Rizz Mgt. Inc. v Kemper Ins. Co. (2004 NY Slip Op 50723(U))

Civil Court, Queens County

44207/03

Bernice D. Siegal, J.

The plaintiff, a health care provider, commenced the within action to recover first party benefits under No-Fault for transportation services ( i.e., 29 round trip visits to a medical facility ) provided to plaintiff’s assignor, Oksana Kazinets, from April 16, 2002 through July 18, 2002, for which defendant insurer was billed a total of $900, together with statutory interest and attorney’s fees. Defendant insurer interposed an answer containing affirmative defenses, including the lack of medical necessity for the services rendered and that the assignor did not sustain injuries compensable under No-Fault. Plaintiff brings the instant motion for summary judgment, while defendant cross-moves for summary judgment dismissing the complaint and plaintiff, unbelievably, cross moves for the same relief demanded in the main motion and for additional relief.

For the reasons set forth below, plaintiff’s main motion is denied and its cross motion is considered only as opposition to defendant’s cross and reply to defendant’s opposition, and defendant’s cross motion is denied as premature.

Procedural Posture

In the fairyland of no fault litigation, where the rules of the court and the Civil Practice Law and Rules seem not to apply, plaintiff has submitted, in addition to its original motion for summary judgment, papers denoted as a “reply to opposition ” and ” cross-motion for summary judgment.” Plaintiff’s counsel has, in this and numerous other cases, forced this nonsense upon the court and plaintiff’s adversary despite there being no provision in the CPLR permitting such a “cross-motion” to a cross-motion. Significantly, CPLR § 2215 provides, in pertinent part, that ” a party may serve upon the moving party [ i.e., in this case the court maintains that moving party means plaintiff, and NOT the cross-[*2]moving party – here, the defendant] a notice of cross-motion demanding relief****.” Not incredibly, extensive research finds no previous reported decision on such a procedural ploy. However, the rules of engagement are specifically detailed in the CPLR, and the rules clearly bar the service of supplemental motion papers without leave of court ( CPLR § 2214[c]; see also Rosenman Colin Freund Lewis & Cohen -v- Edelman 165 AD 2nd 533 [ 1st Dept. 1991] ). Plaintiff’s cross to defendant’s cross is nothing more than the impermissible service of supplemental papers.

Moreover, the plaintiff’s ” cross-motion ” even if it were otherwise permissible is, insofar as the notice of same, defective on its face as it fails to adequately specify ” the supporting papers upon which the motion is based,” as mandated by CPLR § 2214(a) (see also Uniform Rules for the New York City Civil Court § 208.10[a]). The rules require that the notice specifically inform the court and the adversary of the contents of the motions, and substantially comply with the form therein, to wit, “Upon the affidavit of —————-, sworn to on —————-, and upon (list supporting papers, if any).” Id. Further, the notice must provide some detail about the underlying matter and nature of the motion, that is “[t]he above entitled action is for (briefly state the nature of action…). This actions (is)(is not) on the trial calender.” Id. Instead, movant merely states:

“That upon the annexed affidavits and supporting affirmation

of ***Esq., dated July 8, 2003, and upon the pleadings and proceedings heretofore had herein, the under signed will move

this Court…for an order directing the entry of Summary Judgment…”

Nowhere is the court advised as to the substance of the underlying action or the actual affidavits annexed. Demanding this disclosure on the notice of motion is not a frivolous desire but rather one which speaks to the practicality of the CPLR and Court rules. An adversary and the court should be able to tell by merely looking at the notice received what is contained within, whether any papers are missing, what is the underlying action and the current relief sought. Without such detail on the notice itself, one may only learn of missing affidavits upon the return date, too late to respond or the court may inadvertently decide the motion on incomplete papers. Any omissions or defects could render the motion a nullity upon the return date.

Moreover, plaintiff’s cross motion demands the same relief as its primary motion, to wit, summary judgment. “Multiple summary judgment motions in the same action should be discouraged in the absence of newly discovered evidence or sufficient cause.” (Public Service Mutual Insurance Co. -v- Windsor Place Corp. 238 AD2d 142, 143 [1st Dept. 1997]). This axiom holds true even if a prior summary judgment were denied on other than substantive grounds. (cf. Lefreniere -v- Capital District Transportation Authority, 105 AD2d 517 [3rd Dept 1984]). The cross motion appears to be an attempt to cure the defects in the primary motion, and as such should not be entertained by the court. Additionally, plaintiff has, in its ” cross-motion,” improperly attempted to raise new issues for the first time (see Klimis -v- Lopez, 290 Ad 2nd 538 [ 2nd Dept. 2002] ). Therefore, in view of the above, the court will deem and consider this latter submission from plaintiff ONLY as a reply to defendant’s opposition and as opposition to defendant’s cross-motion, but NOT as a [*3]separate “cross-motion” to defendant’s cross-motion.

