Stanley Liebowitz, M.D. P.C. v. American Tr. Ins. Co., 2007 NY Slip Op 50372(U) (N.Y. App. Term 2/27/2007)

• Decision Date: 27 February 2007
• Docket Number: 2006-3 QC.
• Citation: 2007 NY Slip Op 50372
• Parties: STANLEY LIEBOWITZ, M.D. P.C. A/A/O MARION GOLDEN, Respondent, v. AMERICAN TRANSIT INSURANCE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Term

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2007 NY Slip Op 50372(U)

STANLEY LIEBOWITZ, M.D. P.C. A/A/O MARION GOLDEN, Respondent, v. AMERICAN TRANSIT INSURANCE COMPANY, Appellant.

2006-3 QC.

2006-3 QC.

Appellate Term of the Supreme Court of New York, Second Department.

Decided February 27, 2007.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gerald Dunbar, J.), entered October 28, 2005, deemed an appeal from the judgment entered March 26, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered November 10, 2005 which granted plaintiff's unopposed cross motion for summary judgment, awarded plaintiff the principal sum of $12,125.52.

Appeal dismissed.

PRESENT: PESCE, P.J., GOLIA and BELEN, JJ

Since defendant failed to submit written opposition to plaintiff's cross motion seeking summary judgment, that branch of the order which granted plaintiff's cross motion for summary judgment was entered on default and defendant is not aggrieved thereby (see CPLR 5511; Coneys v. Johnson Controls, Inc., 11 AD3d 576 [2004]; Marino v. Termini, 4 AD3d 342 [2004]; Adamson v. Evans, 283 AD2d 527 [2001]). As a result, the appeal from the judgment, which was entered pursuant to said order, is dismissed.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs in the following memorandum:

I concur with my colleagues in their ultimate determination that a default in responding to a motion must result in a denial of appellate review.

I, nevertheless, wish to address a misconception of the law in the decision and order of the lower court which granted summary judgment in favor of the plaintiff upon the default of the defendant in not responding to plaintiff's motion.

The lower court initially held that plaintiff proved its prima facie case by means of establishing the timely receipt of the claims by submission of the defendant's NF-10 denial forms.

That court then addressed the sufficiency of the NF-10 denial form and found that the "NF-10 is not specific and requires one to consider other documents not included." Inasmuch as the NF-10 denial specifically stated that the fees charged were in "excess of the no-fault schedule," it would seem to indicate that the "other documents" to which the lower court refers, is the no-fault fee schedule which allegedly was not attached to the defendant's NF-10.

The question then presented is whether or not the failure to attach a copy of the no-fault fee schedule permits a court to grant a money judgment allegedly in excess of the amount permitted by Insurance Department no-fault regulations. I believe that it does not. In support, I look to CPLR 4511 (a) which requires that "[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state . . ." (see also People v. Wiley, 59 Misc 2d 519 [1969]; People v. Stuck, 54 Misc 2d 811 [1967]). These of course, include the regulations of the New York State Insurance Department.

Clearly, the lower court had no alternative but to take judicial notice of the Insurance Department regulations. Those regulations require that medical procedures are to be billed at the...