company that relinquished its authority to do business in New York before the commencement of this action.

As the motion court found, BV's surrender of its authority to do business in New York does not insulate it from the court's assertion of personal jurisdiction over it, because the liability in this case was "incurred by [BV] within this state before the filing of the certificate of surrender" (Business Corporation Law [BCL] § 1310[a][5]; see Antonana v Ore S.S. Corp., 144 F Supp 486, 491 [SD NY 1956]; Munn v Security Controls, 23 AD2d 813 [1965]). Contrary to BV's argument, neither the language of the statute nor the case law limits relief to New York residents (see Carlton Props. v 328 Props., 208 Misc 776, 778-779 [1955]; Antonana, 144 F Supp at 491; Green v Clark, 173 F Supp 233, 236-237 [SD NY 1959]).

However, the court erred in finding that it had jurisdiction pursuant to BCL § 1314(b)(3), based on the tortious conduct's having arisen out of the testing services performed in New York. For purposes of BCL § 1314(b)(3), the inquiry is not where the tortious conduct occurred but [*2]"[w]here the cause of action arose" (see id.; see also Gonzalez v Industrial Bank [of Cuba], 12 NY2d 33 [1962]; Hibernia Natl. Bank v Lacombe, 84 NY 367, 384 [1881]). Plaintiff's claim is one for interference with contractual relations. Although the faulty testing that led to the loss of the contract occurred in New York, plaintiff had no cause of action until the contract was actually lost, i.e., until it was cancelled, and that cancellation occurred in Brazil.

Nor can plaintiff establish jurisdiction pursuant to BCL § 1314(b)(3) or (b)(4), predicating jurisdiction under either of these subdivisions on BVCPS's activities as an agent or mere department of BV. The record does not support a finding that BVCPS's activities are "so complete that [it] is, in fact, merely a department of [BV]," i.e., it was "performing the same activities (i.e., doing all the business') that [BV] would have performed had it been doing or transacting business in New York" (see Porter v LSB Indus., 192 AD2d 205, 213, 214 [1993]).

Res Judicata

Zito v Fischbein Badillo Wagner Harding, 2011 NY Slip Op 00285 (App. Div., 1st 2011)

Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]).

The fifth cause of action, alleging a violation of Judiciary Law § 487, is also barred by res judicata since it is predicated upon the same conduct as underlies the legal malpractice claim, namely, defendant's "prior representation of" plaintiff (see Izko Sportswear Co., Inc. v Flaum, 63 AD3d 687, 688 [2009], lv denied
13 NY3d 708 [2009]; Jericho Group Ltd. v Midtown Dev., L.P., 67 AD3d 431, 432 [2009], lv denied 14 NY3d 712 [2010]).

Defaultastic CPLR 5015

CPLR R. 5015

CPLR R. 3211(e)

CPLR § 321 Attorneys
(c) Death, removal or disability of attorney

Alterbaum v Shubert Org., Inc., 2011 NY Slip Op 00339 (App. Div., 2nd 2011)

To vacate an order entered upon their default in opposing the plaintiff's motion for leave to enter a default judgment, the defendants were required to demonstrate, inter alia, a reasonable excuse for their default in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Abdul v Hirschfield, 71 AD3d 707; Bekker v Fleischman, 35 AD3d 334; Epps v LaSalle Bus, 271 AD2d 400). The defendants failed to proffer any explanation for their failure to oppose either of the plaintiff's two motions for leave to enter judgment upon their default, one in October 2009, and the second in December 2009, both of which were served upon them (see Epps v LaSalle Bus, 271 AD2d 400). The defendants' claim, which was improperly presented for the first time in a reply affidavit, that their executive assistant did not recall receiving the two motions, did not overcome the presumption of proper mailing created by the affidavits of service (see Kihl v Pfeffer, 94 NY2d 118, 122; Engel v Lichterman, 62 NY2d 943; Mei Yun Li v Qing He Xu, 38 AD3d 731; Terlizzese v Robinson's Custom Serv., Inc., 25 AD3d 547, 548). Furthermore, the defendants did not offer a reasonable explanation for their inaction between December 2009 and May 2010 when they moved to vacate the order dated March 4, 2010. Under the circumstances, the defendants' pattern of willful neglect and default should not have been excused (see Bekker v Fleischman, 35 AD3d 334; Edwards v Feliz, 28 AD3d 512, 513; Gainey v Anorzej, 25 AD3d 650, 651; Roussodimou v Zafiriadis, 238 AD2d 568, 568). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the defendants sufficiently [*2]demonstrated the existence of a potentially meritorious defense (see Abdul v Hirschfield, 71 AD3d at 709; Segovia v Delcon Constr. Corp., 43 AD3d 1143, 1144; American Shoring, Inc. v D.C.A. Constr., Ltd., 15 AD3d 431).

