Post Traumatic Med. Care, P.C. v Progressive Cas. Ins. Co., 2008 NY Slip Op 51954(U) (App. Term, 2nd)
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that plaintiffs’ assignors breached the cooperation clause of the insurance policy by failing to attend duly scheduled independent medical examinations (IMEs). The court below denied the motion, holding that an issue of fact remained as to the mailing and receipt of the examination notices. This appeal by plaintiff ensued.
Since defendant raised no issue in the court below or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.
On appeal, plaintiff contends, inter alia, that defendant failed to create a triable issue of fact by competent proof that the assignors failed to attend the IMEs, and we agree. While defendant denied the claims based upon the assignors’ failures to appear for scheduled IMEs, defendant did not submit evidence in admissible form from anyone with personal knowledge of the assignors’ nonappearances (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Vista Surgical Supplies, Inc. v Autoone Ins. Co., 20 Misc 3d 133[A], 2008 NY Slip Op 51460[U] [App Term, 2d & 11th Jud Dists 2008]; Vista Surgical Supplies, Inc. v New York Cent. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50165[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order is reversed, plaintiff’s motion for summary [*2]judgment is granted and the matter remanded to the court below for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law ยง 5106 (a) and the regulations promulgated thereunder.
Ocean Diagnostic Radiology, P.C. v MVAIC, 2008 NY Slip Op 51956(U)
Because plaintiff failed to submit opposition to defendant’s cross motion, the order, which granted defendant’s cross motion to dismiss on the ground that the action is barred by the statute of limitations, and denied as moot plaintiff’s motion for summary judgment, was entered on default. No appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]; Richmond Radiology, P.C. v State Farm Ins. Co., 15 Misc 3d 142[A], 2007 NY Slip Op 51074[U] [App Term, 2d & 11th Jud Dists 2007]; Ava Acupuncture P.C. v Greyhound Lines, Inc., 14 Misc 3d 141[A], 2007 NY Slip Op 50356[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the appeal is dismissed.
Citibank (SD), N.A. v Henry, 2008 NY Slip Op 51959(U)
In this action for breach of a credit card agreement and an account stated, the court below denied defendant’s motion to vacate a default judgment. In support of the motion, defendant was required to establish both a meritorious defense to the action and a reasonable excuse for the default (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Since defendant failed to offer a reasonable excuse for his default and merely made a conclusory allegation concerning a possible meritorious defense, the court below properly denied his motion. Insofar as the issues raised by defendant in his brief on appeal, regarding the alleged impropriety of execution of the judgment, involve matters dehors the record, they cannot be reviewed on appeal.