A few new decisions came out, but only two are worth mentioning. First, out of the Appellate Term, 2nd Department is A.M. Medical Services, P.C. v Allstate Ins., Co.2007 NYSlipOp 51312(U), which involves a motion to renew.
CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon “new facts not offered on the prior motion that would change the prior determination” or must show “that there has been a change in the law that would change the prior determination.” Furthermore, the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff, which purportedly represented such changes, were neither dispositive of the issue of the sufficiency of plaintiff’s officer’s affidavit nor did they represent changes in the decisional law. Accordingly, the motion was properly denied.
We note that where there is no change in the decisional law, but a party is of the opinion that the motion court overlooked or misapprehended existing law, the proper vehicle is a motion to reargue (CPLR 2221 [d]). In the instant case, however, plaintiff’s motion, to the extent that it could be deemed to be seeking reargument, was untimely made.
Next, is a case from the Appellate Term, 1st Department involving alleged fraudulent billing and the preclusion of that defense when there is a late denial. Devonshire Surgical Facility v GEICO, 2007 NYSlipOp 51308(U):
Civil Court properly granted summary judgment in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. (Carnegie). Defendant is precluded from asserting the defense of provider fraud based on fraudulent billing practices since it failed to timely deny Carnegie’s claims within the 30-day prescribed statutory period (see 11 NYCRR 65-3.8[c]; Valley Psychological, P.C. v Liberty Mut. Ins. Co., 30 AD3d 718 [2006]). Defendant’s challenge to the sufficiency of Carnegie’s prima facie case is unavailing inasmuch as defendant’s documentary submissions established its receipt of Carnegie’s claims.