Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Quality Medical Healthcare of Ny, P.C. As Assignee of Bianca Villaroel v. Ny Central Mutual Fire Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


December 3, 2010

QUALITY MEDICAL HEALTHCARE OF NY, P.C. AS ASSIGNEE OF BIANCA VILLAROEL,
RESPONDENT,
v.
NY CENTRAL MUTUAL FIRE INSURANCE COMPANY,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered June 16, 2009. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,650. The appeal from the judgment brings up for review (see CPLR 5501 [c]) an order of the same court (Diane A. Lebedeff, J.), dated August 8, 2006, which, upon denying plaintiff's motion for summary judgment and defendant's cross motion for summary judgment, provided that the only issue of fact was whether the fees charged were excessive and limited the trial to that issue, citing CPLR 3212 (g).

Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on December 3, 2010

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

ORDERED that the judgment is reversed, without costs, so much of the order dated August 8, 2006 as provided that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

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. By order dated August 8, 2006, the Civil Court denied both the motion and the cross motion, found that the only triable issue of fact was whether the fees charged were excessive and stated that the trial was limited to that issue, citing CPLR 3212 (g).

In accordance with the August 8, 2006 order, the non-jury trial began with defendant's presentation of its defense. Defendant's attorney sought to present evidence to demonstrate, in effect, that plaintiff was not eligible for reimbursement under the No-Fault Law because plaintiff's sole shareholder was not licensed or certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). The Civil Court would not allow defendant to present this evidence because, the court found, it was barred by the August 8, 2006 order, which limited the issue for trial to the excessiveness of the fee schedule. When defendant failed to proffer any evidence as to its fee schedule defense, plaintiff moved for a directed verdict and the court granted plaintiff's motion. Subsequently, a judgment was entered in favor of plaintiff, and the instant appeal by defendant ensued.

On appeal, defendant argues, in effect, that the August 8, 2006 order improperly barred defendant from asserting its defense that plaintiff was not eligible for reimbursement under the No-Fault Law pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.16 (a) (12). Defendant also argues, in effect, that to the extent said order could be interpreted to read that plaintiff did not have to prove its case at trial, the order was improper.

The CPLR authorizes a court, on a motion for summary judgment, to limit issues of fact for trial where it is able to "ascertain what facts are not in dispute or are incontrovertible" (CPLR 3212 [g]). Under that circumstance, the court is directed to "make an order specifying such facts," which will then "be deemed established for all purposes in the action." In addition, the court is permitted to "make any order as may aid in the disposition of the action."

Upon a review the record, we find that there was no basis in this case for the Civil Court to have limited issues for trial pursuant to CPLR 3212 (g). First, the record does not demonstrate that there is no dispute, or that it is incontrovertible, that plaintiff had submitted "proof of the fact and amount of loss sustained" to defendant and that defendant had failed to pay the claim within 30 days of receipt of such proof (see Insurance Law § 5106 [a]). Furthermore, the record does not demonstrate that, of the 31 defenses raised by defendant in its answer, none were viable except for the excessiveness of the fee schedule, which is the implication of an order limiting the trial to this defense. Indeed, it is noted that, in opposition to plaintiff's motion, defendant submitted sufficient evidence to raise a triable issue of fact as to whether plaintiff was certified to practice acupuncture at the time that the acupuncture services at issue were rendered (see Insurance Department Regulations [11 NYCRR] § 65-3.16 [a] [12]; Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co., 26 Misc 3d 139[A], 2010 NY Slip Op 50262[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; see also State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]).

Accordingly, the judgment is reversed, so much of the order dated August 8, 2006 as stated that the trial was limited to the issue of whether the charges were excessive is vacated and the matter is remitted to the Civil Court for a new trial.

Weston, J.P., Golia and Rios, JJ., concur. Decision Date: December 03, 2010

20101203

© 1992-2010 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.