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Ava Acupuncture, P.C. As Assignee of Marlene Tucker v. Geico General Ins. Co

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


February 9, 2012

AVA ACUPUNCTURE, P.C. AS ASSIGNEE OF MARLENE TUCKER, APPELLANT,
v.
GEICO GENERAL INS. CO., RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), dated November 6, 2009.

Ava Acupuncture, P.C. v GEICO Gen. Ins. Co.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2012

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

The order granted defendant's motion to amend its answer to add affirmative defenses.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for leave to amend its answer, approximately four years after joinder of issue, to add affirmative defenses asserting the existence of a personal injury deductible in the insurance contract and denying that plaintiff's assignor was an eligible injured person. The Civil Court granted the motion.

Plaintiff does not deny that the underlying insurance contract contains a deductible or that defendant's timely NF-10 denial of claim forms asserted the existence of the deductible (see e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U] [App Term, 2d & 11th Jud Dists 2005]). Although there was a lengthy period of time between the joinder of issue and the making of the motion to amend, lateness alone is not a barrier to amendment absent a showing of "significant" prejudice to the opposing party (Rodriguez v Panjo, 81 AD3d 805, 806 [2011]; see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]), or that the proposed defenses are "patently devoid of merit" or "palpably insufficient to state a . . . defense" (Lucido v Mancuso, 49 AD3d 220, 229 [2008]; see also Ingrami v Rovner, 45 AD3d 806, 808 [2007]; Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 24 Misc 3d 137[A], 2009 NY Slip Op 51570[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion's merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant's claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion's denial is not established (e.g. Carr v Ruffino, 6 Misc 3d 130[A], 2005 NY Slip Op 50071[U]).

Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation (New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 [2011]; John T. Mather Mem. Hosp. v Linzer, 32 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2011]; see Ops. Gen. Counsel NY Ins. Dept. No 08-04-16 [April 2008] [assignee-provider "may pursue all of the remedies that would have been available to the patient"]). Upon the record before us, we find that the Civil Court did not improvidently exercise its discretion in granting defendant leave to amend its answer to interpose the aforementioned affirmative defenses (CPLR 3025 [a]; see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]).

Accordingly, the order is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. Decision

Date: February 09, 2012

20120209

© 1992-2012 VersusLaw Inc.



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