Careplus Med. Supply Inc. v Citiwide Auto Leasing Inc.
Annotate this CaseDecided on March 29, 2005
Civil Court, Kings County
Careplus Medical Supply Inc., a/a/o Jacques Louidins and Eddy Luc, Plaintiff,
against
Citiwide Auto Leasing Inc., d/b/a Dollar Rent a Car, Defendant.
86041/2003
Peter P. Sweeney, J.
In this action by a provider of medical supplies to recover assigned first-party no-fault benefits, the defendant moves inter alia to vacate an order of this court dated May 27, 2004, which granted plaintiff's motion for summary judgment on default.
Factual Background:
Plaintiff commenced this action pursuant to Insurance Law § 5101 et seq. to recover $5060.00 in assigned first-party no-fault benefits for medical supplies it provided to its two assignors. Plaintiff served the defendant with the summons and complaint on June 26, 2003 and annexed thereto various materials including copies of the five claim forms at issue, copies of the assignment forms pursuant to which both of plaintiff's assignors assigned their entitlement to collect the first-party no-fault benefits to the plaintiff and copies of defendant's denials of the claims. The medical supplies at issue were provided from August 17, 2002 to October 31, 2002. Defendant denied four of the claims on the ground that plaintiff's assignors failed to appear for independent medical examinations and denied the remaining claims "pending EUO investigation.
During the pendency of the action, plaintiff moved for summary judgment. The motion [*2]was initially returnable on November 3, 2003 and was adjourned on that date to May 27, 2004. On May 27, 2004, the motion was granted due to defendant's in failing to appear for oral argument. Defendant now seeks to vacate the order maintaining that it has reasonable excuse for the default and a meritorious defense.
As and for its reasonable excuse for the default, defendant submitted an affirmation from an attorney in the law firm that is now representing the defendant. She states therein that her firm was substituted in place of defendant's prior attorneys on April 16, 2004 and that her firm was not informed that the motion had been adjourned from November 3, 2003 to May 27, 2004 .
As and for a purported defenses to the action, defendant maintains that plaintiff's assignors withddrew their claims on September 24, 2003 and are therefore precluded from recovery. In support of this defense, defendant submitted copies of the unsigned transcripts of the examinations under oath (EUO) plaintiff's assignors which were conducted on September 24, 2003. Defendant correctly points out that both assignors withdrew their claims on the record at that time.
Defendant also maintains that it has a viable defense based on fraud. In support of its fraud defense, defendant submitted a medical report signed by Dr. Margaret Sobin that was neither affirmed or sworn to concerning assignor Eddy Luc's initial visit to A.B. Medical Services. A.B. Medical Services is not the assignee in this case. Defendant correctly points that there are some inconsistencies between Ms. Luc's EUO testimony and findings and medical history referenced to in the report. Defendant maintains that these inconsistences give rise to a founded belief that A.B. Medical Services billed for services not rendered.
Discussion:
It is well established that a defendant seeking to vacate an order granted on default must demonstrate a reasonable excuse for the default and a meritorious defense (CPLR 5015[a][1]; King's Medical Supply Inc. v. New York Cent. Mut. Fire Ins. Co., 5 Misc 3d 136(A), 2004 NY Slip Op. 51550(U) [App Term 2nd & 11th Jud. Dists]; Parker v. City of New York, 272 AD2d 310 [2nd Dep't 2000]).
There is no merit to defendant's contention that the withdrawal of the claims by plaintiff's assignors on September 24, 2004 constitutes a defense to the action. An effective assignment requires delivery and acceptance (see Nedick's Stores, Inc. v. T.S.NY Realty Corp., 156 AD2d 123, 124, 548 NYS2d 172, 173 [1st Dep't 1989]; Lynch v. Joseph, 228 A.D. 367, 370, 240 N.Y.S. 176 [4th Dep't 1930] and there is not question in this case that the assignments became effective before September 24, 2004 when plaintiff accepted the assignments in return for providing its assignors with the subject medical supplies. "An assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified [FN1], it is properly the transfer of one whole interest in an estate, or chattel, or other thing" (Griffey v. New York Cent. Ins. Co., 100 NY 417, 422, 3 N.E. 309 [1885]; see also In re Stralem, 303 AD2d 120, 122, 758 NYS2d 345, 347[2nd Dep't 2003]; Aini v. Sun Taiyang Co., 964 F. Supp. 762, 778[S.D.NY 1997], affd. 159 F.3d 1348 [2nd Cir 1998]). Indeed, "[a]n [*3]assignment at law contemplates a completed transfer of the entire interest of the assignor in the particular subject of assignment, whereby the assignor is divested of all control over the thing assigned" (Coastal Commercial Corp. v. Kosoff & Sons, 10 AD2d 372, 376, 199 NYS2d 852 [4th Dep't 1960]; see also Mele ex rel. Mele v. Travers 293 AD2d 950, 951, 741 NYS2d 319, 321 [3d Dep't 2002]; In re Stralem ,303 AD2d at 123, 758 NYS2d at 347). Here, plaintiff's assignors lost all control over the claims for first-party no-fault benefits when the assigned the claims to the plaintiff and had no legal authority to withdraw the claims at their EUO.
Defendant's contention that it has a viable fraud defense is also without merit. Assuming, arguendo, that defendant's submissions were sufficient to create a triable issue of fact as to whether A.B. Medical Services billed for services not provided, and assuming that this defense may be raised even though it was not asserted in a timely denial, defendant's submissions did not create a triable issue of fact as to whether plaintiff Careplus Medical Supply, Inc. billed for supplies not provided. As defendant failed to demonstrate any meritorious defense whatsoever, the court need not consider whether defendant has a reasonable excuse for its failure to appear and oppose plaintiff's motion for summary judgment (see Eugene Di Lorenzo, Inc. v. Dutton Lbr. Co., 67 NY2d 138, 141, 501 NYS2d 8, 492 NE2d 116 [1986]; Pennsylvania Bldg. Co. v. Schaub,14 AD3d 365, 789 NYS2d 112, 113 [1st Dep't 2005]). For the above reasons, it is hereby
ORDERED that defendant's motion is DENIED in its entirety.
This constitutes the decision and order of the court.
Dated: March 29, 2005___________________________________
PETER P. SWEENEY
Civil Court Judge
Footnotes
Footnote 1:The assignment forms at issue contained no relevant qualifications.
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