APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated April 28, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated April 28, 2009, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover assigned first-party no-fault benefits, defendant established prima facie that it mailed the notices of the independent medical examinations (IMEs) to the assignors and that the assignors failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. v General Assurance Co., 10 Misc 3d 18, 20 [2005]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff’s failure to comply with a condition precedent to coverage (see id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: July 21, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 31, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 31, 2009, reversed, with $10 costs, defendant’s motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

As Civil Court correctly concluded, defendant made a prima facie showing both that two separate requests for an independent medical examination (“IME”) of plaintiff’s assignor were duly mailed to the assignor and that the assignor failed to appear for the examination on either of the dates scheduled pursuant to the requests. In opposition, plaintiff failed to raise a triable issue. Therefore, defendant was entitled to summary judgment dismissing the complaint (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that, contrary to Civil Court’s determination, defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an IME provision (see 11 NYCRR 65-1.1),since the policy “shall be construed as if such provision[] [was] embodied therein” (Insurance Law § 5103[h]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]D
ecision Date: May 24, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

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

Per Curiam.

Order (Arlene P. Bluth, J.), dated June 4, 2008, modified to (1) grant summary judgment to plaintiff Carnegie Hill Orthopedic Services, P.C., on the second and third causes of action seeking the principal sum of $9,118.76, and the Clerk is directed to judgment accordingly; and (2) grant partial summary judgment to plaintiffs on the issue of liability as to their first cause of action, and the matter remanded for apportionment between plaintiffs of the damages thereon; and, as so modified, order affirmed, with $10 costs.

Plaintiffs established their entitlement to partial summary judgment on the issue of liability on the first cause of action, which seeks recovery of overdue assigned first-party no-fault benefits in the principal amount of $3,050.74 (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Additionally, plaintiff Carnegie Hill Orthopedic Services, P.C., (Carnegie) established its prima facie entitlement to judgment as a matter of law on the second and third causes of action, which seek recovery of overdue assigned first-party no-fault benefits in the principal sum of $9,118.76. Defendant’s submissions before Civil Court established its receipt of the respective claims (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]; Devonshire Surgical Facility v GEICO, 16 Misc 3d 130[A], 2007 NY Slip Op 51308[U][2007]), and defendant did not dispute that $9,118.76 remained overdue on the claims of Carnegie upon which the second and third causes of action are based. In opposition, defendant, which failed to timely deny any of the claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; New York & Presbyt. Hosp. v Progressive Cas. Ins., 5 AD3d 568 [2004]) and was precluded under a so-ordered stipulation from offering certain evidence at trial based on its failure to respond to plaintiffs’ interrogatories (see Wilson v Galicia Contr. & [*2]Restoration Corp., 10 NY3d 828, 830 [2008]), failed to raise any triable issue.

Although defendant does not dispute the total amount overdue on the first cause of action, we remand the matter to Civil Court for an apportionment of the amount owed to each respective plaintiff on that cause of action, since plaintiffs failed to establish such apportionment in their motion papers.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 17, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated actions, defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated February 11, 2009, which granted plaintiff’s motion to restore the actions to the calendar.

Per Curiam.

Order (Ben R. Barbato, J.), dated February 11, 2009, reversed, without costs, and motion denied.

Plaintiff commenced these actions to recover first-party no-fault benefits in March 2003. Plaintiff’s assignors were injured in the same August 2001 motor vehicle accident, which [*2]defendant asserts was staged, and the actions were therefore consolidated for trial in December 2004. On January 6, 2006, the actions (each of which sought approximately $1300) were marked off the trial calendar, and plaintiff moved to restore them in January 2009.

Because plaintiff moved to restore the actions more than one year after they were stricken from the calendar, plaintiff was required to demonstrate (a) the merits of its claims; (b) a lack of prejudice to defendant; (c) a lack of intent to abandon the action; and (d) a reasonable excuse for the delay in moving to restore the actions (Kaufman v Bauer, 36 AD3d 481, 482 [2007]). All four requirements must be met before an abandoned action can be restored (id.).

Even assuming, arguendo, that plaintiff satisfied the remaining criteria, it failed to offer a reasonable excuse for its three-year delay in seeking to restore the actions (see generally Okun v Tanners, 11 NY3d 762 [2008]). Plaintiff offered no excuse for its prior counsel’s failure to move to restore the actions during the 19-month period between the date the cases were marked off and the date prior counsel was relieved, and failed to adequately explain its substituted counsel’s 17-month delay in moving to restore. Accordingly, plaintiff’s motion should have been denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 02, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: January 14, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Plaintiff appeals from a judgment of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about June 20, 2008, after a nonjury trial, in favor of defendant dismissing the complaint.

Per Curiam.

Judgment (Julia I. Rodriguez, J.), entered on or about June 20, 2008, reversed, with $30 costs, complaint reinstated, and judgment directed in favor of plaintiff in the principal sum of $3,072.08.