Contrary to the defendants' contention, the plaintiff's affidavit set forth enough facts to enable the Supreme Court to determine that the plaintiff alleged a viable cause of action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Neuman v Zurich N. Am., 36 AD3d 601, 602).

Deutsche Bank Natl. Trust Co. v Rudman, 2011 NY Slip Op 00346 (App. Div., 2nd 2011)

In this action to foreclose a mortgage, the appellants did not answer the complaint until more than eight weeks after their time to do so expired and, even after their untimely answer was immediately rejected, they took no action to remedy their default until many months later. A defendant who seeks to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and show a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889). Here, the appellants failed to offer any excuse for their failure to timely answer the complaint (id.; see Emigrant Mtge. Co., Inc. v Teel, 74 AD3d 1275, 1276). Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence of a potentially meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d at 889).

Accordingly, the Supreme Court properly denied the appellants' cross motion, inter alia, to vacate their default in answering and extend their time to answer, and properly granted the plaintiff's motion for leave to enter a judgment of foreclosure and sale against the appellants.

Stamulis v Mordred Realty Corp., 2011 NY Slip Op 00374 (App. Div., 2nd 2011)

In order to prevail on a motion to vacate a default judgment, a defendant is required to demonstrate both a reasonable excuse for its default and a potentially meritorious defense (see Fekete v Camp Skwere, 16 AD3d 544, 545; Amato v Fast Repair, Inc., 15 AD3d 429, 430; Costanza v Gold, 12 AD3d 551, 552; Czarnik v Urban, 10 AD3d 627). Here, the confusion surrounding the withdrawal of defense counsel from the case and the plaintiff's apparent failure to comply with CPLR 321(c) provided a sufficient excuse for the defaults. In addition, the appellants established the existence of potentially meritorious defenses based on a close reading of the subject lease. Therefore, the Supreme Court should have denied the plaintiff's motion and granted the appellants' cross motion.

Matter of Brodsky v New York City Campaign Fin. Bd., 2011 NY Slip Op 00256 (App. Div., 1st 2011)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 16, 2009, which, to the extent appealed from, granted respondent's motion to compel petitioner Meryl Brodsky to completely and accurately respond to an information subpoena and questionnaire (CPLR 5224), and denied said petitioner's cross motion to quash the subpoena and vacate the underlying judgment, same court and Justice, entered August 31, 2009, unanimously affirmed, without costs.

Petitioner waived her objection to Supreme Court's jurisdiction over her by failing to raise it in her opposition to respondent's motion (see CPLR 3211[e]; Matter of United Servs. Auto. Assn. v Kungel, 72 AD3d 517, 518 [2010]).

Petitioner has not been prejudiced by any technical defects in the judgment in connection with which the information subpoena was served.

I’m having an existential crisis

In the meantime, here are the recent no-fault decisions.

Appellate Term 1st

Natural Acupuncture Health, P.C. v Praetorian Ins. Co., 2011 NY Slip Op 50040(U) (App. Term, 1st Dept)

Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff Spring Medical, P.C.'s claims for assigned first-party no-fault benefits. Defendant established through the affidavit of its claims examiner and excerpts from the Workers' Compensation Medical Fee Schedule, which may be judicially noticed by this Court (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 21 [2009]), that the fees Spring charged for the medical services it rendered to the assignor exceeded the relevant rates set forth in the fee schedule. In opposition, Spring failed to raise a triable issue regarding [*2]defendant's interpretation of the fee schedule or calculation of the applicable fees. Therefore, defendant's motion for summary judgment dismissing Spring's claims — which sought the difference between the amount Spring charged for the services and payments defendant made to Spring pursuant to the fee schedule — should have been granted (see Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [2009]).

