Appellate Term Second Department Second, Eleventh and Thirteenth JudicIal Districts Cases Released on November 20, 2019 By: Weston, J.P., Aliotta, Siegal, JJ. Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Talia Beard of counsel), for respondent. 2018-683 K C. BRONX MED. DIAGNOSTIC, P.C. v. GLOBAL LIBERTY INS. OF N.Y. — Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered November 27, 2017. The order granted defendant’s motion to vacate a judgment of that court entered March 8, 2016 pursuant to an order of that court (Devin P. Cohen, J.) entered February 9, 2016 granting plaintiff’s prior unopposed motion for summary judgment, and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint. ORDERED that the order entered November 27, 2017 is reversed, with $30 costs, and defendant’s motion to vacate the judgment entered March 8, 2016 and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied. Plaintiff Bronx Medical Diagnostic, P.C. (Bronx Medical) commenced this action in 2015 to recover first-party no-fault benefits for medical services it had provided to its assignor, Monique Diaz, as a result of a motor vehicle accident which had occurred on October 8, 2014. After issue had been joined, Bronx Medical moved in 2015 for summary judgment, and defendant Global Liberty Ins. of N.Y. (Global Liberty) failed to submit any opposition. By order entered February 9, 2016, the Civil Court (Devin P. Cohen, J.) granted the motion. Prior to the entry of the Civil Court’s February 9, 2016 order, Global Liberty had commenced a declaratory judgment action in the Supreme Court, Bronx County, against Monique Diaz and Bronx Medical, among others, seeking a declaration that there was no coverage on the part of Global Liberty as a result of the October 8, 2014 accident. A judgment was subsequently entered in the Civil Court on March 8, 2016, pursuant to its February 9, 2016 order, awarding Bronx Medical the principal sum of $1,758.40. Thereafter, by order dated May 20, 2016, the Supreme Court granted a motion by Global Liberty and ordered that “all arbitrations, civil lawsuits, judgments and other proceedings seeking no-fault benefits regarding a motor vehicle accident involving Monique Diaz…which occurred on 10/8/14 that have been brought or may be brought by [Diaz and providers including Bronx Medical] are hereby permanently stayed and any judgments are vacated.” On the basis of the May 20, 2016 Supreme Court order, Global Liberty moved in the Civil Court to vacate the March 8, 2016 judgment and, upon such vacatur, to deny plaintiff’s prior unopposed motion and dismiss the complaint. Bronx Medical opposed the motion and appeals from an order of the Civil Court (Michael Gerstein, J.) entered November 27, 2017 granting the motion. Reliance by the Civil Court and defendant upon the part of the Supreme Court’s order stating that “any judgments are vacated” is misplaced, as, “in general, relief from a judgment may only be sought from the court which rendered it” (Chestnut Hill Real Estate v. Contractors Cas. & Sur. Co., 280 AD2d 446, 446 [2001]; see Commissioner of Labor of State of N.Y. v. Hinman, 103 AD2d 886 [1984]). Furthermore, the record before us indicates that, before the Supreme Court issued its May 20, 2016 order, which, among other things, restrained the prosecution of any pending actions, the Civil Court, by order entered February 9, 2016, had granted Bronx Medical’s motion for summary judgment, thus completing the court’s judicial function (see Vogel v. Edwards, 283 NY 118 [1940]; SS Med. Care, P.C. v. 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, within days after the Civil Court granted Bronx Medical summary judgment, Bronx Medical submitted its proposed judgment to the Civil Court. No action was taken by the parties after the May 20, 2016 Supreme Court order.1 The entry of the judgment in the Civil Court on March 8, 2016, pursuant to the February 9, 2016 order, was simply a ministerial act of the clerk (see SS Med. Care, P.C. v. 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U]; see e.g. Aetna Cas. & Sur. Co. v. Whitestone Gen. Hosp., 142 Misc 2d 67 [Sup Ct, NY County 1988]), and thus no violation of the Supreme Court’s May 20, 2016 order restraining the prosecution of the action occurred (see SS Med. Care, P.C. v. 21st Century Ins. Co., 64 Misc 3d 142[A], 2019 NY Slip Op 51267[U]). Consequently, Global Liberty’s motion to vacate the March 8, 2016 Civil Court judgment based on the Supreme Court’s May 20, 2016 order should have been denied. Accordingly, the order is reversed and defendant’s motion to vacate the March 8, 2016 default judgment and, upon such vacatur, to deny plaintiff’s prior motion and dismiss the complaint is denied. WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur. November 15, 2019 1. We note that we are aware of the Supreme Court’s February 11, 2016 order to show cause which contained a stay of Bronx Medical in this action, among others. However, as defendant made its motion to vacate the judgment in the Civil Court on the basis of the Supreme Court’s May 20, 2016 order, we do not consider the February 11, 2016 order. In any event, the record is devoid of any indication when the Supreme Court’s February 11, 2016 order was served on Bronx Medical or exactly when Bronx Medical applied for judgment in the Civil Court. By: Weston, J.P., Aliotta, Siegal, JJ. Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Fishkin & Associates (Thomas G. Carton and Ross Van Tuyl of counsel), for respondent. 2018-733 K C. EXCEL SURGERY CTR., LLC v. METROPOLITAN PROP. AND CAS. