Alexander Alperovich, M.D., P.C. v Auto One Ins. Co., 2009 NY Slip Op 51721(U) (App. Term, 2nd, 2009).

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff’s motion for summary judgment, holding that there are questions of fact as to whether plaintiff’s assignor is an innocent third party or was involved in, or had knowledge of, the identity theft which resulted in defendant’s issuance of the automobile insurance policy. The instant appeal by plaintiff ensued.

While defendant contends that plaintiff is not entitled to summary judgment because the insurance policy was obtained fraudulently as a result of identity theft, the record is bereft of any evidence that plaintiff’s assignor participated in or was aware of such a fraudulent scheme (cf. A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Since defendant did not cancel the insurance policy prior to the accident (see Vehicle and Traffic Law § 313), defendant failed to demonstrate the existence of an issue of fact so as to defeat plaintiff’s motion for summary judgment (see Matter of Metlife Auto & Home v Agudelo, 8 AD3d 571 [2004]; D.A.V. Chiropractic, P.C. v GEICO Indem. Co., 21 Misc 3d 138[A], 2008 NY Slip Op 52304[U] [App Term, 9th & 10th Jud Dists 2008]; cf. A.B. Med. Servs. PLLC, 12 Misc 3d 8). Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory [*2]interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

RLI Ins. Co. v Steely, 2009 NY Slip Op 06130 (App. Div., 2nd, 2009)

NY Mutual moved, inter alia, pursuant to CPLR 3211 to dismiss the complaint for lack of standing insofar as asserted against it. NY Mutual argued, among other things, that the plaintiff lacked standing to challenge its disclaimer of coverage to its insured. The Supreme Court, inter alia, granted that branch of NY Mutual’s motion which was to dismiss the complaint insofar as asserted against it. We reverse the order insofar as appealed from.

We find that the plaintiff has standing to challenge NY Mutual’s disclaimer of coverage to its insured. “A plaintiff need not be privy to an insurance contract to commence a declaratory judgment action to determine the rights and obligations of the respective parties, so long as the plaintiff stands to benefit from the policy” (Mortillaro v Public Serv. Mut. Ins. Co., 285 AD2d 586, 587). Here, the plaintiff clearly stands to benefit from NY Mutual’s policy.

Jason Tenenbaum, Esq., the the managing no-fault attorney at Picciano & Scahill, P.C. and Francis J. Scahill, Esq., the managing partner at Picciano & Scahill, P.C, authored an article in the New York Law Journal titled: What Constitutes a ‘Prima Facie’ Case In No-Fault Practice? The article will be in tomorrow’s New York Law Journal. You can view it online today.

I’ll post more tomorrow. It’s late and it’s been a long day.

As promised, here are the usual snipped. And, as usual, you will have to pick up the paper or go online to get the full article.

In examining the decisions from the courts since 1997, the date the Court of Appeals decided the groundbreaking matter of Presbyterian Hosp. in the City of New York v. Maryland Cas. Co.,¹ the appellate courts during various points in the last 10 years have suggested five distinct yet somewhat interrelated models as to what satisfies a prima facie case. The following represents the models that courts at one point or another have found constitutes a prima facie case for the recovery of no-fault benefits.

• Model 1—A plaintiff must show that a completely filled out claim form is overdue.

• Model 2—A plaintiff must demonstrate that a bill is overdue, period.

• Model 3—A plaintiff must prove that a bill is overdue and the rendered service is medically necessary

• Model 4—A plaintiff must prove that a bill is overdue and that the bill constitutes a business record of the provider of services.

• Model 5—A plaintiff must satisfy any of the above models AND demonstrate standing.

While a prima facie case under the majority approach in no-fault litigation nationwide combines “Model 3,” “Model 5″ and requires a plaintiff to prove a causal relation between the motor vehicle accident and the injuries,² the current viewpoint in New York is that a prima facie case is satisfied through either “Model 2″ or “Model 4.” A discussion of the various models ensues.