Defendant's motion for summary judgment dismissing the claim of plaintiff Right Aid Diagnostic Medicine, P.C. based on lack of medical necessity was properly denied, since defendant did not demonstrate as a matter of law that it timely denied the claim within the statutory 30-day period (see Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]) or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). We note in this connection that the reply affirmation submitted by Right Aid could not be considered for the purpose of showing a prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006]).

Pomona Med. Diagnostic v MVAIC, 2011 NY Slip Op 50042(U) (App. Term, 1st Dept.)

Defendant's motion for summary judgment dismissing the complaint was properly denied, albeit for reasons other than those stated by Civil Court. In support of its contention that plaintiff's assignor was not a "qualified" person entitled to payment of first-party no-fault benefits by defendant (see Insurance Law § 5221[b]), defendant relied on inadmissible hearsay — an uncertified computer printout of an "insurance activity expansion" (see Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]). In any event, the expansion does not establish that there was a policy of insurance in effect at the time of the accident (see generally id.; cf. Matter of Commercial Union Ins. Co. (Kim), 268 AD2d 296 [2000], lv denied 95 NY2d 762 [2000]). Defendant's submissions are also insufficient to establish as a matter of law that plaintiff's assignor did not comply with the notice of claim requirements (see Insurance Law § 5208).

Appellate Term 2nd

Allstate Social Work & Psychological Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21010 (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

It is uncontested that defendant established that the IME requests were timely mailed in accordance with HVMC's standard office practices and procedures and that the assignors failed to appear for the IMEs (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). However, plaintiff contends that defendant's insurance policy, which incorporates the language of the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), requires that IMEs of eligible injured persons (EIPs) be conducted only by physicians, to the exclusion of other healthcare providers, even when the health services for which first-party no-fault benefits are sought were provided by non-physicians. In rejecting [*2]plaintiff's contention, the Civil Court relied on an opinion letter of the State Insurance Department, dated March 12, 2004 (see 2004 Ops Ins Dept No. 04-03-10). We find that the Insurance Department Regulations (11 NYCRR part 65), read as a whole, in accordance with the rules of construction, and the State Insurance Department's opinion letter, to which we accord great deference, lead to the conclusion that the requirement that an EIP submit to medical examinations, as set forth in the mandatory personal injury protection endorsement (Insurance Department Regulations [11 NYCRR] § 65-1.1), should not be limited strictly to examinations by physicians. Thus, in the instant matter, we find that the psychologist retained by defendant could properly have conducted the IMEs of plaintiff's assignors, who had received psychological treatment (see generally Stephen Fogel Psychological, P.C., 35 AD3d at 722; Meridian Acupuncture Care v Geico Ins. Co., 31 AD3d 509 [2006]). A contrary conclusion would frustrate the core objective of the no-fault scheme by limiting the universe of healthcare providers who can perform IMEs to physicians, thereby delaying the processing of no-fault claims (see also Stephen Fogel Psychological, P.C., 35 AD3d at 722). Therefore, we find that defendant properly denied plaintiff's claims based on its assignors' failure to satisfy a condition precedent to coverage.

Lincoln Gen. Ins. Co. v Alev Med. Supply, Inc., 2011 NY Slip Op 21012 (App. Term, 9th & 10th Jud. Dists. 2011)

