Author: DMG

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Appellate Term, First Department

Downtown Integrated Med. Servs., P.C. v MVAIC, 2010 NY Slip Op 51778(U) (App. Term, 1st 2010)

We agree with defendant MVAIC that the appropriate statute of limitations for plaintiffs' claims seeking recovery of assigned first-party no-fault benefits from defendant, a statutorily created entity whose obligation to pay such benefits exists solely by virtue of statute, is three years (see Shtarkman v Motor Veh. Acc. Indem. Corp., 20 Misc 3d 132[A], 2008 NY Slip Op 51447[U] [2008]; see also Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; cf. Mandarino v Travelers Property Cas. Ins. Co., 37 AD3d 775[2007]). For the reasons outlined in Pinnacle Open MRI, P.C. v Republic Western Ins. Co. (18 Misc 3d 626, 632-633 [2008]), defendant is not analogous to a self-insurer, and the six-year statute of limitations applicable to claims against a self-insurer is therefore inapplicable to claims against defendant (cf. Richard Denise, M.D., P.C. v New York City Trans. Auth., 25 Misc 3d 13 [2009]). Since plaintiffs' claims were interposed after the three-year limitations period expired, defendant's motion for summary judgment dismissing the complaint as time-barred should have been granted.

Omega Diagnostic Imaging, P.C. v MVAIC, 2010 NY Slip Op 51779(U) (App. Term, 1st 2010)

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claim to recover assigned first-party no-fault benefits (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). In opposition, defendant (MVAIC) failed to demonstrate any basis to dismiss the complaint or raise a triable issue. Defendant's contention that the action is premature because plaintiff failed to establish that it qualified for MVAIC coverage is without merit (see New York Hosp. Med. Ctr. of Queens, supra; see also Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]).

Nor is the action premature on the ground that there is an outstanding verification request. Defendant served on plaintiff and its assignor requests that they obtain from the out-of-state driver of the vehicle that struck the assignor an "affidavit of no insurance." The requests, however, were not proper, since there was no "good reason" for defendant to demand that plaintiff and its assignor obtain an affidavit from the driver, who is neither a party to this action nor under the control of either plaintiff or its assignor (see 11 NYCRR 65-3.2[c]).

Similarly without merit is defendant's contention that the action should be dismissed because plaintiff failed to establish that it "exhausted its remedies" before seeking payment of first-party benefits from defendant. On this record, defendant failed to establish the applicability of such a requirement (see generally Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC, supra; New York Hosp. Med. Ctr. of Queens, supra; cf. Hauswirth v American [*2]Home Assur. Co., 244 AD2d 528 [1997]).

 

Socrates Med. Health, P.C. v MVAIC, 2010 NY Slip Op 51780(U) (App. Term, 1st 2010)

Civil Court properly denied defendant's motion for summary judgment, since material outstanding disclosure remains extant. Summary judgment may be renewed upon the completion of disclosure. We note that, contrary to defendant's assertion, plaintiff is not required to establish that its assignor is a "qualified person"; the burden on this issue lies with defendant (see Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]; New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]).

Appellate Tern, Second Department

A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co., 2010 NY Slip Op 20416 (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

CPLR 5015 (a) (3) provides that a judgment may be vacated on the ground of "fraud, misrepresentation, or other misconduct of an adverse party." When a defendant's CPLR 5015 (a) (3) motion alleges intrinsic fraud—i.e., that the plaintiff's allegations are false—the defendant must also provide a reasonable excuse for its default (see Bank of N.Y. v Stradford, 55 AD3d 765 [2008]; Bank of N.Y. v Lagakos, 27 AD3d 678 [2006]).{**29 Misc 3d at 89}

In support of its motion, defendant argued that plaintiff had submitted affidavits which contained false statements and that plaintiff had annexed to its motion papers false documentation. Defendant was, thus, alleging that plaintiff had obtained the default judgment through "intrinsic fraud" (Bank of N.Y. v Lagakos, 27 AD3d at 679). Consequently, defendant was required to show a reasonable excuse for its default (see Bank of N.Y. v Stradford, 55 AD3d at 765-766), which defendant failed to do. The affirmation of defendant's attorney did not show that counsel had personal knowledge of any facts pertaining to the alleged law office failure and, therefore, the affirmation was insufficient to establish an excuse for the default (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]). Further, since defendant's attorney's "supplemental" affirmation was, in fact, a reply affirmation, the factual allegations asserted for the first time therein must be disregarded (see McNair v Lee, 24 AD3d 159 [2005]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355 [2005]).