…

Model 3—A plaintiff must prove that a bill is overdue and the rendered service is medically necessary. Prior to the no-fault explosion that began in 2003, two courts held that the medical necessity of a service was part of a plaintiff’s prima facie case.¹²

From 2003 onward, the courts have universally shunned this model and have embraced either “Model 2″ or “Model 3,” wherein the burden to demonstrate a service’s lack of reasonableness falls squarely, in the first instance, on the insurance carrier. Many trial decisions affirmed on appeal have reiterated this point of law.¹³

It follows that as of now, “Model 3″ does not represent the law in this state, making New York a minority jurisdiction regarding this issue.¹⁴

Model 4—A plaintiff must show that a bill is overdue and that the bill constitutes a business record of the provider of services. There is a split, the size of a crater, between every Appellate Court and the Appellate Term, Second Department, as to the necessity of a medical provider placing the claim form into evidence in order to satisfy a prima facie case.

The Appellate Term, Second Department, began formally adding this requirement to a provider’s prima facie case in Dan Medical, P.C. v. New York Cent. Mut. Fire Ins. Co.,¹⁵ and Fortune Med., P.C. v. Allstate Ins. Co.¹⁶ This requirement, although not applied in earnest as is the case now, predated the Dan Medical and Fortune Medical line of cases.¹⁷

Following Dan Medical, there have been over 100 reported cases where a prima facie case has not been established due to the failure to place the statutory claim documents into evidentiary admissible form.¹⁸

Most notably, the Appellate Division, Second Department, in the matter of Art of Healing Medicine, P.C. v. Travelers Home & Mar. Ins. Co., upheld the rationale of the Dan Medical line of cases, when the Appellate Division observed the following:

The plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The plaintiffs’ medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule.¹⁹

Against this model, the Appellate Term, First Department, in Fair Price Medical Supply Inc. v. St. Paul Travelers Ins. Co.,²⁰ held that a literal interpretation of the Mary Immaculate rule was in all respects proper.

Furthermore, the Appellate Term, First Department has been unwavering in its commitment to following Fair Price Medical Supply and in rejecting competing Appellate Term, Second Department precedent. The Appellate Term, Second Department, has likewise rejected competing Appellate Term, First Department precedent.²¹

As seen above, the Appellate Division First Department and Appellate Division, Third Department, have likewise rejected Appellate Term, Second Department precedent.²²

While the Appellate term, Second Department has continued to predicate its allegiance to Dan Medical based upon the Appellate Division, Second Department’s holding and affirmance of its decision in Art of Healing,²³ the legal moorings behind the Appellate Division, Second Department’s holding in Art of Healing appear to be waning. For instance, the Appellate Division, Second Department in an opinion and order authored by Justice Mark C. Dillon in the matter of Kingsbrook Jewish Medical Center v. Allstate Ins. Co.,²⁴ held that a strict reading of Mary Immaculate would be sufficient for a provider to satisfy its prima facie case.

Significantly, Kingsbrook appears to represent a clear break with the Appellate Division, Second Department’s holding in Art of Healing, which was decided approximately three months prior to Kingsbrook.

Besides Kingsbrook, the rationale behind the holding that a medical provider must lay a business record foundation for the entry into evidence of claim forms has been implicitly rejected in numerous cases subsequent to Art of Healing.²⁵

It would thus appear that the Appellate Division, Second Department has abandoned its own position in Art of Healing and has consciously decided to follow its former precedent set forth in the Mary Immaculate line of cases. In this regard, the Appellate Division, Second Department’s jurisprudence is in accord with Appellate Division First Department case law, Appellate Division Third Department case law and Appellate Term, First Department case law.²⁶

With the moorings that support Dan Medical abandoned, the Appellate Term, Second Department’s allegiance to this model is probably inappropriate. It is only a matter of time before the Appellate Term, Second Department is forced to abandon its allegiance to the Dan Medical line of cases.

What is somewhat ironic is that Model 4, quantitatively, is the most widely followed Model since the Appellate Term, Second Department has direct appellate authority over the jurisdictions where a majority of the no-fault filings take place.

