GBI Acupuncture, P.C. v. Esurance Ins. Co.

• Decision Date: 26 December 2012
• Docket Number: No. 126179/09.,126179/09.
• Citation: 2012 N.Y. Slip Op. 52423,38 Misc.3d 1208,967 N.Y.S.2d 867
• Parties: GBI ACUPUNCTURE, P.C. and Liberty Chiropractic P.C., a/a/o Lorraine Campbell, Plaintiff, v. ESURANCE INSURANCE COMPANY, Defendant.
• Court: New York Civil Court

38 Misc.3d 1208

967 N.Y.S.2d 867

2012 N.Y. Slip Op. 52423

GBI ACUPUNCTURE, P.C. and Liberty Chiropractic P.C., a/a/o Lorraine Campbell, Plaintiff,

v.ESURANCE INSURANCE COMPANY, Defendant.

No. 126179/09.

Civil Court, City of New York, Kings County.

Dec. 26, 2012.

Law Offices of Melissa Betancourt, Brooklyn, for Plaintiff GBI Acupuncture, P.C. and Liberty Chiropractic P.C.

Law Offices of Michael G. Nashak, Brooklyn, for Defendant Esurance Ins. Co.

HARRIET L. THOMPSON, J.

Motion Cal No.Motion Seq. #

Papers Submitted to Special Term on 3/27/12,

DECISION/ORDER

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this Motion

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                ¦Notice of Motion                          ¦1–2, 3  ¦
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                ¦Order to Show Cause and Affidavits Annexed¦          ¦
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                ¦Answering Affidavits                      ¦4         ¦
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This action was commenced in or about December 3, 2009 by the service of a Summons and Complaint to recover first-party No–Fault benefits as a result of alleged injuries arising out of an alleged automobile accident which occurred on May 12, 2009. In or about March 11, 2010, the Defendant interposed a Verified Answer by its attorney which contained various affirmative defenses to the underlying complaint.

PROCEDURAL HISTORY

The Defendant, by Notice of Motion, moves this Court pursuant to CPLR § 3212 for summary judgment dismissing the complaint. The Defendant contends that the complaint lacks merit because the Assignor, after service of timely and proper notices of four independent requests for examinations under oath (hereinafter referred to as “EUO”), at four different addresses to the assignor and two notices to her attorney, she and her attorney failed to appear. The Defendant proffers three supporting affidavits; to wit: ERIN SCHABE, the Claim Representative who attests to the receipt of the medical bills from the assignee, and the timely mailing of the denials based on the aforementioned breach of the insurance policy; JASON FORTIER as Claims Manager who attests to the mailing practices and procedures of the Defendant and assures this court that the proper procedures were employed by the Defendant to assure that the denials were timely and properly mailed in accordance with said practices and procedures, and were not returned to the Defendant as undeliverable; MICHAEL G. NASHAK, ESQ., the Managing Attorney for the Brooklyn Staff Counsel Office that attests to the proper business practices and procedures employed by his office in mailing, scheduling and conducting EUO's in the ordinary course of business of his law office; MERCEDES ROMERO, his assistant clerk that attests to drafting and scheduling the EUO notices and having them signed by the aforesaid managing attorney, the mailing the EUO notices by regular mail or certified mail, return receipt requested, “where indicated”, confirming the EUO appearances, awaiting the arrival of the claimant and notifying the Managing Attorney and the Defendant of the appearance or nonappearance of the claimant at the EUO. The Defendant asserts that the failure of the Plaintiff to provide additional verification by the failure to appear for an EUO is a breach of an express condition precedent of the insurance policy and state regulations, and accordingly, the Plaintiff is not entitled to payment of No–Fault benefits under the policy. Consequently, the Defendant claims that there are no triable issues of fact and judgment should be granted in its favor.