With very limited exceptions, an insurer's failure to pay or deny a claim within the 30-day claim determination period (see Insurance Law § 5106) precludes the insurer from interposing most defenses to payment of no-fault benefits, including the fact that medical services or medical [*2]equipment billed for were never actually provided (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556[2008]). If an insurer is precluded from asserting a defense due to its failure to pay or deny a claim within the 30-day claim determination period, it may not later seek to recover amounts it paid on the claim based on a theory of unjust enrichment (see e.g. Cornell Med., P.C. v Mercury Cas. Co., 24 Misc 3d 58 [App Term, 2d, 11th & 13th Jud Dists 2009]). However, where, as here, an insurer timely pays a claim within the 30-day claim determination period, the insurer is not foreclosed from affirmatively commencing an action to recover the amounts paid on the claim when the insurer later discovers that the claim is fraudulent (see State Farm Mut. Auto Ins. Co. v Grafman, 655 F Supp 2d 212, 223-224 [ED NY 2009]; State Farm Mut. Auto Ins. Co. v James M. Liguori, M.D., P.C., 589 F Supp 2d 221 [ED NY 2008]; see also Carnegie Hill Orthopedic Servs. P.C. v GEICO Ins. Co., 19 Misc 3d 1111[A], 2008 NY Slip Op 50639[U] [Sup Ct, Nassau County 2008, Austin, J.]; Progressive Northeastern Ins. Co. v Advanced Diagnostic & Treatment Med., NYLJ, Aug. 2, 2001, at 18, col 2 [Sup Ct, NY County, Gammerman, J.]). The fact that the insurer chose to pay first-party no-fault benefits within the 30-day claim determination period, at a point when the insurer had no reason to deny the claim, "cannot in any sense be taken as a concession that the claim is legitimate" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]). Indeed, an opinion letter issued by the New York State Department of Insurance specifically states that the No-Fault Law "is in no way intended and should not serve as a bar to subsequent actions by an insurer for the recovery of fraudulently obtained benefits from a claimant, where such action is authorized under the auspices of any statute or under common law" (Ops Gen Counsel NY Ins Dept [Nov. 29, 2000]). The rationale behind this interpretation is that "payment of fraudulently obtained No-Fault benefits, without available recourse, serves to undermine and damage the integrity of the No-Fault system, which was created as a social reparations system for the benefit of consumers. To conclude that the No-Fault statute bars the availability of other legal remedies, where the payment of benefits [was] secured through fraudulent means, renders the public as the ultimate victim of such fraud, in the form of higher premiums based upon the resultant increased costs arising from the fraudulent actions" (id.). Moreover, "[t]here is nothing in the legislative history or case law interpretations of the statute or in Insurance Department regulations, opinions or interpretations of the statute that supports the argument that the statute bars such actions" (id.).

Accordingly, contrary to the conclusion of the District Court, plaintiff is not barred from bringing this action seeking recovery of the amount it paid to defendant. As plaintiff demonstrated its compliance with CPLR 3215 (f) and CPLR 3215 (g) (4) (i), the District Court should have granted plaintiff's motion for leave to enter a default judgment.

62-41 Woodhaven Med., P.C. v Adirondack Ins. Exch., 2011 NY Slip Op 50026(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's cross motion papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). As defendant's cross motion papers were sufficient to establish that special circumstances exist which warrant [*2]disclosure of plaintiff's corporate tax returns and its professional employees' tax records (see CPLR 3101; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [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]; Statewide Med. Servs., P.C. v Travelers Ins. Co., 13 Misc 3d 134[A], 2006 NY Slip Op 52014[U] [App Term, 1st Dept 2006], revg 9 Misc 3d 1124[A], 2005 NY Slip Op 51773[U] [Civ Ct, Bronx County 2005]; see also Dore v Allstate Indem. Co., 264 AD2d 804 [1999]; cf. Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Altidor v State-Wide Ins. Co., 22 AD3d 435 [2005]), the order, insofar as appealed from, is affirmed.

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v MVAIC, 2011 NY Slip Op 50028(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Plaintiff, as assignee, is required to exhaust its remedies against the owner of the vehicle in which plaintiff's assignor was riding before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]; see also Knight v Motor Veh. Acc. Indem. Corp., 62 AD3d 665, 666 [2009]; cf. Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Until plaintiff [*2]exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]). Accordingly, the order is reversed and MVAIC's motion for summary judgment dismissing the complaint is granted.

Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50033(U) (App. Term, 9th & 10th Jud. Dists. 2011)

In support of its cross motion and in opposition to defendant's motion for summary judgment, plaintiff did not assert that it had never received the initial and follow-up verification requests nor did it assert that it had fully complied with these requests. Plaintiff's attorney merely argued that since the affidavit of the hospital biller, taken together with the copy of the certified return receipt card, established that defendant had received the bill on December 22, 2008, defendant's initial verification request, sent on November 26, 2008, pre-dated defendant's receipt of the bill and was therefore a nullity. However, the record establishes that defendant's initial verification request was sent to plaintiff after plaintiff had sent, and defendant had received, a UB-04 form, which specified the treatment rendered. The UB-04 form is the successor to the UB-92 form and the functional equivalent of the NF-5 form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [f]). Accordingly, defendant's initial verification request was not untimely (cf. Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]).

