Total Family Chiropractic v Mercury Cas. Co.

[*1] Total Family Chiropractic v Mercury Cas. Co. 2010 NY Slip Op 51470(U) [28 Misc 3d 138(A)] Decided on August 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1490 Q C.

Total Family Chiropractic/DR. BRIAN ROSS as Assignee of CRYSTAL FRANKLIN-BROWN and KAROY BROWN, Respondent,

against

Mercury Casualty Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered February 13, 2009, deemed from a judgment of the same court entered June 8, 2009 (see CPLR 5501 [c]). The judgment, entered upon the February 13, 2009 order denying defendant's motion for summary judgment dismissing the complaint or, in the alternative, to strike the notice of trial and compel plaintiff's assignors to attend examinations before trial, and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $3,142.48.

ORDERED that the judgment is reversed without costs, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary
judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007 for services rendered to assignor Karoy Brown on February 7 and 9, 2007, the branch of defendant's motion seeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant's motion for summary judgment dismissing the complaint or, in the alternative, to strike the notice of trial and compel plaintiff's assignors to attend examinations before trial, and granted plaintiff's cross motion for summary judgment. The instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff's prima facie case, we do not pass upon the propriety of the Civil Court's determination with respect thereto.

Defendant argues that plaintiff failed to establish that it was entitled to summary judgment upon the claim form dated March 22, 2007 for services rendered to assignor Karoy Brown on February 7 and 9, 2007, as it was duplicative of the claim form plaintiff [*2]
submitted to defendant dated February 17, 2007, which sought payment for the same services. Upon a review of the record, we agree with defendant's contention, and defendant is awarded summary judgment dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007 (see e.g. First Aid Occupational Therapy PLLC v Country-Wide Ins. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50594[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.

While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motion
seeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: August 13, 2010