B & Y Surgical Supplies, Inc. v Interboro Ins. Co.

[*1] B & Y Surgical Supplies, Inc. v Interboro Ins. Co. 2014 NY Slip Op 50617(U) Decided on March 31, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 18, 2014; it will not be published in the printed Official Reports.

Decided on March 31, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and SOLOMON, JJ
2012-198 K C.

B & Y Surgical Supplies, Inc. as Assignee of JOSEPH SINGER, Respondent,

against

Interboro Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered November 28, 2011. The order denied defendant's motion to vacate (1) a prior order of the same court (Pamela L. Fisher, J.) entered April 18, 2011 granting, on default, plaintiff's motion for summary judgment and, (2) in effect, the judgment entered on July 22, 2011 pursuant to the April 18, 2011 order, and, upon such vacatur, to deny plaintiff's motion for summary judgment and grant defendant summary judgment dismissing the complaint.

ORDERED that the order entered November 28, 2011 is reversed, without costs, defendant's motion is granted, the order entered April 18, 2011 and the judgment entered pursuant thereto on July 22, 2011 are vacated, plaintiff's motion for summary judgment is denied and summary judgment is awarded in favor of defendant dismissing the complaint.

In this action by a provider to recover assigned first-party no fault benefits, defendant appeals from an order of the Civil Court entered November 28, 2011 which denied defendant's motion to vacate (1) a prior order of the same court entered April 18, 2011 granting, on default, plaintiff's motion for summary judgment and, (2) in effect, the judgment entered on July 22, 2011 pursuant to the April 18, 2011 order, and, upon such vacatur, to deny plaintiff's motion for summary judgment and grant defendant summary judgment dismissing the complaint.

Defendant moved to vacate the order granting plaintiff's motion on default within days after its entry. In our view, defendant's moving papers sufficiently established a reasonable excuse for the default as well as a meritorious defense to the action (see CPLR 5015 [a]). Consequently, we find that it was an improvident exercise of discretion for the Civil Court to deny the branch of defendant's motion seeking to vacate its default.

In support of the branches of its motion seeking the denial of plaintiff's motion for summary judgment and the granting of summary judgment in its favor dismissing the complaint, defendant submitted an affidavit by an employee of Comprehensive Medical
Reviews (CMR), an entity which had scheduled independent medical examinations (IMEs) of plaintiff's assignor on behalf of defendant. The affidavit established that the IME scheduling letters had been timely mailed in accordance with CMR's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d [*2]& 11th Jud Dists 2007]). Defendant also submitted an affidavit by the acupuncturist and an affirmation by the orthopedist who were to perform the IMEs, which documents established that plaintiff's assignor had failed to appear for the scheduled IMEs. An affidavit executed by defendant's claims representative demonstrated that denial of claim forms, which denied the claims based upon the failure of plaintiff's assignor to appear for the IMEs, had been timely mailed to plaintiff (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). As a result, defendant established its prima facie entitlement to judgment as a matter of law (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise a triable issue of fact in opposition.

Accordingly, the order entered November 28, 2011 is reversed, defendant's motion is granted, the order entered April 18, 2011 and the judgment entered pursuant thereto on July 22, 2011 are vacated, plaintiff's motion for summary judgment is denied and summary judgment is awarded in favor of defendant dismissing the complaint.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 31, 2014