Lots of new decisions.

Great Wall Acupuncture, P.C. v Geico Ins. Co., 2009 NY Slip Op 52374(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, the matter went to trial on plaintiff’s six claims with respect to, inter alia, the issue of the rate of reimbursement for acupuncture treatments provided by licensed acupuncturists. In its decision after trial, the Civil Court determined that, in accordance with Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture sessions, and that the appropriate rate was $29.30 per session. Defendant had reimbursed plaintiff for two of the claims at the rate of $29.30. The Civil Court determined that plaintiff was also entitled to reimbursement on the remaining claims, two of which defendant had denied on the ground that plaintiff had failed to timely submit the claims, and two of which defendant had denied on the basis of lack of medical necessity. Accordingly, the Civil Court granted judgment to plaintiff in the sum of $322.30. However, judgment was entered on May 9, 2008 in the principal sum of $1,718.40. Plaintiff appeals from the judgment.

Since the judgment awarded plaintiff the full balance which it had requested, $1,718.40, plaintiff is not aggrieved thereby, and the appeal must be dismissed (see CPLR 5511; Lowery v Lamaute, 40 AD3d 822 [2007]).

Midwood Med. Equip. & Supply, Inc. v USAA Cas. Ins. Co., 2009 NY Slip Op 52379(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to reargue its prior motion for summary judgment dismissing the complaint. The prior motion, which was predicated on the ground that neither defendant’s insured nor defendant’s insured’s vehicle was involved in the subject accident, had been denied with leave to renew upon proper papers, on the ground that a certificate of conformity was lacking. In support of its reargument motion, defendant submitted the affidavit of its insured, in which the affiant averred that, although she drove the subject vehicle on the day of the alleged accident, at no time on that day did she “strike a pedestrian while driving.” She further stated that even though her vehicle “was stopped at the alleged accident scene along with several other vehicles and pedestrians,” “[a]t no time did [her] vehicle come into contact with Catherine Almanzar on that day.” In opposition to the motion, plaintiff submitted the affirmation of its attorney, in which the attorney argued, inter alia, that defendant’s affidavit was conclusory and did not establish defendant’s prima facie entitlement to judgment as a matter of law and that the “motion should not be heard prior to defense counsel’s adherence to the CPLR disclosure rules.” The Civil Court granted leave to reargue and, upon reargument, awarded defendant summary judgment dismissing the complaint. The instant appeal by plaintiff ensued.

Defendant established its prima facie entitlement to judgment by showing that its insured’s vehicle was not involved in an accident in which plaintiff’s assignor was allegedly injured. Consequently, in order to defeat defendant’s motion for summary judgment dismissing the complaint, plaintiff had to set forth facts sufficient to demonstrate a triable issue of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Mid Atl. Med., P.C. v Harleysville Worcester Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U] [App Term, 2d, [*2]11th & 13th Jud Dists 2009]). Plaintiff, however, failed to rebut the assertions contained in defendant’s insured’s affidavit. Accordingly, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Mid Atl. Med., P.C., 23 Misc 3d 132[A], 2009 NY Slip Op 50736[U]).

A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 2009 NY Slip Op 52383(U) (App. Term, 2nd, 2009)

Defendant’s cross motion for summary judgment and opposition to plaintiff’s motion for summary judgment were premised upon defendant’s “founded belief” that the alleged injuries of plaintiff’s assignor did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), but were sustained, if at all, in a staged accident. Upon a review of the record, we find that while defendant demonstrated that it possessed such “founded belief” so as to defeat plaintiff’s motion for summary judgment, it failed to submit sufficient evidence in admissible form, in support of its cross motion, to establish, as a matter of law, that the alleged injuries did not arise from an insured incident so as to warrant dismissal of the complaint. Consequently, neither plaintiff nor defendant is entitled to summary judgment [*2]upon their respective motion and cross motion seeking such relief (see Zuckerman v City of New York, 49 NY2d 557 [1980], and the amended order is modified accordingly.

New York Cent. Mut. Ins. v McGee, 2009 NY Slip Op 52385(U) (Sup. Ct. Kings County, 2009)

Here, there may be a question as to whether, even as a pleading, the Complaint sufficiently alleges “fraudulent incorporation” (see Autoone Ins. Co. v Manhattan Hgts. Med., [*7]P.C., 2009 NY Slip Op 51662 [U], at * 4; CPLR 3013; CPLR 3016 [b]; CPLR 3211 [a] [7]); and, even if it does, there is no evidentiary support for injunctive relief.