If you don’t know what Google Reader or an RSS reader is, click here. I listed everything in the same groups I have in Reader. If anyone has any suggestions, let me know.

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Motor Veh. Acc. Indem. Corp. v Modern Art Health Care, P.C., 2009 NY Slip Op 51568(U) (App. Term, 2nd, 2009)

Because MVAIC failed to submit opposition to the motion to dismiss the petition, the order granting the motion 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]).

Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51570(U) (App. Term, 2nd, 2009)

The Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer in order to interpose the aforementioned affirmative defenses (see State Farm Mut. Auto Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]) since plaintiff failed to demonstrate that prejudice or surprise would result therefrom (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defenses were neither devoid of merit nor palpably insufficient as a matter of law (see CPLR 3025 [b]; Ingrami v Rover, 45 AD3d 806, 808 [2007]; Hill v 2016 Realty Assoc., 42 AD3d 432, 433 [2007]). Moreover, defendant made a sufficient showing that its amended discovery demands were material and necessary to its defenses so as to warrant the granting of the branch of its
cross motion seeking to compel plaintiff to respond thereto (see CPLR 3101; Mallela, 4 NY3d 313).

Great Wall Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51571(U) (App. Term, 2nd, 2009)

In this action to recover assigned first-party no-fault benefits, defendant moved to vacate the default judgment entered following its failure to answer, to compel plaintiff to accept its late answer, and for sanctions. The Civil Court denied the motion, finding that the affirmation of defendant’s attorney was insufficient to establish a reasonable excuse for the default. The instant appeal by defendant ensued.

A party seeking vacatur of a default judgment must demonstrate both a reasonable excuse for its default in appearing and answering the complaint, and a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). The affidavits of the claims representatives, which defendant submitted in support of its motion, suffice to establish a reasonable excuse for defendant’s relatively short delay in answering the complaint. Moreover, plaintiff has not indicated that it was prejudiced by the delay. Furthermore, defendant made a prima facie showing of a potentially meritorious defense as to whether plaintiff is ineligible to receive reimbursement of no-fault benefits (see State Farm [*2]Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). Accordingly, the branches of defendant’s motion seeking to vacate the default judgment and to compel plaintiff to accept its late answer are granted.

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co., 2009 NY Slip Op 51572(U) (App. Term, 2nd, 2009)

While the motion was pending, defendant served plaintiff with a notice to take the deposition of plaintiff’s owner, Perumunda K. Sharma (Sharma). After plaintiff served papers which purported to be a cross motion (but which did not include a notice of cross motion) seeking a protective order with respect to the deposition of Sharma, defendant submitted reply papers setting forth the reasons why defendant believed it was entitled to such a deposition. The Civil Court denied defendant’s motion. The court further stated that defendant did not establish its need for a deposition of Sharma and that plaintiff’s purported cross motion, which, the court noted, did not appear on its calendar, was denied as moot. Defendant appeals from so much of the order as held that defendant had not established its entitlement to depose Sharma.

The portion of the order which provided that defendant did not establish its entitlement to depose Sharma is not appealable as of right because it did not decide a motion on notice seeking such relief (CCA 1702 [a] [2]; CPLR 2211). Since leave to appeal from that portion of the order has not been granted, the appeal is dismissed (see CCA 1702 [c]; Robertson v United Equities, Inc., 61 AD3d 838 [2009]; Consolidated Resources, LLC v 210-220-230 Owner’s Corp., 59 AD3d 579 [2009]; Mohler v Nardone, 53 AD3d 600 [2008]).

Radiology Today, P.C. v GEICO Ins. Co., 2009 NY Slip Op 51578(U) (App. Term, 2nd, 2009)

Defendant’s papers establish that defendant mailed its follow-up request for verification on the 30th calendar day after it mailed its verification request. As a result, the follow-up request was premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As defendant failed to timely deny plaintiff’s claim, defendant was precluded from raising most defenses, including its proffered defense of lack of medical necessity (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Since defendant failed to raise a triable issue of fact, the judgment is affirmed.