Since plaintiff has not rebutted defendant's prima facie showing that defendant's initial request and follow-up request for verification were timely and that plaintiff failed to respond to same, defendant established that its time to pay or deny the claim was tolled. Consequently, defendant's motion for summary judgment dismissing the complaint, on the ground that the action was premature, should have been granted (see 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]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). Accordingly, the order is reversed, defendant's motion is granted and plaintiff's cross motion for summary judgment is denied.

Radiology Today, P.C. v GEICO Gen. Ins. Co., 2011 NY Slip Op 50035(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In light of the subsequent order granting defendant's motion to dismiss the complaint (Rudolph Greco, J.) and the judgment entered thereon on November 16, 2009, the right of direct appeal from the order entered September 25, 2009 terminated (see Matter of Aho, 39 NY2d 241, 248 [1976]).

B.Y., M.D., P.C. v GEICO Indem. Co., 2011 NY Slip Op 50036(U) (App. Term, 9th & 10th Jud. Dists. 2011)

Thereafter, the parties participated in mandatory arbitration (see Rules of the Chief Judge [22 NYCRR] part 28) and, after the arbitration hearing, the arbitrator found in favor of plaintiffs. Defendant served and filed a demand for a trial de novo (seeRules of the Chief Judge [22 NYCRR] § 28.12), and plaintiffs moved to strike defendant's demand. In support of plaintiffs' motion, plaintiffs' attorney asserted that, while defendant had appeared at the arbitration by its attorney, defendant's attorney's participation had been minimal, and, thus, defendant should have been deemed to be in default. As a result, plaintiffs contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). Defendant submitted opposition papers, and the District Court denied plaintiffs' motion. The instant appeal ensued.

The Rules of the Chief Judge (22 NYCRR) § 28.12 (a) provides that a demand for a trial de novo "may be made by any party not in default." A party's failure to appear at an arbitration hearing constitutes a default (see Rules of the Chief Judge [22 NYCRR] § 28.7 [a]). Even where a defendant has appeared by counsel at an arbitration hearing, if such appearance is "without his client[]" and the defendant's counsel "refus[es] to participate in the hearing," the defendant is [*2]similarly deemed to have defaulted (Bitzko v Gamache, 168 AD2d 888, 888 [1990]; see also Finamore v Huntington Cardiac Rehabilitation Assn., 150 AD2d 426 [1989]). However, where, as here, a defendant's attorney appears on behalf of his client at the arbitration hearing without any witnesses, but otherwise participates in the hearing by attempting to refute the plaintiff's case, the defendant has not defaulted (see e.g. Tripp v Reitman Blacktop, 188 Misc 2d 317 [App Term, 9th & 10th Jud Dists 2001]; San-Dar Assoc. v Adams, 167 Misc 2d 727 [App Term, 1st Dept 1996]). Accordingly, the District Court properly denied plaintiffs' motion to strike defendant's demand for a trial de novo.

Appellate Division

Westchester Med. Ctr. v Allstate Ins. Co., 2011 NY Slip Op 00377 (App. Div., 2nd 2011)

The order entered December 21, 2009, did not decide the plaintiff's motion to hold the defendant in contempt for failure to comply with an information subpoena dated March 30, 2009, or the defendant's cross motion to quash the information subpoena, but instead, held that motion and cross motion in abeyance and referred them for a hearing. Accordingly, no appeal lies as of right from that portion of the order (see CPLR 5701[a][2][v]; Evan S. v Joseph R., 70 AD3d 668; Quigley v Coco's Water Café, Inc., 43 AD3d 1132), and we decline to grant leave.