The Court sua sponte orders severance of the causes of action alleged in the Complaint; within sixty (60) days from the date of this Decision and Order, Plaintiff shall serve an amended complaint that complies with this Decision and Order, particularly as to number of defendants and insureds.

Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 29478 (Dist. Ct. Nassau, 2009)

The only other issue worth addressing is the propriety of using CPLR 3211 (instead of CPLR 3212) as the vehicle for dismissal. Subject to further guidance from our appellate courts, I believe that CPLR 3211(a)(7), read together with CPLR 3211(a)(1), allows a Court to consider a combination of documents and affidavits when determining whether the defendant is entitled to judgment upon a pre-answer motion to dismiss.  Biondi v. Beekman Hill House Apartment Corp., 257 AD2d 76 (1st Dept 1999),

affd. 94 NY2d 659 (2000), is instructive on this point. In that case, the defendant [*2]moved to dismiss a civil action based on “extrinsic evidence” consisting of “affirmations and exhibits.” 257 AD2d at 80-1. The IAS Justice denied the motion, finding from the “four corners” of the complaint that it alleged a cognizable cause of action. Id. at 80. The Appellate Division reversed. Id. “Where extensive evidence is used” to support a motion to dismiss, the Court explained, the issue for determination is “whether the proponent of the pleading has a cause of action, not whether he has stated one.” Id. at 81, quoting Guggenheim v. Ginzberg, 43 NY2d 268, 275 (1977 ). Accordingly, in cases where the complaint’s validity has “been negated beyond substantial question by the affidavit and evidentiary matter submitted” and it is clear that plaintiff “does not have a [viable] cause of action,” dismissal under CPLR 3211 is warranted. 257 AD2d at 81.

Admittedly, other caselaw pronouncements construing CPLR 3211(a) (7) paint a more confusing and contradictory picture. SeeRovello v. Orofino Realty Co., 40 NY2d 633 (1976), read broadly, appears to limit the Court’s authority to grant dismissal, upon affidavits, without converting the motion from a motion to dismiss into a motion for summary judgment. However, the Court of Appeals’ more recent decisions recognize that dismissal upon a 3211 motion may be granted where affidavits “established conclusively” that the plaintiff has no valid claim or cause of action to pursue. See Lawrence v. Miller, 11 NY3d 588, 595 (2008); accord Godfrey v. Spano,— NY3d —, 2009 NY Slip Op 08474 at *7 (decision dated November 19, 2009). Siegel, Practice Commentaries to McKinney’s CPLR, at C3211:25. The majority opinion in

Accordingly, under the logic of the more recent cases, where a “conclusive” case for dismissal is made out, the outcome of a given motion for judgment should not depend upon the largely technical distinction between a pre-answer (§3211) and post-answer (§3212) motion. Either way, if the defendant can make a conclusive showing of entitlement to judgment as a matter of law, it ought to be able to obtain an order dismissing the complaint.

Using CPLR 3211(a)(7) to achieve such a result is hardly unprecedented. Indeed, defendant cites numerous decisions from lower court judges throughout the New York metropolitan area where similar relief was sought, and successfully obtained. Moreover, CPLR §104 provides that the Civil Practice Law and Rules of this state should be construed to secure “the just, speedy and inexpensive determination of every civil judicial proceeding,” and toward that end, I see no overriding public policy reason why the procedures chosen by defendant cannot be used to obtain a speedy determination of an otherwise compelling, proveable defense, of an EUO default.

In sum, with all due respect for judicial determinations that may have read CPLR 3211 more narrowly, e.g. Dynamic Medical Imaging, PC v. State Farm Ins. Co., index no. 10100/09, decision dated October 1, 2009 (Dist Ct Nassau Co., Hirsh, J.), I have concluded, after careful consideration, that CPLR 3211 is an appropriate vehicle for obtaining a prompt judicial ruling respecting a defense of an EUO default. For all these reasons, the subject complaint is dismissed.

See that bold part?  For a lot of reasons, I disagree.  I’ll get into that later.