D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 2009 NY Slip Op 51579(U) (App. Term, 2nd, 2009)

Defendant’s contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8). Consequently, defendant’s contention that the instant action is premature lacks merit.

V.S. Med. Servs., P.C. v Allstate Ins. Co., 2009 NY Slip Op 29310 (App. Term, 2nd, 2009)

In its decision, the Civil Court noted that, while an insurer may put forth evidence of a fraudulent scheme in order to prove that a collision was not an accident, the insurer need not prove fraud (see Matter of Eagle Ins. Co. v Davis, 22 AD3d 846 [2005]). As stated in the court’s decision,

“courts commonly invoke the term fraud’ when discussing the defense of lack of coverage; this may be because so many cases involving allegedly non-covered incidents center on accidents purportedly staged for the purpose of generating fraudulent insurance claims. . . Perhaps the seminal embodiment of this formulation is the Second Department’s pronouncement [in State Farm Mut. Auto. Ins. Co. v Laguerre (305 AD2d 490, 491 [2003])] that [a] deliberate collision caused in furtherance of an insurance fraud scheme is not a covered accident.’”

However, explained the Civil Court, “it does not matter whether the accident was staged in furtherance of an insurance fraud scheme or was deliberately caused under some other [*2]circumstances.” Rather, the court need only determine “whether the incident was unintentional (i.e., a true accident) or whether at least one driver intended to make contact (i.e., a deliberate event).” This is because “[i]f the collision was an intentional occurrence, then it is outside the scope of the No-Fault policy regardless of why or how it occurred or who was behind it.” We agree with the Civil Court’s reasoning regarding this issue.

In Fair Price Med. Supply Corp. v Travelers Indem. Co. (42 AD3d 277, 284 [2007], affd 10 NY3d 556 [2008]), the Appellate Division explained that “[w]hat excuses the insurer’s compliance with the 30-day rule in a staged-accident case is not the egregiousness of the fraud; rather, it is the absence of coverage for something that is not an accident.’ ” As noted by the Appellate Division, “[t]he rationale for such [a] holding[] is that a deliberate collision that is caused in furtherance of an insurance fraud scheme is simply not an accident’ covered by the subject insurance policy” (id. at 283). Thus, in the case at bar, defendant could properly premise its defense upon a lack of coverage and could establish this defense by a preponderance of the evidence; defendant was not required to establish that the subject collision was the product of fraud, which would require proof of all of the elements of fraud, including scienter (see Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855 [2008]), by clear and convincing evidence (see Simcuski v Saeli, 44 NY2d 442 [1978]; Hutt v Lumbermen’s Mut. Cas. Co., 95 AD2d 255 [1983]). Upon a review of the record, we agree with the Civil Court’s determination that defendant’s proof, which plaintiff failed to rebut, established by a preponderance of the evidence its defense of lack of coverage (see Praimnath v Torres, 59 AD3d 419 [2009]).

I can’t think of any reason why the Appellate Term did not address Langan. While I understand that the Appellate Term wants a certain result, I cannot understand why it would ignore precedent. It would be far better to address the troublesome issues head on, than shove a square peg through a round hole, and hope nobody notices the deformed peg on the other side.

D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 2009 NY Slip Op 51584(U) (App. Term, 2nd, 2009)

Defendant’s contention that plaintiff failed to make out a prima facie case lacks merit since the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Further, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by the affidavit of defendant’s claims representative, in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).

Defendant’s papers establish that defendant mailed its follow-up requests for verification on the 30th calendar day after it mailed its verification requests. As a result, the follow-up requests were premature and without effect (see General Construction Law § 20; Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]; Alur Med. Supply, Inc. v Progressive Ins. [*2]Co., 23 Misc 3d 130[A], 2009 NY Slip Op 50657[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and the 30-day claim determination period was not tolled (see Insurance Department Regulations [11 NYCRR] § 65-3.8).