Note the dissent:

Unlike the majority, I find that the affirmations submitted in support of defendant's motion to vacate the default judgment established sufficient knowledge of the facts asserted.

"Personal knowledge is not presumed from a mere positive averment of the facts. A court should be shown how the deponent knew or could have known such facts and if there is no evidence from which the inference of personal knowledge can be drawn then it is presumed that such does not exist (1 Carmody-Wait 2d, NY Prac § 4:28, at 644)" (Bova v [*2]Vinciguerra, 139 AD2d 797, 798 [1988] [citation omitted]).

The affirmation of defendant's attorney, Adeel Jamaluddin, is prefaced by a statement of personal knowledge of the within matter. The affirmation of another of defendant's attorneys, Paul Barrett, detailed his employment with the firm responsible for the law office failure. These affirmations, in conjunction with the attorneys' obvious familiarity with the facts of the instant case, clearly establish the requisite personal knowledge demanded of an affirmation. Defendant's law firm inadvertently lost essential documents, i.e., plaintiff's 2003 motion papers for summary judgment, and subsequently miscalendared the December 2004 court date, all as a result of personnel turnover (at a minimum five different assigned counsels and one law assistant). As the foregoing clearly constitutes law office failure, defendant established a reasonable excuse for its default.

In addition to demonstrating an excusable default, defendant must also establish a meritorious defense. It is alleged from the documents submitted herein that plaintiff committed intrinsic fraud. Unlike extrinsic fraud, which is intended to induce a judgment as a result of the opposing party's default, intrinsic fraud is a more subtle concept based on a misrepresentation made to the court, in this case the alteration of documents (see generally 60A NY Jur 2d, Fraud and Deceit § 3; Bank of N.Y. v Lagakos, 27 AD3d 678 [2006]). The handwritten entries on the submitted documents herein could appear both to influence the court's attention and to direct it to matters that plaintiff deems important, as well as to disfavor other matters. Clearly, it is axiomatic that documents entered into the record should never be altered in any way, for any purpose. Such an alteration of submitted documents constitutes a meritorious defense of intrinsic fraud. Based on the foregoing, I would affirm the Civil Court's order.

Friendly Physician, P.C. v GEICO Ins. Co, 2010 NY Slip Op 51770(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

Since the affidavit executed by defendant's claim representative stated that she began working for defendant after the denial of claim forms at issue were allegedly mailed by defendant, and defendant did not otherwise establish the actual mailing of the denial of claim forms or its standard office practices and procedures for the mailing of denial of claim forms [*2]during the pertinent time period, defendant failed to establish that its denial of claim forms were timely mailed (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]; Points of Health Acupuncture, P.C. v Geico Ins. Co., 25 Misc 3d 140[A], 2009 NY Slip Op 52445[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to establish that it was not precluded from raising most defenses, including its proffered defenses (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008])

Friendly Physician, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51772(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

We note that, contrary to the Civil Court's direction, relief from an order granted upon default should be sought by means of a motion pursuant to CPLR 5015, not by a motion to renew or reargue (see e.g. Raciti v Sands Point Nursing Home, 54 AD3d 1014 [2008]). 

Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 2010 NY Slip Op 51722(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

The determination of whether to strike a pleading for a failure to comply with court-ordered discovery lies within the sound discretion of the court of original instance (see CPLR 3126 [3]; Mir v Saad, 54 AD3d 914 [2008]), and a determination to impose sanctions for conduct which frustrates the disclosure scheme of the CPLR should not be disturbed absent an improvident exercise of discretion (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954 [2009]). It is uncontroverted that plaintiff failed to provide responses to all of defendant's discovery demands within 60 days of the January 11, 2008 order. Therefore, the Civil Court could have granted defendant's July 2008 motion to strike the complaint but, instead, provided plaintiff with another opportunity to respond to the demands. Consequently, we find that the February 17, 2009 order, insofar as it denied plaintiff's motion pursuant to CPLR 3104 (d), did not constitute an improvident exercise of discretion. To the extent that plaintiff contends that the July 15, 2008 order violated the doctrine of law of the case, we note that this doctrine does not apply to prior discovery orders (see Sullivan v Nigro, 48 AD3d 454 [2008]; Clark v Great Atl. & Pac. Tea Co., Inc., 23 AD3d 510, 511 [2005]; D & R Realty Assoc. Corp. v Pisano, 24 Misc 3d 143[A], 2009 NY Slip Op 51736[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Sunshine Care Corp. v Novick, 19 Misc 3d 143[A], 2008 NY Slip Op 51101[U] [App Term, 9th & 10th Jud Dists 2008]).

