Compas Med., P.C. v New York State Ins. Fund (2020 NY Slip Op 51169(U))

CV-56687-15/KI

Oleg Rybak, Esq.
The Rybak Firm, PLLC
1810 Voorhies Avenue, Suite 7
Brooklyn, New York 11235
(718) 975-2035
Counsel for Plaintiff

Christin Brown, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
1133 Westchester Avenue
White Plains, New York 10604
(914) 323-7000
Counsel for Defendant

RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION

NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2

AFFIRMATION IN SUPPORT & EXH. ANNEXED 3-4

AFFIRMATION IN OPPOSITION & EXH. ANNEXED 5-6

Plaintiff moves This Honorable Court by Notice of Motion pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims [*2]for lack of jurisdiction pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9. For the reasons set forth below, Plaintiff’s Motion for Leave to Reargue and Renew is hereby DENIED.

PROCEDURAL AND FACTUAL HISTORY

Action commenced by Plaintiff for Defendant’s failure to pay first party No-Fault benefits as a result of medical services rendered to Eligible Injured Party (hereinafter EIP) as result of motor vehicle accident (hereinafter MVA) on December 18, 2009. Summons and Complaint served September 15, 2015 and filed on September 16, 2015. Issue joined by Defendant’s service of Verified Answer on January 25, 2016. Subsequently, Plaintiff filed for Motion for Summary Judgment on September 28, 2018 pursuant to CPLR 3211 (c) or CPLR 3212 (a) and dismissal of Defendant’s affirmative defenses pursuant to CPLR 3211 (b), premised on grounds that it timely mailed its claims to Defendant, Defendant received these claims, but failed to timely pay nor timely deny the claims within the statutory thirty (30) day period. In opposition thereto, Defendant cross-moved for summary judgment pursuant to CPLR 3211 (a) (2), CPLR 3211 (a) (7), CPLR (a) (8), and CPLR 3212 on June 10, 2019, arguing that this Court lacks jurisdiction to entertain this case as NYSIF is a state agency and that any action brought against it must be brought in the New York State Court of Claims.

Underlying Oral Argument Held September 10, 2019

At initial oral argument of the dueling underlying motions, Plaintiff’s main arguments were based upon first party No-fault Benefits Law. Whereas, in sum and substance, Defendant argued quite vehemently that time and time again it has explained to Plaintiff’s Counsel that it was not the proper party; It is not a No-Fault insurer; it does not administer first party No-Fault claims; it is not responsible for the payment of No-Fault benefits; rather, it is a New York State statutorily created Worker’s Compensation Carrier; Kings County Civil Court has no Jurisdiction over this New York State statutorily created agency; Jurisdiction, except for worker’s compensation matters, lies solely with New York State Court of Claims pursuant to New York State Constitution Article VI, Section 9, Court of Claims Act §9. More so persuasive, Defendant argued that this very same lack of jurisdiction issue had already been decided in a similarly situated action brought by Plaintiff’s Counsel likewise for motion for summary judgment filed on May 1, 2017, which was presided over by Retired Kings County Civil Court Judge, Honorable Michael Gerstein by Decision/Order dated December 10, 2018. Judge Gerstein held that Kings County Civil Court lacked Jurisdiction over this New York State Actor Defendant in first party No-Fault benefit actions and granted Plaintiff leave to transfer this action to the Court of Claims (Ultimate Care Chiropractic, P.C. a/a/o Garris, Kenneth v NYSIF, Index No. 716668/2016 [hereinafter Ultimate Care]). Thereafter, Plaintiff’s Counsel filed Notice of Removal in the New York Court of Claims for Ultimate Care stating, “The Claimant brings this present action in the Court of Claims, State of New York as the court of competent jurisdiction over the Defendant New York State Insurance Fund” (affirmation in opposition, Exhibit I). However, Court of Claims rejected Ultimate Care because it does not accept transfer of cases and the matter was time-barred since a claim for breach of contract must be brought within six (6) months of the accrual date (New York State Constitution Article VI, Section 9, Court of Claims Act §10). Defendant expressed utter frustration that Plaintiff Counsel nevertheless continued to send No-Fault medical bills for payment and when no payment or denial was received (parenthetically, which should have been the anticipated outcome) commenced similarly situated first party No-Fault benefit actions against this very same New York State Actor Defendant since December [*3]10, 2018 Decision/Order by Judge Gerstein:

1. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706448/19

2. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706446/19

3. Jules Francois Parisien, M.D. a/a/o Guirand, Deromme v NYSIF — Index 706444/19

4. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706445/19

5. Jules Francois Parisien, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706455/19

6. Jules Francois Parisien, M.D. a/a/o Cooper, Edweena v NYSIF — Index 706449/19

7. Quality Health Supply Corp., a/a/o Cooper Edweena v NYSIF — Index 706450/19

8. Ksenia Pavlova D.O. a/a/o Cooper, Edweena v NYSIF — Index 706452/19

9. Pierre J. Renelique, M.D. a/a/o Magloire, Bueno v NYSIF — Index 706457/19

10. Island Life Chiropractic Pain Care PLLC a/a/o Magloire, Bueno v NYSIF 706458/19

11. Excel Products Inc., a/a/o Gabriel, Marc v NYSIF — Index 706440/19

12. Charles Deng Acupuncture, P.C. a/a/o Cooper, Edweena v NYSIF — Index 706454/19

13. Maiga Products Corp., a/a/o Magloire, Bueno v NYSIF — Index 706459/19

14. Solution Bridge, Inc., a/a/o Goulbourne, Alfred v NYSIF — Index 706441/19

15. Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. a/a/o Magloire, Bueno v NYSIF Index — 706460/19

16. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706442/19

17. Allay Medical Services, P.C. a/a/o Guirand, Deromme v NYSIF Index — 706443/19

18. Allay Medical Services, P.C. a/a/o Petit-Saint, Marceau v NYSIF Index — 706445/19

19. Darren T. Mollo D.C., a/a/o Cooper, Edweena v NYSIF Index — 706453/19

20. Allay Medical Services, P.C. a/a/o Duplessis, Mario v NYSIF — Index 706447/19

(affirmation in opposition, paragraph 17).

Defendant argued that Plaintiff asked that if it is not the proper party for No-Fault benefits then identify the proper party, to which Defendant bristled that it is not its job to so do. Nevertheless, with full knowledge and admittedly conceding that indeed Court of Claims is the court of competent jurisdiction (exception for worker’s compensation claims), Plaintiff’s Counsel unexplainedly continued to seek relief in Kings County Civil Court. Defendant further argued, This Court was collaterally estopped by Judge Gerstein’s Decision/Order in Ultimate Care. This Court opined that collateral estoppel is not viable where, although argument may be made as to similarly situated actions, yet still, there were different parties and different specific facts. Therefore, issue preclusion may be persuasive but not dispositive with the instant matter, particularly where deciding jurist is of concurrent jurisdiction in the lower courts. Nevertheless, This Court in agreement with Ultimate Care similarly ruled jurisdiction lies with Court of Claims and not with Kings County Civil Court. Defendant quite frustratedly implored This Court to admonish Plaintiff to withdraw all the improperly filed pending cases including the instant action and cease sending medical bills for No-Fault Benefits to Defendant. This Court responded that Kings County Civil Court similarly lacks Jurisdiction in Equity to issue any such broad wide-ranging Declaratory Judgment in this regard and could merely rule on the instant matter before it. Consequently, This Court denied Plaintiff’s motion for summary judgment and to dismiss affirmative defenses, removing the action to the Court of Claims pursuant to the New York State Constitution Article VI, Section 9, Court of Claims Act §9.

Post-Underlying Oral Argument

Plaintiff filed This instant Motion to Reargue and Renew pursuant to CPLR 2221 (d) and CPLR 2221 (e) on September 27, 2019, returnable October 21, 2019. In the interim, Plaintiff’s [*4]Counsel similarly filed Motion to Reargue and Renew Judge Gerstein’s Decision pursuant to CPLR 2221 (d) and CPLR 2221 (e) for Ultimate Care, which was Denied with prejudice on February 4, 2020. This instant motion was ultimately adjourned to September 22, 2020, where oral argument was held and similarly as with Ultimate Care, Motion Denied.

