| Westchester Med. Ctr. v Lincoln Gen. Ins. Co. |
| 2011 NY Slip Op 02379 [82 AD3d 1085] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Westchester Medical Center, Respondent, v LincolnGeneral Insurance Company, Appellant. |
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In an action to recover no-fault medical benefits under an insurance contract, the defendantappeals from an order of the Supreme Court, Nassau County (Martin, J.), entered October 28,2009, which denied its motion pursuant to CPLR 5015 (a) to modify a judgment of the samecourt dated April 30, 2009, which, upon an order granting the plaintiff's motion for summaryjudgment on the complaint, was in favor or the plaintiff and against it in the principal sum of$416,039.42.
Ordered that the order entered October 28, 2009, is affirmed, with costs.
The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against thedefendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefitsunder a contract of insurance entered into between the plaintiff's assignee and the defendant. Thedefendant thereafter moved to modify the judgment pursuant to CPLR 5015 (a), belatedlyasserting that the judgment exceeded the coverage limit of the subject policy due, in part, topayments previously made under the policy to other health care providers. In the order appealedfrom, the Supreme Court properly denied the defendant's motion to modify the judgment.
The defendant failed to specify on which of the five subdivisions of CPLR 5015 (a) itsmotion was based, much less establish its entitlement to relief on any of the enumerated grounds.To the extent that the defendant sought modification pursuant to CPLR 5015 (a) (2) based upon"newly-discovered evidence," the defendant failed to demonstrate that the evidence offered insupport of the motion, i.e., an affidavit of an employee setting forth the policy limits and theamount of benefits paid for alleged prior claims, "was not available at the time of theprejudgment proceedings" (Jonas vJonas, 4 AD3d 336, 336 [2004]; see Sicurelli v Sicurelli, 73 AD3d 735 [2010]).
Moreover, although courts possess inherent discretionary power to grant relief from ajudgment or order in the interest of justice, this "extraordinary relief" is not appropriate under thecircumstances presented (Jakobleff v Jakobleff, 108 AD2d 725, 726-727 [1985]; seeSelinger v Selinger, 250 AD2d 752 [1998]). The plaintiff previously moved for summaryjudgment on the complaint, seeking a certain amount of benefits, in accordance with the no-faultbilling statement sent to the defendant, and [*2]this Courtreversed the denial of that motion and granted the plaintiff's motion for summary judgment onthe complaint (see Westchester Med.Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Only after the plaintiff obtained,upon this Court's order, a judgment from the Clerk of the Supreme Court, Nassau County,representing, inter alia, the amount of benefits sought in the complaint, did the defendant raisethe issue of exhaustion of the policy limits. Under these circumstances, modification of thejudgment in the interest of justice is not warranted.
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Austin and Sgroi,JJ., concur.
Motion by the respondent to dismiss an appeal from an order of the Supreme Court, NassauCounty (Martin, J.), entered October 28, 2009, on the ground that the appeal is frivolous, and toimpose a sanction upon the appellant and for an award of an attorney's fee. By decision and orderon motion of this Court dated March 19, 2010, the motion was held in abeyance and referred tothe panel of Justices hearing the appeal for determination upon the argument or submissionthereof.
Upon the papers filed in support of the motion, the papers filed in opposition or relationthereto, and upon the argument of the appeal, it is
Ordered that the motion is denied. Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.