Reported in New York Official Reports at Concord Direct, Inc. v Ameriprise Ins. Co. (2022 NY Slip Op 51272(U))
| Concord Direct, Inc. v Ameriprise Ins. Co. |
| 2022 NY Slip Op 51272(U) [77 Misc 3d 135(A)] |
| Decided on December 2, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 2, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-523 Q C
against
Ameriprise Insurance Company, Appellant.
Callinan & Smith, LLP (Matthew J. Smith and Dara Goodman of counsel), for appellant. Law Offices of Jonathan B. Seplowe, P.C. (Alan M. Elis of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered July 20, 2021. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had procured the subject insurance policy by making a material misrepresentation as to the garaging of one of the three vehicles covered under the insurance policy, and as to the address of one of the two drivers covered under the policy.
“A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented. To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have [*2]issued the same policy if the correct information had been disclosed in the application” (Interboro Ins. Co. v Fatmir, 89 AD3d 993, 994 [2011] [internal quotation marks and citations omitted]).
Upon a review of the record, we find that defendant failed to establish as a matter of law that it would not have issued the policy in question, as neither the examination under oath testimony of the assignor nor the declaration page of the insurance policy establish that the assignor made a misrepresentation on her application for insurance. In any event, defendant did not demonstrate that the purported misrepresentation was material, as the underwriting eligibility guidelines included with its motion papers fail to show that defendant “would not have issued the same policy if the correct information had been disclosed” (id. [internal quotation marks omitted]; see also e.g. Alignment Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50994[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Commitment Care, P.T., P.C. v Travelers Home & Mar. Ins. Co., 64 Misc 3d 136[A], 2019 NY Slip Op 51157[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; cf. Varshavskaya v Metropolitan Life Ins. Co., 68 AD3d 855 [2009]).
Defendant’s remaining contention lacks merit.
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Insurance Company, Respondent.
Law Offices of Gabriel & Moroff, P.C. (Jason Moroff and Matthew Sledzinsky of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Claudia Lanzetta, J.), dated June 15, 2021. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first, fifth, and seventh causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, the claims underlying the fifth and seventh causes of action were timely denied, as these claims were denied within 30 days of defendant’s receipt thereof (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Plaintiff also asserts that the claim underlying the first cause of action was not timely denied. However, an initial EUO had been [*2]scheduled before defendant received this claim; therefore, defendant’s time to pay or deny this claim was tolled when this claim was received (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Further, as defendant timely scheduled a follow-up EUO after plaintiff failed to appear for the initial EUO, defendant’s time to pay or deny the claim remained tolled (see 11 NYCRR 65-3.6 [b]). Consequently, defendant’s subsequent denial of this claim, which was issued within 30 days of the second nonappearance, was timely (see Island Life Chiropractic Pain Care, PLLC, 74 Misc 3d 17; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at Spring Rehab, P.T., P.C. v Hereford Ins. Co. (2022 NY Slip Op 51270(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Hereford Insurance Co., Respondent.
Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for appellant. Goldberg, Miller & Rubin, P.C. (Harlan R. Schreiber and Ruth Nazarian of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered December 11, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action is premature, as plaintiff failed to respond to defendant’s timely requests for additional verification. By order entered December 11, 2019, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Defendant’s cross motion should have been denied. With respect to the claim for date of service November 9, 2017, upon which the fourth cause of action of the complaint was based, the letters defendant sent seeking additional verification were incorrectly addressed to another [*2]provider, and, thus, the parties agree that defendant did not establish its entitlement to summary judgment dismissing that cause of action. With respect to the remaining claims, defendant failed to establish, prima facie, that it properly requested additional verification, since defendant’s letters to plaintiff, which were submitted in support of its cross motion, merely stated that defendant was waiting for specified documents without actually requesting verification from plaintiff (see Clear Water Psychological Servs., P.C. v Hereford Ins. Co., 68 Misc 3d 127[A], 2020 NY Slip Op 50847[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Plaintiff’s motion for summary judgment was properly denied, as the proof submitted by plaintiff failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at Greenway Med. Supply Corp. v Repwest Ins. Co. (2022 NY Slip Op 51269(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Repwest Insurance Company, Appellant.
Husch Blackwell, LLP (Matthew A. Sarles of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered September 4, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint on the ground that there was an issue of fact as to whether the three-year limitation period of CPLR 214 (2) was applicable.