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 51593(U) (App. Term, 2nd, 2009)

Subsequent to the entry of the order appealed from, the Civil Court, upon an application by defendant which plaintiff opposed, entered an order dismissing the complaint with prejudice due to plaintiff’s failure to comply with the October 6, 2008 order. A judgment was entered pursuant thereto on April 10, 2009.

The appeal must be dismissed because the right of direct appeal from the October 6, 2008 order terminated with the entry of judgment in this action (see Matter of Aho, 39 NY2d 241, 248 [1976]).

AA Acupuncture Serv., P.C. v Safeco Ins. Co. of Am., 2009 NY Slip Op 29311 (App. Term, 1st, 2009)

Although Vehicle and Traffic Law § 313 does not permit an insurer to cancel an automobile insurance policy retroactively on the grounds of fraud or misrepresentation (see Matter of Liberty Mut. Ins. Co. v McClellan, 127 AD2d 767, 769 [1987]), an insurer may assert misrepresentation or fraud as an affirmative defense in an action by an insured to recover benefits under the policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 298-299 [2000]; Matter of Liberty Mut. Ins. Co. v McClellan, 127 AD2d at 770). Here, defendant’s moving papers showed that when the insured-assignor applied for automobile insurance, she listed a Connecticut address as her place of residence and the location where the insured vehicle would be garaged; that two months later, the insured notified defendant that she had changed her address, listing a second Connecticut address as her place of residence; that when the insured renewed her policy, she again listed a Connecticut address as her place of residence; that the Connecticut address listed by the insured as her residence was a commercial store located in a strip mall; and that the insured, at all relevant time, actually resided in Brooklyn, New York. Defendant further demonstrated that the annual insurance premium of $1,236 paid by the insured was based on her representation that she resided in Connecticut, and that the annual premium for the same policy based on her Brooklyn address would have been $4,807. This evidence was [*2]sufficient to establish prima facie that the insured intentionally misrepresented her address in order to obtain insurance at reduced premiums, and that the misrepresentation was material, since defendant would not have issued the policy under the same terms had it known that the insured resided in Brooklyn (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d at 299-230). Contrary to the motion court’s determination, defendant was not required to show that the insurance policy had actually been cancelled in order to establish a prima facie showing of entitlement to summary judgment based on its fraud/misrepresentation defense.

Richard Denise, M.D., P.C. v New York City Tr. Auth., 2009 NY Slip Op 29313 (App. Term, 1st, 2009)

Defendant New York City Transit Authority concedes that as a self-insurer, it is subject to the provisions of the no-fault law to the same extent as an insurer (see Insurance Law § 5103[a]; Vehicle and Traffic Law § 321[2]; Public Authorities Law § 1215; Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]), and that actions to recover no-fault benefits are generally governed by a six-year statute of limitations (see CPLR 213[2]; Matter of Travelers Indem. Co. of Conn. v Glenwood Med., P.C., 48 AD3d 319 [2008]). It argues, however, that while an injured claimant has six years to assert a no-fault claim against an insured owner, a claimant must assert an identical claim against a self-insurer within three years, since the liability of a self-insurer for the payment of no-fault benefits is derived strictly from statute. We disagree.

Defendant’s responsibility to provide no-fault coverage is mandatory and the obligation is not decreased merely because defendant is self-insured (see Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 820 [1980]). As in the case of an uninsured motorist claim (see Matter of ELRAC v Suero, 38 AD3d 544 [2007], lv denied 9 NY3d 811 [2007]), the right to obtain no-fault coverage, from an injured claimant’s perspective, “is no less than the corresponding right under a policy issued by an insurer” (id. at 545; see also Spring World Acupuncture, PC v New York City Tr. Auth., — Misc 3d —, 2009 NY Slip Op 29229 [2009]). The Suero court held that although a claim for uninsured motorist benefits against a self-insurer is statutorily mandated, such a claim remains contractual in nature and thus, is subject to a six-year statute of limitations. Since we find no basis in law or compelling reasons of policy to distinguish between the right to uninsured motorist benefits and the right to no-fault benefits, we hold that a claim for no-fault benefits against a self-insurer, such as defendant here, is governed by a six-year statute of limitations.