A defendant seeking to vacate a judgment entered on default must demonstrate a [*2]reasonable excuse for its delay in appearing or answering the complaint and a potentially meritorious defense to the action (see CPLR 5015[a][1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677). The defendant established through an employee's affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons and complaint to its attorney, a reasonable excuse for the short period of time following service of the complaint in which it failed either to appear or answer the complaint (see Perez v Travco Ins. Co., 44 AD3d 738; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743). Furthermore, the defendant demonstrated that it has a potentially meritorious defense to the action. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate its default and to compel acceptance of its answer in light of the strong public policy that actions be resolved on their merits, the brief delay involved, the defendant's lack of willfulness, and the absence of prejudice to the plaintiff (see Perez v Travco Ins. Co., 44 AD3d 738; New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442).

Almost related to no-fault.

Quinones v Ksieniewicz, 2011 NY Slip Op 00270 (App. Div., 1st 2011)

However, defendants failed to establish prima facie that plaintiff did not sustain a medically determined injury "of a non-permanent nature" that prevented him from performing substantially all of his customary and daily activities for 90 of the 180 days immediately following the accident (see Toussaint v Claudio, 23 AD3d 268 [2005]; Feaster v Boulabat, 77 AD3d 440, 441 [2010]). The reports of defendants' medical experts were based on examinations of plaintiff conducted nearly two years after the subject accident, and addressed plaintiff's condition as of the time of the examination, not during the six months immediately after the accident. The MRI studies that the defense experts reviewed were performed 10 months after the accident.

Might be important: “a fatal flaw”

D'Auria v Kent, 2011 NY Slip Op 00138 (App. Div., 3rd 2011)

As to the elbow injury, however, Benton merely opined in a single paragraph that plaintiff's diagnosis was "a subjective complaint and there are no objective findings to support the same." As plaintiff argues, Benton thus wholly failed to consider or address an MRI study obtained approximately one year prior to his medical record review. Further, it appears from the face of the affirmed MRI report that the results of this objective test may support the findings of plaintiff's treating physician and the report of another medical examiner upon which plaintiff relies, both of whom attributed her disability, to some unspecified degree, to the elbow injury and resulting limitation of use and function of her left arm and elbow. This failure thus presented a fatal flaw in defendants' motions; it is simply not possible to determine, as a matter of law upon the record presented, to what extent plaintiff's alleged disability related to the elbow injury, as opposed to the claimed back and spine injuries, nor whether the limitations arising from the elbow injury were more than "minor, mild or slight" (Parks v Miclette, 41 AD3d 1107, 1109-[*3]1111 [2007] [internal quotation marks and citations omitted])^[FN4]. Therefore, finding that defendants failed to meet their burden of demonstrating a right to judgment in their favor as a matter of law, we reverse the order granting defendants' motions dismissing the complaints.

An unpleaded defense: CPLR § 3018

CPLR § 3018

Sullivan v American Airlines, Inc., 2011 NY Slip Op 00215 (App. Div., 2nd 2011)

The defendants did not waive their contention that the plaintiffs relinquished all claims regarding the statements in the final advisories because they accepted reinstatement. Although the defendants failed to plead as an affirmative defense that the plaintiffs relinquished their claims (see CPLR 3018[b]), an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party (see Lerwick v Kelsey, 24 AD3d 918, 919; Sheils v County of Fulton, 14 AD3d 919, 921; Allen v Matthews, 266 AD2d 782; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832, affd 54 NY2d 883).

Interesting 3211(a)(8) Motion

CPLR R. 3211(a)(8)

Lettieri v Cushing, 2011 NY Slip Op 00194 (App. Div., 2nd 2010)

ORDERED that the order is modified, on the law, by adding to the provision denying that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Jumpking, Inc., a further provision that the denial is without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over that defendant; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on this issue (see Castillo v Star Leasing Co.,69 AD3d 551; Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 616; Ying Jun Chen v Lei Shi, 19 AD3d 407). However, "in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth, a sufficient start, and show[ ] their position not to be frivolous'" (Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d 463, 467). "[T]he plaintiffs need only demonstrate that facts may exist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19 AD3d at 408, quoting Peterson v Spartan Indus.,33 NY2d at 467; see Castillo v Star Leasing Co., 69 AD3d 551). [*2]