A review of the record reveals that defendant demonstrated, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc.; that the vehicle was self-insured by U-Haul, Inc.; that defendant did not insure the subject vehicle; and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. Thus, the record establishes that there is no coverage for no-fault benefits from defendant as defendant had not issued an automobile insurance policy which would cover [*2]the underlying accident (see Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co., 69 Misc 3d 144[A], 2020 NY Slip Op 51379[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Parisien v Gallagher Bassett Servs., 66 Misc 3d 128[A], 2019 NY Slip Op 52040[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). We note that, while the six-year statute of limitations for contracts is applicable to no-fault claims against an insurer (see CPLR 213 [2]), to the extent any causes of action accrued against the self-insurer upon plaintiff’s submission of bills in 2010, the three-year statute of limitations set forth in CPLR 214 (2) would apply (see Contact Chiropractic, P.C. v New York City Tr. Auth., 31 NY3d 187 [2018]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51206[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 73 Misc 3d 142[A], 2021 NY Slip Op 51205[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; S & R Med., P.C. v NYCTA-MABSTOA, 61 Misc 3d 138[A], 2018 NY Slip Op 51582[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))
| Spring Rehab PT, P.C. v Nationwide Affinity Ins. Co. |
| 2022 NY Slip Op 51268(U) [77 Misc 3d 135(A)] |
| Decided on December 2, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 2, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-893 K C
against
Nationwide Affinity Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Law Offices of Marina Josovich, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered June 9, 2020. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court granting plaintiff’s motion for summary judgment and denying defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff’s assignor had failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office [*2]practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, defendant submitted affidavits by its attorneys who were scheduled to conduct the EUOs, as well as certified transcripts of the attorneys’ statements of the nonappearances, which were sufficient to establish the assignor’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]), and plaintiff failed to raise a triable issue of fact in opposition to defendant’s cross motion, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 51267(U))
| American Kinetics Lab, Inc. v GEICO Gen. Ins. Co. |
| 2022 NY Slip Op 51267(U) [77 Misc 3d 135(A)] |
| Decided on December 2, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 2, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-695 K C
against
GEICO General Insurance Company, Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), entered November 14, 2019. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice.
In this action by a provider to recover assigned first-party no-fault benefits, in an order dated November 14, 2019, insofar as appealed from and as limited by the brief, the Civil Court denied defendant’s cross motion for summary judgment dismissing the complaint.
The proof submitted by defendant in support of its cross motion for summary judgment established that defendant had timely mailed its initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that defendant had not received the requested verification. Plaintiff raised no triable of fact in opposition. Thus, the action is premature and the complaint must be dismissed without prejudice (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; AOM [*2]Med. Supply, Inc. v Hereford Ins. Co., 69 Misc 3d 142[A], 2020 NY Slip Op 51366[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted without prejudice.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at Medical Supply of NY Corp. v Nationwide Ins. Co. (2022 NY Slip Op 51253(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Ins. Co., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated January 18, 2022. The order denied defendant’s motion for, in effect, summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.
Plaintiff (Medical Supply) commenced this action to recover assigned first-party no-fault benefits, under claim number 757285-GH, for medical services that it had provided to its assignor as a result of injuries which, the complaint stated, had been sustained in an automobile accident on August 24, 2018. After Medical Supply commenced this action, defendant (Nationwide) answered and, separately, commenced a declaratory judgment action in the Supreme Court, Onondaga County, against Medical Supply, alleging that Nationwide had no duty to pay no-fault benefits to Medical Supply under claim number 757285-GH with respect to an accident which had occurred on August 22, 2018. In an order entered on March 9, 2020, the Supreme Court, upon Medical Supply’s default in appearance in the action, granted an unopposed motion by Nationwide for summary judgment, declaring that Nationwide was not obligated to provide coverage or reimbursements for any and all no-fault related services submitted by [*2]Medical Supply under claim number 757285-GH, with date of loss August 22, 2018.
Nationwide, thereafter, moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. The Civil Court, in an order entered on January 18, 2022, denied Nationwide’s motion, finding that an issue of fact exists as to when the accident occurred.
Res judicata, or claim preclusion, is invoked when a party seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same transaction or series of transactions which were raised or could have been raised in a prior proceeding between the same parties or those in privity (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; see also Watts v Swiss Bank Corp., 27 NY2d 270 [1970]).
Nationwide established, prima facie, that Medical Supply sought in this action to recover for medical supplies furnished to its assignor as a result of injuries allegedly sustained by its assignor in the August 22, 2018 accident that was the subject of the Supreme Court declaratory judgment action. All of the documentary evidence created by persons with personal knowledge of the accident alleged that the accident occurred on August 22, 2018. Medical Supply’s only evidence that the accident occurred on August 24, 2018 was the allegation in its own complaint, which was not based upon personal knowledge and which contradicts the documents created and executed by the assignor himself, the assignor’s counsel’s letter of representation, and the police accident report. Therefore, Medical Supply’s opposition was wholly insufficient to rebut Nationwide’s prima facie showing. Consequently, the instant action is barred by res judicata.
Accordingly, the order is reversed and defendant’s motion for, in effect, summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))
| First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. |
| 2022 NY Slip Op 51252(U) [77 Misc 3d 133(A)] |
| Decided on December 2, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 2, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-790 K C
against
Nationwide Affinity Insurance Company of America, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered December 30, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment dismissing the complaint, the affidavits of defendant’s claim specialist and mailing manager were sufficient to establish, prima facie, that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In opposition, plaintiff failed to raise a triable issue of fact.
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at Healthwise Med. Assoc., P.C. v Nationwide Ins. (2022 NY Slip Op 51251(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Ins. and Harleysville Worcester Insurance Company, Respondents.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondents.
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 7, 2021. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint, denied plaintiff’s cross motion for summary judgment, and denied, as moot, plaintiff’s separate motion to dismiss the affirmative defenses.