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 7, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks to recover the unpaid balance of a claim for services rendered on February 9, 2015. Defendant moved for summary judgment dismissing the complaint on the ground that the disputed medical services had been rendered in New Jersey, and that defendant had fully paid the claim in accordance with the New Jersey Automobile Medical Fee Schedule (see 11 NYCRR 68.6 [b], [c]). Plaintiff opposed the motion. By order entered December 7, 2017, the Civil Court granted defendant’s motion. While plaintiff argues that defendant failed to establish that it had timely mailed its denial of claim form, 11 NYCRR 65-3.8 (g) (1) (ii), effective April 1, 2013 (see 11 NYCRR 65-3.8 [g] [2]), provides that “no payment shall be due for…claimed medical services under any circumstances…for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (see also Oleg’s Acupuncture, P.C. v. Hereford Ins. Co., 58 Misc 3d 151[A], 2018 NY Slip Op 50095[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). As the services at issue were provided on February 9, 2015, defendant was not required to establish that it had timely denied the claim in order to preserve its fee schedule defense (see 11 NYCRR 65-3.8 [g] [1] [ii]; Precious Acupuncture Care, P.C. v. Hereford Ins. Co., 58 Misc 3d 147[A], 2018 NY Slip Op 50042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Defendant supported its motion for summary judgment dismissing the complaint with an affidavit by a certified medical coder from a third-party company retained by defendant. Upon a review of the record, we find that the coder’s affidavit was sufficient to establish, prima facie, that defendant had fully paid the claim submitted by the New Jersey provider in accordance with the New Jersey medical fee schedule (see 11 NYCRR 68.6 [b], [c]). In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that he possessed personal knowledge of the facts. Plaintiff’s remaining contentions lack merit. Accordingly, the order is affirmed. WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur. November 15, 2019 By: Pesce, P.J., Aliotta, Siegal, JJ. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. 2018-1501 K C. ULTRA ORTHO PRODS., INC. v. GEICO INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order entered June 18, 2018, the Civil Court denied the motion and cross motion, but found, in effect pursuant to CPLR 3212 (g), that the only issue remaining for trial was whether plaintiff had failed to appear for the scheduled EUOs. Defendant appeals, as limited by its brief, from so much of the order as denied its cross motion. The proof submitted by defendant was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v. GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), which showing plaintiff failed to rebut. To the extent plaintiff challenges the Civil Court’s implicit CPLR 3212 (g) findings in favor of defendant with respect to the mailing of the EUO scheduling letters and denial of claims forms, the proof submitted by defendant was sufficient to demonstrate that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted. PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur. November 15, 2019 By: Weston, J.P., Aliotta, Siegal, JJ. Schumann Solages, appellant pro se. Hammill, O’Brien, Croutier, Dempsey, Pender and Koehler, P.C (Anton Piotroski of counsel), for respondent. 2018-1875 K C. SOLAGES v. NATIONAL GRID — ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the action is denied. In this small claims action seeking $4,990.61 for an “overcharge,” plaintiff appeals from an order of the Civil Court granting defendant’s motion to dismiss the action on the ground that the Public Service Commission has primary jurisdiction to resolve what defendant describes as a billing dispute. In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). “The doctrine of primary jurisdiction is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. The doctrine is intended to coordinate the relationship between courts and administrative agencies so that the agency’s views on factual and technical issues, as well as the scope and meaning of the statute administered by the agency, are made available where the matter before the court is within the agency’s specialized field” (2 NY Jur 2d, Administrative Law §328; see also Capital Tel. Co. v. Pattersonville Tel. Co., 56 NY2d 11 [1982]). The doctrine comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body” (2 NY Jur 2d, Administrative Law §328). “There is no fixed formula governing the application of the doctrine to the facts of a particular case. Rather, the court must determine in each case whether the reasons for the doctrine are present and whether the purposes of the doctrine will be served by its application” (Heller v. Coca-Cola Co., 230 AD2d 768, 769 [1996]). We find that, based on the papers submitted to the Civil Court, it cannot be said that it has been established that the resolution of plaintiff’s claims would require “the special competence of an administrative body” (2 NY Jur 2d, Administrative Law §328). Plaintiff does not seem to challenge, for example, the reasonableness of defendant’s rates or raise any other issue requiring the expertise of the Public Service Commission (cf. Lamparter v. Long Is. Light. Co., 90 AD2d 496, 496 [1982]; Guglielmo v. Long Is. Light Co., 83 AD2d 481, 484 [1981]; Filler v. Consolidated Edison, 39 Misc 3d 128[A], 2013 NY Slip Op 50423[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Instead, plaintiff’s claim appears to be merely a dispute over what amount of money he has paid to defendant, in which case “no coordination between the court action and any administrative agency proceeding is necessary, as there is no risk of inconsistent dispositions” (Amoamah v. Fried, 48 Misc 3d 64, 65 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, we find that, on this record, the court’s dismissal of plaintiff’s action failed to render substantial justice between the parties (see CCA 1807). However, if, at trial, it appears that plaintiff is not simply seeking money in this action, but is, instead, seeking injunctive relief or a declaration that he does not owe money to defendant, we note that such relief is not available in this forum (see CCA 1801 [a small claims action is a cause of action "for money only"]). Moreover, if plaintiff raises issues at trial which require the expertise of the Public Service Commission or would risk inconsistent dispositions between that agency and the courts, the doctrine of primary jurisdiction would apply to his claims. Accordingly, the order is reversed and defendant’s motion to dismiss the action is denied. WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur. November 15, 2019
