Recitation of the papers considered in reviewing the underlying motion as required by C.P.L.R. §2219(a) Papers Numbered Plaintiff’s Notice of Motion, Affirmation, Affidavits, and Exhibits in Support 1 Defendant’s Affirmation in Opposition 2 DECISION AND ORDER Upon the foregoing cited papers, the Decision and Order on plaintiff’s motion pursuant to CPLR 2221(a) for leave to reargue the decision dated January 25, 2024 is decided as follows: Pursuant to CPLR §2221(a) “A motion to renew and reargue a prior motion for leave to appeal from, or to stay, vacate, or modify an order shall be made on notice to the judge who signed the order…(d) A motion shall for leave to reargue: (1) shall be identified specifically as such; (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of entry…” (See Midwood Medical Equipment & Supply, Inc. v. USAA Cas. Ins. Co., 25 Misc 3d 139[A] [App Term, 2nd, 11th & 13th Jud Dists 2009; William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22 [1st Dept 1992]). The Court has reviewed its Decision and Order dated January 25, 2024, and grant’s defendant’s motion to renew and reargue and upon reconsideration vacates and sets aside its prior Order dated January 25, 2024. The Court corrects the record that there is no cross motion. Based on the motion papers submitted, Defendant’s denial of plaintiff’s claim was timely issued on July 8, 2020, in response to claim filed on June 17, 2020, and received by MVAIC on June 25, 2020, for dates of service from 8/28/2018 through 8/28/2018, in the amount of $6,750.00. (Kadushin affirmation, exhibit C). There is no dispute that the bill was submitted past the statutory deadline of 45 days following the service provided. However, Plaintiff contends that Rodriguez’s attorney did not receive confirmation that Rodriguez was an eligible party for MVAIC until May 29, 2020, and that is why the bill submission was delayed. (Smith affirmation, 10). Hence, there is a triable issue as to whether there is sufficient reasonable justification for the late filing. (See V) Arthroscopy & Sports Medicine PLLC v. MVAIC, 15 Misc 3d 89 [1st Dept 2007]). Defendant and Plaintiff agree that Plaintiff’s bill should total $2,303.41, pursuant to the 2012 New York Workers’ Compensation Fee Schedule. (Evangelista affirmation, 10; Smith affirmation, 4). Accordingly defendant’s motion to reduce the ad damnum to $2,303.41 is granted. Based on the foregoing, it is hereby, ORDERED, Defendant’s motion to renew and reargue is Granted and on reconsideration the Court vacates and sets aside its Order dated January 25, 2024; and it is further ORDERED, Defendants motion for summary judgment is Granted, solely to the extent that it proved its prima facie case as to timely denial; however, a hearing will be held on the issue of whether a reasonable justification exists for the late claim filing; and it is further ORDERED, defendant’s motion to reduce the ad damnum to $2,303.41 to reflect the applicable fee schedule rate conceded to by plaintiff is Granted; and it is further ORDERED, upon the filing of a Notice of Trial this matter shall proceed to a virtual hearing on the limited issues of whether a reasonable justification exists for the late claim filing; and it is further ORDERED, Defendant shall serve a copy of this order with notice of entry within thirty (30) days and file proof of service with the Court. This constitutes the decision and order of the Court. Dated: July 17, 2024