ORDERED that, on the court’s own motion, the caption is amended to reflect the addition of Harleysville Worcester Insurance Company as a party defendant, and the caption has been amended accordingly; and it is further,
ORDERED that the order is affirmed, with $25 costs.
Healthwise Medical Associates, P.C. (Healthwise) commenced this action against defendant Nationwide Ins. (Nationwide) to recover assigned first-party no-fault benefits for medical services provided to its assignor, Reynaldo Rosa, as a result of injuries Rosa allegedly sustained in an automobile accident on July 6, 2016, under claim number 655439-GD. Harleysville Worcester Insurance Company (Harleysville) appeared in the action by serving and filing an answer in which it characterized itself as having been incorrectly sued as Nationwide, thereby agreeing that the allegations in the complaint were properly asserted against it.
Before Healthwise commenced this action, Harleysville had commenced a declaratory judgment action in Supreme Court, Nassau County, against Healthwise, among other providers, and its assignor, Rosa, alleging that Harleysville had no duty to pay no-fault benefits to the named defendants therein, as Rosa was not an eligible injured person pursuant to the no-fault regulations, and, thus, not covered under the insurance policy. In an order dated June 20, 2018 and entered August 29, 2018, the Supreme Court, upon defaults in appearing in the action by, insofar as is relevant here, both Rosa and Healthwise, granted an unopposed motion by Harleysville for summary judgment, declared “that Harleysville is not required to provide insurance coverage to [Rosa and Healthwise] for any claims arising out of the date of loss of July 6, 2016, Nationwide claim number 655439-GD.”
Harleysville thereafter moved in the Civil Court for, in effect, summary judgment dismissing the complaint on the ground that the instant action is barred by virtue of the order in the declaratory judgment action. Healthwise cross-moved for summary judgment and to dismiss Harleysville’s affirmative defenses. Healthwise also separately moved to dismiss Harleysville’s affirmative defenses. By order dated October 7, 2021, the Civil Court granted Harleysville’s motion, denied Healthwise’s cross motion for summary judgment, and also denied, as moot, Healthwise’s separate motion to dismiss the affirmative defenses. The court stated,
“Defendant has presented the Declaratory Judgment Order of the Supreme Court, County of Nassau, dated June 20, 2018, under Index Number 611998/2017, which declared that HARLEYSVILLE, a subsidiary company of NATIONWIDE and the underwriter of the subject policy of insurance, has no obligation to provide No-Fault reimbursement to Plaintiff with regard to the claims under NATIONWIDE claim number 655439-GD and the date of accident of July 6, 2016, at issue.”
Since Harleysville voluntarily appeared in this action and the Civil Court treated Harleysville Worcester Insurance Company as a proper defendant but the caption was not amended accordingly, on the court’s own motion, we amend the caption to reflect the addition of Harleysville Worcester Insurance Company as a party defendant.
On appeal, the only issue raised by Healthwise with respect to so much of the Civil Court’s order as granted Harleyville’s motion is whether the Supreme Court order entered August 29, 2018 should have res judicata effect on this action, thereby warranting the dismissal of the complaint herein. “Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913 [2016]; see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in determining that Harleysville’s declaratory judgment order has res judicata effect on this action, as Harleysville proffered sufficient evidence to support its contention that it is “the proper insurer” (cf. Quality Health Supply Corp. v Hertz Co., 68 Misc 3d 131[A],[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2020]). Under the circumstances presented, the Civil Court correctly granted Harleysville’s motion and, in effect, dismissed the complaint in its entirety, as any judgment in favor of Healthwise in this action would destroy or impair rights or interests established by the order in the declaratory judgment action (see Schuylkill Fuel Corp., 250 NY at 306-307; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: December 2, 2022
Reported in New York Official Reports at AKNY Physical Therapy, PLLC v Lancer Ins. Co. (2022 NY Slip Op 51249(U))
| AKNY Physical Therapy, PLLC v Lancer Ins. Co. |
| 2022 NY Slip Op 51249(U) [77 Misc 3d 133(A)] |
| Decided on December 2, 2022 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 2, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-686 K C
against
Lancer Insurance Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. The Chartwell Law Offices, LLP, for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered September 27, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint, and denying plaintiff’s cross motion for summary judgment as untimely pursuant to a schedule which the parties had stipulated to more than a year earlier.
On appeal, plaintiff does not argue that defendant’s motion was insufficient to make a prima facie showing of defendant’s entitlement to summary judgment. Moreover, plaintiff does not assert that its cross motion, which was also opposition to defendant’s motion, raised any triable issues of fact. Instead, plaintiff merely asserts that the court should not have denied plaintiff’s cross motion as untimely and, therefore, that both defendant’s and plaintiff’s motions should be remitted to the [*2]Civil Court for consideration. However, plaintiff does not argue, much less establish, that its cross motion was timely under the parties’ schedule, or set forth a reasonable excuse for its failure to cross-move during the seven months it had to do so (see Pavlova v 21st Century Ins. Co., 75 Misc 3d 127[A], 2022 NY Slip Op 50363[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Consequently, we find no basis to disturb the Civil Court’s refusal to review plaintiff’s papers.
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022