We similarly find that so much of the February 17, 2009 order as granted defendant's motion to strike the complaint, pursuant to CPLR 3126, was not an improvident exercise of discretion. Plaintiff was required, but failed, to challenge the propriety of defendant's discovery demands pursuant to CPLR 3120 within the time prescribed by CPLR 3122. As a result, plaintiff was obligated to produce the information sought except as to matters which were palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005];Marino v County of Nassau, 16 AD3d 628 [2005]; Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d & 11th Jud Dists 2008]). Plaintiff could not merely provide responses solely to those items it deemed material and necessary. Since plaintiff provided inadequate and unreasonable excuses for its failures to comply with the court orders, such failures to comply can be considered willful and contumacious (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d at 954-955;Duncan v Hebb, 47 AD3d 871 [2008]; D & R Realty Assoc. Corp., 24 Misc 3d 
143[A], 2009 NY Slip Op 51736[U]; see also Mir v Saad, 54 AD3d at 914). 

Altair Med., P.C. v Clarendon Natl. Ins. Co., 2010 NY Slip Op 51721(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

Defendant's contention that the Civil Court should have granted it summary judgment dismissing the claim by plaintiff Altair Medical, P.C. and the claim by plaintiff S & R Medical, P.C. in the amount of $793.24 lacks merit because the "peer review report" pertaining to these claims was unsigned. Accordingly, defendant failed to establish its prima facie entitlement to summary judgment dismissing these claims (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Aminov v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 51723(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010))

We note at the outset that while defendant argued that plaintiff did not submit its claim forms within 180 days after the medical services were provided, since the medical services were provided from October 7, 2004 through December 29, 2004, plaintiff was actually required to submit its claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1 [effective April 5, 2002]).

Upon a review of the record, we are of the opinion that defendant did not make a prima facie showing of its entitlement to judgment as a matter of law. While the complaint listed the [*2]total amount allegedly owed to plaintiff, it did not list the dates that the subject medical services were provided, and the subject claim forms were not annexed to the complaint. Therefore, while defendant asserted that it had never received the claim forms, such assertion appears to be belied by the fact that defendant was aware of the dates the medical services were rendered, and it is unclear from what source defendant acquired this knowledge if not from the claim forms. In light of the foregoing, upon the instant motion, defendant failed to establish as a matter of law that plaintiff had failed to submit the subject claim forms within 45 days of the date that the services were provided (see Insurance Department Regulations [11 NYCRR] § 65-1.1).

L & b Med., P.C. v Eveready Ins. Co., 2010 NY Slip Op 51725(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010)

Golia, J., concurs in the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am in complete disagreement with the findings of the arbitrator and the master arbitrator, in that they improperly imposed an additional requirement for a sufficient peer review report, which requirement is neither mandated by the no-fault regulations nor supported by authoritative case law. However, notwithstanding the error in their application of the law, such error does not here rise to the level of being arbitrary and capricious. 

D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51738(U) (App. Term, 2nd, 11th & 12th Jud. Dists. 2010)

In the instant case, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiffs' assignor was acting as an employee at the time of the accident, and that therefore workers' compensation benefits might be available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629; Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008];Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, prior to rendering a determination on the motions, the Civil Court should have held the matter in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties' rights under the Workers' Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752).