As to the notice of plaintiff’s main motion, the movant has wholly failed to properly apprise the court of the papers annexed, etc. in violation of the court rules. Additionally, plaintiff’s “supplement to main motion” served on October 24, 2003 ( three days before the October 27, 2003 return date) is, as is the “cross motion,” nothing more than the impermissible service of supplemental papers without leave of court. Furthermore, even if the court were to consider this supplement to the main motion, the affirmation is of the attorney who is without the requisite personal knowledge to lay a foundation for the hearsay document (e.g., the purported assignment of benefits) annexed thereto. It is well settled that a proponent of a motion must come forth with facts in admissible form, either by some one with personal knowledge of the facts or by affirmation with admissible documentary proof. (See Zuckerman -v- City of New York, 49 NY2d 557). Accordingly, the assignment of benefits is not properly before the court.

Findings of Fact and Conclusions of Law

The plaintiff’s motion is denied, in the first instance, because plaintiff has failed to establish a prima facie case for entitlement to recover unpaid benefits under No-Fault. It is incumbent for plaintiff to prevail in a summary judgment motion in a No-Fault action to demonstrate that it had submitted complete proof of claim ( see S& M Supply, Inc. -v- GEICO Insurance, 2003 WL 21960343 [ N.Y. Sup. App Term 2003]), with the assignment of benefits being a necessary component of such complete proof of claim ( see A.B. Medical Services, PLLC -v- Progressive Insurance, 2003 WL 21005006 [ N.Y. Sup. App. Term 2003; Vinings Spinal Diagnostic, P.C. -v- Liberty Mutual Insurance Company 186 Misc 2nd 287). Plaintiff’s papers initially submitted on its motion for summary judgment were devoid of any assignment. While the plaintiff attempted to correct such omission by annexing a copy of the assignment to its October 24, 2003 ” supplement to main motion”, such ” supplement ” has been ruled, above, by the court to be a nullity which will not be considered because, among other things, it was impermissibly served without leave of court. Plaintiff’s motion is further denied because it is defective for the reasons stated above, while the cross-motion by defendant is denied as premature, as follows:

The defendant’s opposition and cross-moving papers include, among other things, defendant’s discovery demands dated January 31, 2003; defendant’s motion to preclude submitted on September 3, 2003 and the stipulation by the parties, “so-ordered ” by the court on September 3, 2003, wherein upon defendant’s withdrawal of its motion to preclude, plaintiff agreed to be precluded from “offering evidence at time of trial ” unless it provided complete verified responses to defendant’s discovery demands within 60 days of the date of the stipulation.”

With respect to the stipulation signed by the parties and “so-ordered” by the court, conditionally precluding the plaintiff in this action, as this Court has recently stated, “[I]t has long been held that parties may, by stipulation, chart their own procedural course in a case, which the courts are bound to enforce except for certain limited circumstances not even alleged to be present *** Nishman v. DeMarco, 76 AD2d 360 (2nd Dept. 1980); Siltan v. City of New York, 300 AD2d 298 [2nd Dept. 2002]; In re Evelyn P., 135 AD2d 716 [2nd Dept. [*4]1987].” (Hoss Medical Services, P.C. -v- GEICO, ___Misc 3d___, 2004 NY Slip Op. 24213 (N.Y. Civ Ct). Such a “so-ordered” stipulation will function as a conditional order of preclusion (Siltan -v- City of New York, supra) and, in the event of noncompliance with same, plaintiff may be subject to dismissal if preclusion will prevent plaintiff from making a prima facie case (Jenkinson -v- Naccarato, 286 AD 2nd 420 [ 2nd Dept. 2001]).

However, the plaintiff, by virtue of CPLR § 3214(b) and plaintiff’s notice of motion for summary judgment, served on July 8, 2003 and made returnable on October 27, 2003, has escaped, at least temporarily, the force of the September 3, 2003 conditional preclusion order, as CPLR § 3214 (b) provides that service of a notice of motion for summary judgment “stays disclosure until determination of the motion***.”

Accordingly, in view of the above statutory stay, the cross-motion by defendant for dismissal is denied without prejudice as follows: In view of the court’s now having determined plaintiff’s motion for summary judgment and denying same, the stay of disclosure, pursuant to CPLR § 3214(b), is now vacated and the terms of the ” so-ordered” stipulation are now revived; the only modification being that plaintiff’s time to serve complete verified responses to defendant’s discovery demands is extended to 60 days from service upon plaintiff of a copy of this order with notice of entry. In the event of noncompliance by plaintiff, defendant is given leave to renew its cross-motion for dismissal.

_________________________

DATE: June 30, 2004 BERNICE D. SIEGAL

J.C.C.