Focus Radiology, P.C. v New York Cent. Mut. Ins. Co.

[*1] Focus Radiology, P.C. v New York Cent. Mut. Ins. Co. 2009 NY Slip Op 51218(U) [24 Misc 3d 126(A)] Decided on June 12, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-350 RI C.

Focus Radiology, P.C. as assignee of ANTONIA METTELUS, Respondent,

against

New York Central Mutual Insurance Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Johnny Lee Baynes, J.), entered November 29, 2007. The order denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 or, in the alternative, for summary judgment determining that defendant's denial of claim form was timely mailed.

Order modified by adding thereto the provision that the acknowledgment of service annexed to defendant's moving papers is deemed timely filed; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved pursuant to CPLR 3211 to dismiss the action without prejudice because plaintiff failed to file the summons with proof of service as required by former section 409 of the New York City Civil Court Act or, in the alternative, for summary judgment determining that defendant's denial of claim form was timely mailed. In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411. The Civil Court denied defendant's motion. This appeal by defendant ensued.

Dismissal of the action without prejudice due to a violation of CCA former 409, which required that a copy of the summons with proof of service be filed within 14 days after service of the summons, is not warranted where, as here, plaintiff requested nunc pro tunc relief (see CCA former 411). Under the circumstances presented, such nunc pro tunc relief should have been granted.

The affidavit submitted by defendant's claims examiner failed to establish that defendant timely mailed its verification requests and its denial of claim form based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New [*2]York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Align for Health Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 144[A], 2008 NY Slip Op 51862[U] [App Term, 2d & 11th Jud Dists 2008]; Horton Med., P.C. v New York Cent. Mut. Fire Ins. Co., 20 Misc 3d 142[A], 2008 NY Slip Op 51682[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant did not establish that its denial of claim form was timely. Accordingly, defendant's motion was properly denied and the order is modified to provide for nunc pro tunc relief.

Weston, J.P., and Steinhardt, J., concur.

Golia, J., dissents in a separate memorandum.
Golia, J., dissents and votes to reverse the order and grant defendant's motion to dismiss the complaint.

This appeal turns on plaintiff's failure to comply with the requirements of the New York City Civil Court Act that were in effect at the time the underlying action was commenced.

The Civil Court action was commenced on or about November 10, 2003, and defendant served an answer upon plaintiff dated December 22, 2003.

Despite the fact that former section 409 of the Civil Court Act, which was in effect at the time, required that a copy of the summons with proof of service be filed within 14 days of service, to wit, November 24, 2003, this plaintiff did not file those documents until March 12, 2007, nearly 3¼ years later. This is a rather extensive oversight.

Furthermore, I disagree with the representation presented by the majority that, "In opposition, plaintiff asked for nunc pro tunc relief pursuant to CCA former 411". In fact, what plaintiff stated in its opposition papers was, "If this court deems it necessary, I would request the filing of the summons and complaint be accepted nunc pro tunc". This inchoate statement was not even a precatory "request" but, rather, a conditional offer to make such request only "if this court deems it necessary". This failure to file an application for relief is important because if plaintiff had made an affirmative request for nunc pro tunc relief, then it would have been required to demonstrate why it was entitled to such relief. That would have necessitated an explanation of why it took more than 1,200 days to comply with a simple requirement that should have been done in 14 days.

I do not deem it necessary or even advisable to grant plaintiff's or its counsel's unsupported request for nunc pro tunc relief for counsel's failure to comply with well- established rules, which were disregarded for approximately 3¼ years. I would simply dismiss the complaint without prejudice.
Decision Date: June 12, 2009