In opposition to the Defendant's motion, the Plaintiff attacks the sufficiency of the affidavit of each of the above named individuals, namely the lack of specificity of the time of mailing in ERIN SCHABE'S affidavit; the defective affirmation of MICHAEL G. NASHAK, ESQ., which excludes the state and county on the affirmation and lack of a legally sufficient caption of this case and argues that the affirmation neglects to specify that he was present in the office on the date of the alleged nonappearance by the assignor; the affidavit of MERCEDES ROMERO that lacks the proper index number for the case, proper legal caption and the name of the court. In addition, Plaintiff contends that MERCEDES ROMERO cannot attest to the nonappearance of the assignor on August 19, 2010 and September 10, 2009 because she did not work at that scheduled location. Further, the Plaintiff claims that the Defendant neglected to annex a letter dated August 19, 2009 to prove the proper number of EUO requests mandated by case authority and the insurance regulations to prove noncompliance with the insurance policy; the affidavit of MERCEDES ROMERO and MICHAEL G. NASHAK, ESQ., do not contain any certificate of mailing as alleged in their affidavits and thus, lack credibility; the EUO letters do not comport with the insurance regulations insomuch that the 3rd EUO letter and 4th EUO letter are only twelve (12) days apart; and the Defendant failed to establish that the EUO letters dated July 29, 2009 and September 4, 2009 were sent to the assignor and to her attorney.

The Plaintiff, by Notice of Cross Motion, moves this Court pursuant to CPLR § 3212 for summary judgment asserting that the Plaintiff timely and properly mailed the prescribed bills and assignment of benefit form for No–Fault benefits; the Defendant received the bills and assignment of benefits form; the Defendant did not timely deny the bills; and the bills remain unpaid and are overdue. The Plaintiff presents the affidavit of YAKOV SIMKHAEV, the Supervisor of Billing for both assignors, that attests to the office practices and procedures for generating and mailing of their No–Fault claims and verification, and receipt of the denials. She describes the business practice and procedures of the office of the Plaintiff from the initial office visit of the claimant to the creation of the medical bills generated in the ordinary course of business. She states that she personally mailed the bills by first class mail with a certificate of mailing; and affirms that payment is overdue on the bills.

FINDING OF FACTS AND CONCLUSION OF LAW

This court is cognizant of the reality that many lawyers invariably seize every opportunity to assert the right to victory by summary judgment based on “technical” or “procedural” irregularities in the pleadings. More often than not, these claims are often obscure and insignificant to the ultimate outcome of the litigation.

Having this prospective in mind, lets look to the law, specifically, CPLR § 104 that states that the Civil Practice Law and Rules shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding. This section of the law was intended to liberalize court procedures and do away with unnecessary and burdensome motion practice. The courts in this state, where at one time, “formal precision was the sovereign talisman ...” have long ago held that “the rule of strict construction of statutes in derogation of the common law principles [are] inapplicable”. Schneider v. Schneider, 17 N.Y.2d 123, 127, 269 N.Y.S.2d 107, 216 N.E.2d 318, 320 (1966). One of the few areas that the courts continue to enforce procedural conservatism is with provisional remedies. Valentine Dolls, Inc. v. McMillan, 25 Misc.2d 551, 202 N.Y.S.2d 620 (1960).

With the same principles at the forefront, careful attention should also be given to a companion provision of the CPLR, namely, Section 2001 which maintains that “at any stage of an action the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just. This section is supportive of the policy in this state that just determination shall be based on matters of substance, not form and to the ultimate end of justice, that slight mistakes or irregularities shall not invalidate legal proceedings.

As significant, there are other related provisions in the CPLR that should also be reviewed to this end. CPLR 5512(a) and 5520 make express provision for similar relief in connection with omissions or defects in taking appeals. Looking to CPLR § 3026 which expressly mandates that pleadings shall be liberally construed and that defects in pleadings shall be ignored if a substantial right of a party is not prejudiced. The reader is urged to generally review the Practice Commentaries in the CPLR under these respective statutory provisions; also see Siegel, New York Practice § 6, et seq. (2nd ed.)

These statutes are routinely enforced by our courts and more recently, the Appellate Division, Second Department, reaffirmed the underlying policy of the judiciary in an election law case where the court found that the Supreme Court properly amended the caption to designate an individual, who was originally denominated as the respondent to the petitioner on the grounds that the “defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice; see also MacKay v. Johnson, 54 A.D.3d 428, 863 N.Y.S.2d 85 [2008]; and Hoot Croup, Inc. v. Caplan, 9 A.D.3d 448, 779 N.Y.S.2d 922 [2004] finding in a case where the plaintiff properly commenced the action in the Supreme Court, Dutchess County and the summons and complaint incorrectly bore a “County Court, Dutchess County” caption, that this ministerial error provided no basis for...