Here, in opposition to the defendants' motion to dismiss, the plaintiff established that facts "may exist" to exercise personal jurisdiction over the defendant Jumpking, Inc. (hereinafter Jumpking), and made a "sufficient start" to warrant further disclosure on the issue of whether personal jurisdiction may be established over that defendant (Peterson v Spartan Indus., 33 NY2d at 467; see Castillo v Star Leasing Co.,69 AD3d at 552). Thus, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Jumpking. However, the Supreme Court should have denied that branch of the defendants' motion without prejudice to renewal upon the completion of discovery on the issue of whether personal jurisdiction may be established over Jumpking (see Peterson v Spartan Indus., 33 NY2d at 467; Castillo v Star Leasing Co., 69 AD3d at 552).

In addition, CPLR 3212(f) permits a party opposing a motion for summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (see Botros v Flamm, 77 AD3d 602; Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). Under the circumstances presented here, the Supreme Court properly denied, as premature, with leave to renew upon the completion of disclosure, that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant Wal-Mart Stores, Inc., doing business as Sam's Club.

CPLR R. 3025

CPLR R. 3025 Amended and supplemental pleadings
(b) Amendments and supplemental pleadings by leave

Giunta's Meat Farms, Inc. v Pina Constr. Corp.

Generally, leave to amend a pleading pursuant to CPLR 3025(b) should be freely granted in the absence of prejudice or surprise resulting directly from the delay in seeking leave (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d 512; Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27; Bennett v Long Is. Jewish Med. Ctr., 51 AD3d 959; Lucido v Mancuso, 49 AD3d 220, 222, 227). Furthermore, a court should not examine the merits or legal sufficiency of the proposed amendment unless it is palpably insufficient or patently devoid of merit on its face (see Rosicki, Rosicki & Assoc., P.C. v Cochems, 59 AD3d at 514; Lucido v Mancuso, 49 AD3d at 227).

Order directing to file NOI the same as 90 day notice.

CPLR R. 3216 Want of prosecution

CPLR § 2004 Extensions of time generally

Fenner v County of Nassau, 2011 NY Slip Op 00178 (App. Div., 2nd 2011)

The certification order of the Supreme Court dated February 19, 2008, directing the plaintiff to file a note of issue within 90 days, and warning that the complaint would be deemed dismissed without further order of the Supreme Court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Sicoli v Sasson, 76 AD3d 1002; Rodriguez v Five Towns Nissan, 69 AD3d 833; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). Having received a 90-day notice, the plaintiff was required either to serve and file a timely note of issue or to move pursuant to CPLR 2004, prior to the default date, to extend the time within which to serve and file a note of issue (see Sharpe v Osorio, 21 AD3d 467, 468; DeVore v Lederman, 14 AD3d 648, 649; Bokhari v Home Depot U.S.A., 4 AD3d 381, 382). In light of the plaintiff's failure to do either, the complaint was properly dismissed pursuant to CPLR 3216 (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783).

To vacate the dismissal of the complaint, the plaintiff was required to demonstrate a justifiable excuse for his failure to comply with the certification order and the existence of a potentially meritorious cause of action (see CPLR 3216[e]; Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Rodriguez v Five Towns Nissan, 69 AD3d at 834; Davis v Cardiovascular Consultants of Long Is., P.C., 65 AD3d 1076, 1077; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783). [*2]

In support of his motion, the plaintiff failed to proffer any excuse for his failure to comply with the certification order. The excuse of law office failure proffered by the plaintiff's attorney for the first time in a reply affirmation was not properly before the Supreme Court (seeCPLR 2214; 47 Thames Realty, LLC v Robinson, 61 AD3d 923, 924; Murray v New York City Health & Hosps. Corp., 52 AD3d 792, 794; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553). Moreover, the conclusory and unsubstantiated claim of law office failure did not rise to the level of a reasonable excuse (see Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 784; Matter of Bloom v Lubow, 45 AD3d 680; Lugauer v Forest City Ratner Co., 44 AD3d 829, 830). Furthermore, the plaintiff's motion papers failed to establish the existence of a potentially meritorious cause of action (see Dixon v Village of Spring Val., 50 AD3d 943; Apostolakis v Centereach Fire Dist., 300 AD2d 516; Sandstrom v Rodriguez, 221 AD2d 513).