DISCUSSION

LEAVE TO REARGUE: CPLR 2221(d)

Movant for leave to reargue underlying motion must persuade court that “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” is reversible error (CPLR 2221 [d]; Matter of Miness v Deegan, 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399; Bolos v Staten Island Hosp., 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995]; Schneider v Solowey, 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988]). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial (Application of Central States Paper & Bag Co., Inc., 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff’d mem 284 AD 841, 134 NYS 2d 271 [1st Dept 1954]; Rubin v Dondysh, 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990]). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue “shall be made, on notice, to the judge who signed the order” (Alta Apartments LLC v Wainwright, 4 Misc 3d 1009 [A], 791 NYS 2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004]), as is herein.”A Motion to reargue is not an aggrieved party’s second bite of the apple to present new or divergent arguments from its original failed arguments” (819 Realty Group LLC v Beast Fitness Evolved LLC, 2019 NY Misc. LEXIS 5038, *14, 2019 NY Slip Op 51496 [U], 8, 65 Misc 3d 1204 [A], 118 NYS 3d 367, citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005]; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005]; Amato v Lord & Taylor, Inc., 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004]; Frisenda v X Large Enters., 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001]; Foley v Roche, 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979]), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court (id, citing William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 588 NYS 2d 8 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971, 472 NYS 2d 661 [1st Dept 1984]).

In the instant matter, Plaintiff failed to state any misapprehension of fact or law nor any fact or law that had been overlooked by This Court. Rather, Plaintiff made the very same arguments as made in the underlying motion. Court explicitly queried several times of Plaintiff to be specific as to its re-argument: What law or fact was misapprehended or overlooked by Court. Recurringly, there was merely a restating of the very same argument by Plaintiff – “this court has jurisdiction.” Court noted to Plaintiff that said motion to reargue is not a second bite of the apple to relitigate its very same arguments. On the contrary, there shall be no relitigating of the very same arguments as made in the underlying motion. Failure to present any law or fact misapprehended or overlooked therefore failed to establish basis for leave to reargue.

However, on further inquiry by the Court, Plaintiff conceded that there was a fact that was overlooked, to wit, this matter was time-barred by Court of Claims. Court pointed out to Plaintiff that this is not a fact that had been argued in its underlying motion. On the contrary, the first introduction of this fact is in this instant motion rendering it a new fact being proffered for [*5]the first time by the movant. Therefore, it is indeed a new matter of fact not offered on the prior motion pursuant to CPLR 2221 (d) (2). Accordingly, Plaintiff’s argument fails in the second prong of CPLR 2221 (d) (2), in that leave to reargue “shall not include any matters of fact not offered on the prior motion“. Clearly, this is not the case here. Plaintiff failed to argue this fact and therefore, this fact could not have been misapprehended nor overlooked where not presented to the court. Jurists cannot “overlook” facts that are not argued by the adversarial parties. Jurists cannot “misapprehend” facts that are not argued by the parties. Jurists are but blank canvases upon which the parties provide the facts as to the issue in controversy, to paint their respective parts of the picture, upon which the jurist completes the picture as she applies any and all law at her ken as deemed relevant to the legal reasoning to the ultimate completion of the picture, to wit, her decision. It is the zealous advocacy of all parties to present the relevant and material facts to the jurist, make its law-based arguments upon which it desires the jurist to rely upon. However, presiding jurist is not so constrained to limit its legally reasoned decision making merely upon the parties’ cited legal arguments and rebuttals. Rather, jurist is duty-bound in the interest of justice, fairness, and judicial economy to make a fully extensively reasoned decision regardless of parties’ failure to so do. Notwithstanding Plaintiff contended in error at oral argument that this motion is actually for reargument as opposed to motion to renew, clearly, its introduction of a new fact renders this matter beyond the statutory scope of a motion to reargue and rather for a leave to renew.