Civil Court erred in dismissing this action by plaintiff to recover first-party no-fault benefits at the close of the trial on the ground that plaintiff failed to file proof of service of the summons and complaint on defendant. At no point in the action did defendant assert that plaintiff failed to file an affidavit of service and, therefore, defendant waived any objection on that ground (see generally Ballard v HSBC Bank USA, 6 NY3d 658 [2006]; Harris v Niagara Falls Bd. of Educ., 6 NY3d 155 [2006]). In any event, the failure to file an affidavit of service under the former commencement-by-service system that governed when this action was commenced (see former CCA 409) did not warrant dismissal of the action; rather, such failure was an irregularity that was correctable nunc pro tunc (see former CCA 411; see also Lumberman’s Mut. Cas. Co. v Temco Serv. Indus., 209 AD2d 296 [1994]).

With respect to the merits of plaintiff’s action, as Civil Court properly recognized, plaintiff established a prima facie case to recover the first-party no-fault benefits it sought in its complaint. Since defendant failed to adduce any evidence on the issue of the medical necessity of the services rendered to plaintiff’s assignor, defendant’s only purported defense at trial, we direct judgment in plaintiff’s favor for the principal amount sought in the complaint.

We do not pass upon plaintiff’s request for statutory interest and attorneys’ fees, issues not reached below. Our disposition of this appeal is without prejudice to renewal of these issues in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 11, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Respondent Countrywide Insurance Company appeals from an order of the Civil Court of the City of New York, New York County (Eileen A. Rakower, J.), dated April 27, 2006, which granted the petition to vacate an arbitration award and awarded petitioner Preferred Medical Imaging, P.C. unpaid no-fault benefits in the principal sum of $912.

Per Curiam.

Order (Eileen A. Rakower, J.), dated April 27, 2006, affirmed, without costs.

Civil Court properly vacated the arbitration award issued in an arbitration proceeding commenced by the provider, Preferred Medical Imaging, P.C., to recover first-party no-fault benefits, since the court correctly concluded that the award was not “supported by a reasonable hypothesis and was … contrary to what could be fairly described as settled law” (Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762, 763 [2005], citing Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]). The arbitrator’s conclusion, which was sustained by the master arbitrator, that the provider was required to establish the medical necessity of the services rendered was contrary to settled law (see e.g. Mary Immaculate Hosp v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Metro. Radiological Imaging, P.C. v Country-Wide Ins. Co., 19 Misc 3d 130[A] [2008]).Respondent-appellant Countrywide Insurance Company’s remaining contentions are without merit.

We note respondent-appellant’s three and a half year delay in perfecting this appeal.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 18, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated May 17, 2007, which denied its motion to dismiss plaintiff’s action as time barred.

Per Curiam.

Order (Ben R. Barbato, J.), dated May 17, 2007, affirmed, without costs.

Assuming, without deciding, that defendant qualifies as a self-insurer, plaintiff’s action for first party no-fault benefits is governed by a six-year statute of limitations (see Richard Denise, MD, P.C. v New York City Trans. Auth., appeal numbered 07-308, decided herewith), and was thus timely commenced.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 22, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Julia L. Rodriguez, J.), entered October 16, 2007, which denied its motion to vacate a stipulation of settlement and to dismiss the action.

Per Curiam.

Order (Julia L. Rodriguez, J.), entered October 16, 2007, affirmed, with $10 costs.

Civil Court properly denied defendant’s motion to vacate a 2002 stipulation settling this action for first party no-fault benefits. Defendant failed to proffer any competent evidence in support of its belated claim that the stipulation was unenforceable because it was “premised on fraud.” “Stipulations of settlement are favored by the courts and are not lightly cast aside” (Hallock v State of New York, 64 NY2d 224, 230 [1984]). While defendant, five years later, is intent on revisiting the propriety of a stipulation entered into upon the advise of counsel, it has failed to demonstrate any basis to excuse it from complying with the terms to which it assented, and may not avoid its enforceability by claiming, in conclusory fashion, that plaintiff’s underlying no-fault claims “appear to be the product of fraud.” As the motion court properly noted, the information regarding plaintiff’s corporate status was available to defendant when the stipulation was entered into in 2002.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 14, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Sharon A.M. Aarons, J.), entered November 28, 2007, which, upon preclusion of defendant’s expert testimony, directed a verdict in favor of plaintiff.

Per Curiam.

Appeal from order (Sharon A.M. Aarons, J.), entered November 28, 2007, is deemed an appeal from a judgment (same court and Judge), entered August 18, 2008, and so considered, judgment reversed, with $25 costs, and matter remanded for further proceedings.

In this action to recover first party no-fault benefits, defendant’s medical expert should have been permitted to testify, since the expert witness “would be subject to full cross-examination and his testimony as to lack of medical necessity would be limited to the basis for denial set forth in the original peer review report” (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]; see also Spruce Med. and Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [2007]). Nor is defendant’s expert precluded from testifying because his opinion may have been based, at least in part, on his review of the assignor’s medical records prepared by plaintiff (Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [2007]) or medical records prepared by other physicians and submitted to defendant, relating to treatment provided to the assignor for injuries arising from the same motor vehicle accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: July 13, 2009