 

Appellate Division

Westchester Med. Ctr. v Government Empls. Ins. Co., 2010 NY Slip Op 07331 (App. Div., 2nd 2010)

In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]), the defendant failed to raise a triable issue of fact as to whether it properly denied the plaintiff's claim for no-fault benefits based on the alleged intoxication of the plaintiff's assignor at the time of the accident. Since the defendant failed to submit any evidence whatsoever from which the circumstances of the accident could be ascertained, the nature of the accident is unknown, and, thus, the defendant's evidence, while presenting a factual question as to whether the plaintiff's assignor was operating a vehicle in an intoxicated condition, was insufficient by itself to raise a triable issue of fact as to whether the plaintiff's assignor was "injured as a result of operating a motor vehicle while in an intoxicated condition" (Insurance Law § 5103 [b] [2] [emphasis added]; see 11 NYCRR 65-3.14 [b]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 752; Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]; McCarthy v Commercial Union Ins. Co., 194 Misc 2d 295, 297 [2002]). Accordingly, while, under the circumstances of this case, there is no merit to the plaintiff's remaining contentions concerning the facial sufficiency of the form used to deny the claim and the Supreme Court's consideration of certain uncertified medical records (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017; Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579, 580 [2007]), its motion for summary judgment should nonetheless have been granted

Motor Veh. Acc. Indem. Corp. v NYC East-West Acupuncture, P.C., 2010 NY Slip Op 07111 (App. Div., 1st 2010)

Appellant medical providers cross-moved to confirm the arbitration awards. In the order appealed from, Supreme Court denied the applications based upon its conclusion that "[g]iven the length of time that had already passed since the accident and the commencement of the arbitration, a brief adjournment to ascertain whether or not Ms. Li had insurance coverage was not an unreasonable request . . . [and] that the arbitrator's failure to grant MVAIC's request is deemed to constitute an abuse of discretion constituting misconduct within the meaning of CPLR 7511 (b) (1) (i) since it resulted in the foreclosure of the presentation of pertinent and material evidence" (internal quotation marks and citations omitted). We reverse.

It is well settled that "[a]djournments generally fall within the sound exercise of an arbitrator's discretion pursuant to CPLR 7506 (b), the exercise of which will only be disturbed when abused" (Matter of Bevona [Superior Maintenance Co.], 204 AD2d 136, 139 [1994] [citations omitted]). The burden falls to "the party seeking to avoid an arbitration award to demonstrate by clear and convincing proof that the arbitrator has abused his discretion in such a manner so as to constitute misconduct sufficient to vacate or modify an arbitration award" (Matter of Disston Co. [Aktiebolag], 176 AD2d 679, 679 [1991], lv denied 79 NY2d 757 [1992][*4][internal quotation marks and citation omitted]). Arbitral misconduct is established not by the refusal of an adjournment, but where the refusal forecloses "the presentation of material and pertinent evidence to the [movant]'s prejudice" (Matter of Omega Contr. v Maropakis Contr., 160 AD2d 942, 943 [1990]).

We conclude that the arbitrator did not abuse his discretion in refusing to grant MVAIC an adjournment. The arbitrator's decision not to grant a postponement in order to allow MVAIC to investigate an adversary's contention was within his sound discretion and powers. Here, the record establishes that because of East-West's letter dated October 27, 2004, MVAIC had been on notice for approximately three years that GEICO denied East-West's claim on the basis that neither Chu nor a vehicle insured by GEICO was involved in the underlying hit-and-run motor vehicle accident. This letter also advised MVAIC that GEICO's investigation revealed that there existed no other insurance coverage for Li.

MVAIC's untimely assertion of a lack of coverage defense does not preclude it from denying liability (see Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). However, we find that the arbitrator's refusal to adjourn the hearing did not constitute misconduct because there was an insufficient showing of cause for MVAIC's last minute request (see Gillis v Toll Land XIII Ltd. Partnership, 309 AD2d 734 [2003], lv denied 3 NY3d 602 [2004]).

Despite MVAIC having notice in late 2004 of GEICO's contentions, MVAIC took no affirmative steps, such as searching New York State Department of Motor Vehicle (DMV) records, to establish whether Li was eligible for MVAIC benefits. Indeed, MVAIC provides no explanation as to why it did not investigate the DMV records sooner or why it could not discover that Li allegedly used the alias "Lillian Li," and that under this alias, she was insured by Allstate at the time she sustained her injuries. Under these circumstances, we conclude that MVAIC has failed to establish by clear and convincing proof that the arbitrator abused his discretion in such a manner to constitute misconduct sufficient to vacate or modify the arbitration awards in favor of appellants.