LEAVE TO RENEW: CPLR 2221(e)

CPLR 2221 (e) (2) requires that a leave to renew, “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination.” Here, court finds it necessary to repeat its findings, supra for this branch of its Decision: Plaintiff conceded that it had not in its underlying motion contended that this instant matter was time-barred by Court of Claims. In Plaintiff’s failing to do so, renders this a new fact being proffered for the first time not previously offered on the prior underlying motion by the aggrieved Plaintiff-Movant, in compliance with the first prong of CPLR 2221 (e) (2). In addition, CPLR 2221 (e) (3) requires that leave to renew “shall contain reasonable justification for the failure to present such facts on the prior motion.” “The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application” (Matter of Miness v Deegan 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399, citing Winograd v Neiman Marcus Group, 11 AD3d 455, 782 NYS 2d 753 [2d Dept 2004]; Seltzer v City of New York, 288 AD2d 207, 732 NYS 2d 364 [2d Dept 2001]; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636, 706 NYS 2d 724 [2d Dept 2000]). The Second Department has also held, “a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion” or if the moving party offers a reasonable excuse for not having presented those facts (Granato v Waldbaum’s, Inc., 289 AD2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962; see also Doviak v Finkelstein & Partners, LLP., 90 AD3d 696, at 700-01 [2d Dept 2011]; Schenectady Steel Co. v Meyer Contracting Corp., 73 AD3d 1013, at 1015 [2d Dept 2010]; Smith v State, 71 AD3d 866, at 867-68 [2d Dept 2010]; Surdio v Levittown Public School District, 41 AD3d 486, at 486-87 [2d Dept 2007]). When Plaintiff was queried by [*6]court for justification as to why it did not provide this fact at the September 10, 2019 argument on the underlying motion, there was no justification offered, in contravention to CPLR 2221 (e) (3). It thereby became apparent to this court that the fact that this matter was time barred in the Court of Claims was not known by Plaintiff until after the oral argument date of the underlying motion on September 10, 2019. Consequently, the fact that the instant action is time barred claim in the Court of Claims is a new fact not offered on the prior underlying motion pursuant to CPLR 2221 (e) (2) although it should have been readily available to Plaintiff during the prior underlying motion. Nevertheless, the introduction of this new fact proffered must also be deemed, as statutorily mandated by CPLR 2221 (e) (2), to change the outcome of the prior underlying decision. Here it does not.

In sum and substance, Plaintiff errs as it now argues that since this case is time-barred (“breach of contract must be brought within (six) 6 months of the accrual date” [affirmation in support at 7, ¶ 20, citing NY CT CL Act §10]) in its proper forum court of competent jurisdiction, to wit, Court of Claims, this court already has jurisdiction and should therefore maintain its jurisdiction of this case towards trial. However, the introduction of this new fact does not change the prior underlying motion’s Decision and Order. Jurisdiction is a very basic tenet of jurisprudence. This Court’s jurisdiction is not a fail-safe, not a fallback and not a court of contingent jurisdiction for Court of Claim cases. Either this Court has jurisdiction, or this Court does not have jurisdiction. There is no hybrid jurisdiction here. There is no contingent jurisdiction here. This Court’s finding of no jurisdiction in the underlying case is final and unalterable unless higher court upon appeal holds otherwise. Until then, this Court cannot reverse its previous decision premised upon this irrelevant new fact of being time-barred and therefore rejected by proper forum court of competent jurisdiction, Court of Claims. Where this Court has no jurisdiction over the subject matter in controversy then the only limited action within its authority is dismissal. Plaintiff fails both prongs to establish leave to renew- new fact not having been available at the time of underlying motion and new fact would change the outcome of the underlying decision.

For the foregoing reasons Plaintiff’s Motion pursuant to CPLR 2221 (d) for an Order granting Leave to Reargue and pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated September 10, 2019, Denying Plaintiff’s Motion for Summary Judgment and Granting Defendant’s Motion to Dismiss for removal to Court of Claims pursuant to the New York State Constitution, Article VI, Section 9, Court of Claims Act Section 9 is hereby DENIED.

The foregoing constitutes the opinion, decision, and order of This Honorable Court.

Dated: September 30, 2020
Brooklyn, New York
SO ORDERED:
SANDRA E. ROPER
Judge of the Civil Court