J & S Med. Supplies, Inc. v Republic W. Ins. Co., 2009 NY Slip Op 51595(U) (App. Term, 1st, 2009)

Bronx Radiology, P.C. v Allstate Ins. Co., 2009 NY Slip Op 51581(U) (Dist Ct Nassau County, Third Dist)

Plaintiff’s moving papers admit that it received a copy of the arbitrator’s decision, dated December 5, 2008, from both the Court and from defendant’s counsel.The latter copy was received together with a demand for trial de novo of a similarly captioned matter, bearing a different index number. Both copies of the decision included a standard section filled out by the Clerk giving the parties notice of the filing of the award.

Notwithstanding plaintiff’s admitted receipt of two copies of the award containing such notice, plaintiff did not timely file a demand for trial de novo (see 28 NYCRR §28.12), due to its mistaken belief that the defendant had demanded a trial de novo with respect to the very same subject award. When it finally realized that the defendant’s demand for trial de novo bore a different index number, it belatedly attempted to file its own demand for trial de novo. The Clerk rejected the filing.

Regrettably, the Court lacks the power to grant the relief requested. The time limit for filing a demand for trial de novo (28 NYCRR §28.12) is akin to the time limit for filing a notice of appeal. Courts lack discretion to extend either time limit. See Chase v. Scalini, 97 AD2d 25 (2d Dept. 1983).

Nor can the Court avoid the strictness of the rule by finding that plaintiff was never properly served with notice of filing of the award. Under controlling precedent, service of the award may be made “either by the court or by a party.” Gordon v. Siben & Siben, 146 Misc 2d 553, 556 (App Term 1990).

Crossbay Acupuncture, P.C. v State Farm Mut. Automobile Ins. Co., 2009 NY Slip Op 51636(U) (App. Term, 1st, 2009)

Defendant’s documentary submissions in support of its motion to strike the notice of trial and compel discovery suffice to establish its entitlement to disclosure pertaining to its defense of fraudulent incorporation, including the management agreements and corporate financial documents requested, as well as the deposition of plaintiff’s principal (see One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]). However, defendant did not establish its entitlement to disclosure of the personal income taxes and bank account records of plaintiff’s principal. “Compelled disclosure of personal income tax returns is disfavored because of their private and confidential nature” (David Leinoff, Inc. v 208 W. 29th St. Assoc., 243 AD2d 418, 419 [1997]). The party seeking such disclosure must “make a strong showing of necessity and demonstrate that the information contained in the returns is not available from any other source” (id.). At this juncture, and in view of the fact that defendant has been granted disclosure of plaintiff’s corporate tax return and other financial information, defendant has not met that burden. Nor is defendant entitled to discovery with respect to precluded defenses.

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co., 2009 NY Slip Op 51629(U) (App. Term, 2nd, 2009)

The affidavits proffered by defendant in support of its motion for summary judgment were executed out of state. Although the affidavits were accompanied by documents that purported to be certificates of conformity, the certificates did not comply with Real Property Law § 299-a and, thus, the affidavits did not comply with CPLR 2309 (c) (see Ford Motor Credit Co. v Prestige Gown Cleaning Serv., 193 Misc 2d 262 [2002]). Since this defect was duly objected to by plaintiff in the Civil Court, defendant failed to introduce competent evidence in admissible form establishing its entitlement to summary judgment (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s motion for summary judgment should have been denied (id.).

Contrary to plaintiff’s contention, plaintiff’s cross motion for summary judgment was properly denied. Plaintiff failed to establish that its billing records constituted evidence in admissible form pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d [*2]& 11th Jud Dists 2006]). Plaintiff’s remaining contentions lack merit.

Psychology YM, P.C. v Nationwide Mut. Ins. Co., 2009 NY Slip Op 51634(U) (App. Term, 2nd, 2009)